20140222-G. H. Schorel-Hlavka O.W.B. To HM Queen Elizabeth II - Various Issues

WITHOUT PREJUDICE
Her Majesty The Queen Buckingham Palace London SW1A 1AA

C/o info@balmoralcastle.com Cc: Mr Tony Abbott PM Tony.Abbott.MP@aph.gov.au
22-2-2014
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Ref: Objection to the appointment of Mr Peter Cosgrove as Governor-General & various other matters including request for Her Highnes to invoke prerogative powers to refer matters of this correspondence to be heard and determined by the Privy council, etc. Your Majesty, with all due respect, I write to you albeit English is not my native language, and I neither had any former education in the English language, I may not follow the correct grammatical usage of the English language but nevertheless my writings must be considered for the message it seeks to convey. Some of the issues referred to below but not in any order of importance: Mr Peter Cosgrove not being a fit and proper person represents Her Majesty as Governor-General. Current and former Governor-Generals so to say having a blind eye to unconstitutional conduct by Ministers, judges, etc. Ministers of the crown fraudulently taking monies from Consolidated Revenue Funds. Unconstitutional invasion by the commonwealth into the State Court judiciary. Fraudulent obtaining monies from Consolidated Revenue funds in various ways. Denial of constitutional right to be and remain a Subject of the British Crown. Unconstitutional corporate Federal Government and State Governments Unconstitutional incorporation and/or making business units of Court by this failing to be independent and impartial courts. High Court of Australia acting bias High Court of Australia FRATERNIZING with defendant High Court of Australia acting beyond its constitutional judicial powers. State Governments having set up a system to make innocent people criminals without a FAIR And PROPER trial. In the overall the various governments and the various judiciaries have created dictatorship and inflicted in the process terrorism upon citizens no matter how law abiding they might be. Further and other issues referred to below
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22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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It is my understanding as a self-educated CONSTITUTIONALIST that Her Majesty can invoke prerogative powers to refer the matters stated in this document to the Privy Council. It must be obvious that for the issues canvassed in this correspondence there is no way these matters can be dealt with appropriately by any of the courts, including the High court of Australia to which I hold committed treasonous acts, referred to below.
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Kevin Rudd PM 18-1-2010 C/o R.McClelland.MP@aph.gov.au 10 Cc: Her Majesty Queen Elizabeth the Second, UK C/o R.McClelland.MP@aph.gov.au His Royal Highness Prince Charles C/o R.McClelland.MP@aph.gov.au His Royal Highness Prince William C/o R.McClelland.MP@aph.gov.au Governor-General Q Bryce governor-general@gg.gov.au 10 Tony Abbott Leader of the opposition Tony.Abbott.MP@aph.gov.au Malcolm Turnbull MP Malcolm.Turnbull.MP@aph.gov.au . AND TO WHOM IT MAY CONCERN 20 . Re: MONARCHY - NATIONALITY- etc Kevin,
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I QUESTION that the then Prime Minister Kevin Rudd actually forwarded to Your Majesty a copy of this correspondence. Likewise I doubt that Governor-General Q Bryce did so. In my view a deliberate conduct to undermine the Monarchy. While, as outlined below the High Court of Australia may desire to be the ultimate adjudicator in constitutional and other matters, it ought to become very clear that while this may be applied to citizens of the Commonwealth of Australia, including corporations formed within the Commonwealth of Australia, it is different for corporations from foreign countries as they now appear to be entitled by treaties entered into by the Federal Government to side step the High Court of Australia decision as to appeal the matter to a foreign court. Which clearly violated the constitution and its embedded legal principles.
index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635 Essenberg v The Queen B55/1999 (22 June 2000) QUOTE But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to. END QUOTE
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This statement alone ought to make clear that there is a major problem within the judiciary. No such constitutional legislative powers exist within the Commonwealth of Australia Constitution Act 1900 (UK)!
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE
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In my view no one in his right mind could even remotely hold that to legislate for every blueeyed baby to be killed can be for peace, order, and good government for the whole of the peoples whom it will embrace and unite. The mentality expressed by the High Court of Australia is clearly questionable at the very least. As set out also below its conduct to FRATERNISE with a First Defendant and then subsequently railroad the Applicants case itself may underline there are serious issues to be addressed. Because Your Majesty cannot get personally involved in the political arena and/or in the judicial arena (but bound by the coronation oath) I hold that it therefore is appropriate that Your Majesty involved the Privy Council instead to deal with relevant matters. The issue is not what anyone may or may not have as political views but rather what is and must be held appropriate on basis of law, foremost as to the Commonwealth of Australia Constitution Act 1900 (UK). I maintain that by naturalisation within the framework of the Commonwealth of Australia Constitution Act 1900 (UK) I became a Subject of the British Crown and exercise my rights and entitlements accordingly. It will be for the Privy Council to determine on basis of law (and not fiction as is occurring in the High Court of Australia) if the constitutional embedded rights to be Subjects of the British Crown can be eroded by the judiciary without the constitution itself having been amended by the British Parliament. It is my position that the High Court of Australia was and remains to be bound by the legal principles embedded in the Commonwealth of Australia Constitution Act 1900 (UK) and therefore it violated its judicial powers to conduct itself otherwise. Because the issue of nationality is one that would affect each and every judge, the members of the legal profession as well as politicians and Governor-General/Governors it is therefore essential that this is litigated in an impartial judicial environment to which the High Court of Australia cannot succeed as it would place each and every judge in conflict with his own personal standing. As referred to below I extensively litigated these and other matters on 19 July 2006 before the County Court of Victoria and comprehensively defeated the Commonwealth of Australia, who didnt challenge any of my numerous (constitutionally based) submissions. The Court didnt provide a Reason of Judgment but did issue a statement which is included below showing that my appeals were upheld. This correspondence is not and neither must be considered to include all relevant matters , safe to say it is a horrific version of events that citizens, not just myself, are subjected to and must endure while this rot is going on. It would not be reasonable to include all relevant details as this correspondence already in itself comes to some 400 odd pages and so further and other details will be relied upon where Your Majesty refer this matter to the Privy council. There are many citizens who have great respect for the British Crown and they should not be dissolutioned that Her Majesty having the prerogative powers to refer this matter to the Privy Council may not do so, and leave them by this to continue to suffer under what I would hold to be government sponsored terrorism.
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EITHER WE HAVE A CONSTITUTION OR WE DONT!

We, the people, Your Majesty subject are entitled that Your Majesty will invoke prerogative powers so that the Privy Council for once and for all can deal with matters on a legal basis. If the Privy Council were to rule adverse to the British Crown then so be it and citizens of the Commonwealth of Australia would then be entitled to explore their own ways to create a constitution that is most suitable to them and where whomever is the Head of State will provide the appropriate support and protection that every citizen is entitled upon.
22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p3
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As a CONSTITUTIONALIST it is my position that whatever the true meaning and application of the constitution is must be adhered to by all. It is and always was within the powers of the electors to amend certain parts (128 sections) of the constitution if they desired to do so, as they proved at times to do. Hence, unless and until the constitution is amended (within the limited powers to which s128 applies) the constitution must be applied as is. We all may dislike the laws at times and there are rights in every citizen to oppose certain laws they deem inappropriate and indeed the Framers of the Constitution embedded in the constitution the legal principle of NULLIFICATION, to enable the peers in the community to judge if the objection is to be supported or not.
HANSARD 31-1-1898 Constitution Convention Debates QUOTE Mr. WISE (New South Wales).-The only class of cases contemplated by this section are offences committed against the criminal law of the Federal Parliament, [start page 354] and the only cases to which Mr. Higgins' amendment would apply are those in which the criminal law of the state was in conflict with the criminal law of the Commonwealth; in any other cases there would be no necessity to change the venue, and select a jury of citizens of another state. Now, I do not know any power, whether in modern or in ancient times, which has given more just offence to the community than the power possessed by an Executive, always under Act of Parliament, to change the venue for the trial of criminal offences, and I do not at all view with the same apprehension that possesses the mind of the honorable member a state of affairs in which a jury of one state would refuse to convict a person indicted at the instance-of the Federal Executive. It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to exercise his practical power of nullification of that law by refusing to convict persons of offences against it. That is a means by which the public obtains a very striking opportunity of manifesting its condemnation of a law, and a method which has never been known to fail, if the law itself was originally unjust. I think it is a measure of protection to the states and to the citizens of the states which should be preserved, and that the Federal Government should not have the power to interfere and prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow citizens conferred upon it by this Constitution. END QUOTE
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Regretfully the courts are in my view so corrupt that this right of NULLIFICATION has been all but eroded. I do not apologise for the length of this correspondence because without some information I couldnt expect Your Majesty to have some bearings as to the issues concerned.
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Because the issue regarding Mr Peter Cosgrove to be the next Governor-General I view this requires a more speedy attention. My correspondence, since Mr Tony Abbott become Prime minister included an option for him to recommend to the Home Office for me to be Governor-General (for so far this would be constitutionally appropriate) as then I could have ensured that matters would be appropriately addressed. Would Mr Peter Cosgrove become the next Governor-General then for what I have also set out below it I view it would even more create problems to citizens.
HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. HOLDER: I pass from these two general principles to a discussion of the only other preliminary I shall have to touch, and that is the question of the appointment of the representative of the British Crown in the person of the Governor-General. I do not take it that the words of the Enabling Act requiring us to frame a Constitution for a Federation "under the Crown" bind us in the matter of whether or not we shall elect our own Governor-General, because I take it that the legal bonds which bind us to the mother-country, to the great British Empire, are chiefly, first the right of veto which the Imperial authorities have over any Acts our local Legislature may pass, and which the Federal Legislature may pass, and next the right of the Imperial Legislature at any time to pass legislation which may affect us, or which may revoke any legislation affecting us. These are the great legal bonds which bind us to the British Empire. But above all 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p4
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this, the greater and wider, and, to my mind, much more important [start page 145] bonds than the legal bonds are those of kinship, of language, and of sympathy that must always bind us to the motherland. END QUOTE
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HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. HOLDER: Therefore I think it is clear that to that extent it lessens the argument that the main link that binds us to the mother-country is the appointment of the Governor, and shows that it is an argument which has not half so much weight as some of the speakers would have us believe. But I take a very strong position against the election of the Governor-General by the Federation, not because I believe it would mean losing a link which binds us to England, but that we should have a man of such power and authority, derived directly from the people, that he would certainly clash with the other powers and authorities we propose to set up under this Constitution. END QUOTE
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HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. LYNE: First of all, he raised the question of the appointment of the Governor-General for the Federal Executive. Now, I think there is no desire on the part of any large section of this community to take what I may term the first step towards a severance from the mother-country, but the first step would be in the election of the Governor-General instead of allowing his appointment to be made by the Home Government. It is but a small connecting link between the Australasian colonies-between a Federated Australia and the mother-country-to allow the appointment to be made by the Home Government; and I should like to know what power that Government would have over any Governor-General elected in the manner desired. END QUOTE HANSARD 1-4-1891 Constitution Convention Debates QUOTE
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Sir SAMUEL GRIFFITH: I am under the impression that the first federal parliament will think 10,000 too small a salary for the governor-general, especially if Victoria continues to pay its governor 10,000. But I do not see that we should interfere in this matter, since it is strictly the business of the federal parliament. It is the business of the Queen, and of the whole of the colonies before they come into the federation to see that the Queen shall be paid a sufficient sum to enable her to be represented in the commonwealth; but I do not see that we should prevent the federal parliament from increasing the amount if they think proper. END QUOTE
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We also have had that the current Governor-General as well as predecessors were traveling beyond the limits of the POLITICAL UNION the Commonwealth of Australia and acting as Governor-General, this even so the Framers of the Constitution made clear that the Governor-General representing Her Majesty only was within the borders of the Commonwealth of Australia and not beyond.
HANSARD 1-4-1891 Constitution Convention Debates QUOTE Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a clause in the American Constitution; but the President there is practically never absent from the seat of government. This clause, however, would allow the governor-general to draw his full salary during a year's leave of absence; and I would point out that that leave of absence rests with the authorities in Downing-street. The clause, therefore, would allow the Colonial Office to arrange that the governor-general should draw his full salary during a year's absence, when an administrator would have to be appointed in his place, who would have to be paid a large salary for doing the work. Who would pay him? An HON. MEMBER: The governor-general!
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END QUOTE
What this also proves is that only one person can be paid for the job as Governor-General regardless if called Administrator and that it is the Governor-General who shall pay the person acting on his behalf while he/she is outside the Commonwealth of Australia or on
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leave. Hence, no one could expect Your Majesty to pay the former Governor-General after he/she left office and no constitutional provision exist within the constitution to pay such former Governor-General (the same with former (Prime) Ministers from Consolidate Revenue Funds as all and any payment can only be made to Your Majesty while the person is actually the office holder and not beyond. We nevertheless had that as I understand it the current Governor-General Quentin Bryce running up huge cost charged against Consolidated Revenue Funds unconstitutionally while travelling abroad (beyond the borders of the Commonwealth of Australia). As the Governor-General represents Your Majesty within the Commonwealth of Australia then no constitutional provision exist for the Governor-General to travel abroad, even to Great Britain to function as a representatives of Your Majesty while an administrator were to function as a Governor-General or fulfil his/her duties. I grew up in Rotterdam in The Netherlands during the reign of Her Majesty Queen Juliana and migrated to the Commonwealth of Australia in 1971. Not then being able to speak or read the English language means that I had to educate myself. As result I tend at times to read usage of the English different than those who grew up with the English language. As I wrote in my 22-7-2002 to the then Lt Gen Cosgrove:
QUOTE When I sit in as a translator between lawyer and client, i t is often that I discover that both client and lawyer come to an agreement, but the lawyer is referring to one thing and the client to another! So, there really is not agreement at all, that I then point out to them. You see, this is a very common problem that clients complaint about their lawyers, where in fact the lawyer might genuine think the client is wrong. Simply, lawyers tend to use a legal language that clients misconceive as to what it means. Then again, even the wording 6 millimetres between the lines in the Family Law Act 1975 caused a lawyer to seek the Court to strike out my material arguing that my material failed to comply to the standards required. Now, just consider that I never had any formal education in the English language, neither is it my native language, and here I am trying to educate the Court and lawyers what is legally proper as to the meaning of words. Obviously, I won the argument, as 6 millimetres between the lines is between base line and base line and not at all between the letters typed, as first the Court and the lawyers argued. Well, consider this, how much the Defence forces could save them on legal fees, if lawyers were to type their legal documents, they file in litigation involving the Defence Force, closer together? I think it must be in the millions of dollars that would be saved. Not just the charge of reading documents, but the copy of document be reduced etc. END QUOTE
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As a self-educated CONSTITUTIONALIST I have different understandings of the true meaning and application of the constitution then many if not most lawyers/judges have. For example the following to me governs the true meaning and application of the constitution:
Hansard 2-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I allude might otherwise lead to a certain amount of misconception. END QUOTE Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999)
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Constitutional interpretation 1. The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in p6
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the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]: "We must begin, in my view, by asking what - on the best evidence available - the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion." END QUOTE Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union . The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. END QUOTE
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As to who declares war onto any country:

HANSARD 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON (New South Wales).Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. END QUOTE HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE
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Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere with the imperial prerogative in matters of war and peace! END QUOTE HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. END QUOTE
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For the above it therefore ought to be clear that while the Cabinet of the Australian government may desire to go to war against any country, not the Prime Minister but the Minister of Defence is to advise the Governor-General and then the governor-General considering the interest of the general community has to decide if in the circumstances he ought to publish in the Gazette a DECLARATION OF WAR against a particular named country.. It is only when this DECLARATION OF WAR is published that the Minister of defence can lawfully authorise the Australian Armed Forces are invade a foreign sovereign country.
QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove

WATSON v_ LEE (1979) 144 CLR 374;
Such as: To bind the citizen by a law, the terms of which he has no means of knowing, would be a mark of tyranny. Such as:
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In my opinion, this provision means that copies of the regulation must be available at the place nominated in the Gazette on the date of the publication of the notice in the Gazette. Such as: In a case of emergency the regulation can be notified in the Gazette itself even if a special issue of the Gazette has to be published. I regard the availability of the terms of the law to the citizen of paramount importance. Some years ago, I happen to purchase for $5.00 (Then, it was a lot of money too me) at a second hand shop in Victoria Street, Brunswick, Victoria (Just notice I still know where I purchased it) the old large floppy disk. They happen to include Court Martial matters, and other Defence Forces material. I never really bothered to check it out.
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I just did some of it; (Some of the legal study material contains the following) A file (with some of the text)
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PMC School of Signals Officer mess Reference: Mess bill as at 1 Apr 90 Capt D.W.Dean 1413 I wish to render my objection for being charged the amount of $5.00 for the Family Happy Hour on 2 March 1990 April 90 Another file: (some of the text) Sir, The second proof if that the of that act was likely to prejudice the Defence Force, being all NCOs must set the example to all. Another document: DLM 101 Introduction Jurisdiction Generally of Service Tribunals Investigation of Services Offences Offences and Charges Criminal Responsibility The Law of Evidence 07 Summary Proceedings Courts Martial Before Trail Court martial At the Trail Defence Force Magistrates Punishments and orders Reviews and Appeals
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DLM 210 DLM 306
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DLM 416 DLM 509 DLM 668
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DLM 7 DLM 826
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DLM 951 DLM 1005 DLM 1127
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DLM 1225 p8
Some of the Students listed; (I WILL NOT LIST ALL OF THEM)
ABERLE 7100961 OCKENDEN 7101903 ASHBURY 6207393 ONN 7100948 BAUM 6302580 PATTERSON 7008459 END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove DLM 509 Criminal Responsibility END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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Therefore, it ought to be clear that Lt Gen Peter Cosgrove, as he then was, ought to have been aware that as an officer he had legal responsibilities. And failing to act lawfully could result in criminal responsibilities
QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove And, yet, I view that it is UNCONSTITUTIONAL for the Government to sell of any postal, telegraph, telephonic or such other services, as the framers of the Commonwealth Constitution Bill 1898 specifically designed the Constitution, to ensure, that those services would be managed by the Federal Government, even the vehicles they referred to! So, no sale is as such justified. Oops, the shares of Telstra might now go up, with the Government having to take all shares back! A sale that is unconstitutional was no sale at all! Great thing, those transcripts of the debates. I view, it ought to be compulsory reading for all members of the Defence Force, all members of the legal profession, certainly for judges, and all Parliamentarians. We might even then get a true DEMOCRATIC SYSTEM!
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Didnt we have this fellow running around in the USA, declaring that Australia would joint them in the war against terrorism? Again, we ought to get him to read the transcripts of what the framers really intended! Gosh, the Defence Force might even become aware, that not the Prime Minister, but the Governor-General (for the Monarch) can only declare war! And, that we dont make declarations from the steps of Parliament House, as was done on 11 November 1975, or while visiting the USA, but it is required to be done by the actual publication of the Proclamation of Declaration of War! So, now we have the Defence Force, invading some sovereign country, upon the political motivated demands of a Government of the Day, and I wonder upon legal basis? No matter what one might think about Afghanistan, it was a foreign power, a sovereign nation, in which I view, the Defence Force had no business to go there, and be involved perhaps with the deaths of many innocent civilians, without there being a formal Declaration of War being Gazetted! If Australia can do so to another sovereign nation, then why shouldnt another nation do the same to Australia? Have we become some war mongering nation, that the Defence Force is willing to go anywhere, regardless of what is constitutional/legally just and proper? So, now we are having the Defence Force involved in a War against Terrorism? Well, who is the terrorist invading another sovereign country without a formal Declaration of War actually published in the Gazette? I think, we ought to have our own War Tribunal, and deal with those, who have been part of an invasion force, without any proper and actual published Declaration of War! The Defence Force isnt there to nilly willy do whatever a Government of the Day demands! The Defence Force, in my view, must always be guarded that it acts in accordance to international and Australian laws, and if there is a conflict, then it simply REFUSES to act contrary to legal provisions! No Government of the Day has the power to force a Defence Force to act unlawful! If the Government of the Day pursues the Defence Force to act in a manner which is unlawful, then, where it is within the competence of the parliament, it must have laws first amended by the Parliament, so that the Defence Force can proceed but remains to act according to law! END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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I will now repeat some of the same quotation but highlighted with red colour and bolding and underlined:
QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove No matter what one might think about Afghanistan, it was a foreign power, a sovereign nation, in which I view, the Defence Force had no business to go there, and be involved perhaps with the deaths of many innocent civilians, without there being a formal Declaration of War being Gazetted! If Australia can do so to another sovereign nation, then why shouldnt another nation do the same to Australia? Have we become some war mongering nation, that the Defence Force is willing to go anywhere, regardless of what is constitutional/legally just and proper? So, now we are having the Defence Force involved in a War against Terrorism? Well, who is the terrorist invading another sovereign country without a formal Declaration of War actually published in the Gazette? I think, we ought to have our own War Tribunal, and deal with those, who have been part of an invasion force, without any proper and actual published Declaration of War! END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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In the same correspondence I did also refer to: 20

QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove WITHOUT PREJUDICE Lt Gen Peter Cosgrove 16-7-2002 R1-5-B CDF Suit Department of Defence Canberra ACT 2600 Phone; 02 626 52976 Fax; 02 626 51228 Re; FULL INVESTIGATION COURT MARTIAL? Sir, I write this letter to you, with a request for a full and proper investigation, in regard of the involvement of the Defence Forces in connection to, intercepting or otherwise of boats/ships, etc, which were considered to have asylum seekers/refugees/rescuees on board. As well as other related matters. From ABC 4Corners 15-4-2002 report; DEBBIE WHITMONT: As the Iraqi boat waited, the Prime Minister was preparing for his campaign launch in Sydney. Crew on the warship 'Arunta', at Ashmore Island, were acutely aware of his election timetable. Their operation -- to remove the Iraqi boat from Australia -- was delayed by a day.
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A source on the 'Arunta' has told Four Corners that the crew were told over the ship's loudspeaker, maybe tongue-in-cheek, that the delay was to make sure that the operation wouldn't interfere with the Liberal Party launch. In particularly, in relation to Commander Banks, and others, if they may have conducted themselves to be deemed to have committed murder/manslaughter or other grievous harm by their conduct and/or breached any laws at the time END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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In my view the then Lt Gen Peter Cosgrove head of the Armed forces seemed to be more concerned as to political issues then the compliance to the rule of law.
QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove I go back to the Commonwealth Constitution Debates of 1891, 1897, and 1898, and also as to the sinking of the Titanic. Now by now you might think I am a wacko, but is that really the case? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p10
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You see, the board of inquiry of the USA and the British Government having investigated the sinking of the Titanic, and so the rescue, and the non-rescue, of those left at the perils of the sea, made certain recommendations. For example;
22. That the attention of Masters of vessels should be drawn by the Board of Trade to the effect that under the Maritime Conventions Act, 1911, it is a misdemeanour not to go to the relief of a vessel in distress when possible to do so. 23. That the same protection as to the safety of life in the event of casualties which is afforded to emigrant ships by means of supervision and inspection should be extended to all foreign-going passenger ships. 24. That (unless already done) steps should be taken to call an International Conference to consider and as far as possible to agree upon a common line of conduct in respect of (a) the subdivision of ships; (b) the provision and working of life-saving appliances; (c) the installation of wireless telegraphy and the method of working the same; (d) the reduction of speed or the alteration of course in the vicinity of ice; and (e) the use of searchlights. So, now I begin to realise, that likely when the Tampa was kept at bay, using the Defence Forces, seeking to force it to leave Australian Waters, the ship really was unseaworthy Queensland Consolidated Acts
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CRIMINAL CODE ACT 1899 - SECT 330 330 Sending or taking unseaworthy ships to sea (1) Any person who--
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(a) sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered; or (b) being a master of a British ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered ; is guilty of a crime, and is liable to imprisonment for 14 years.
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Regardless being it a Department of Immigration, or the Defence Forces, or otherwise, this legal principle must be applied the same.
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So, what appeared to be a scam, to prevent a hearing about a Court case to proceed, now appears to me to be a more scandalous matter. Hardly would the Care Taking Government want any delay in holding an election, and take the risk it might be exposed, that it might have used the Defence Forces, and perhaps basically have killed people by sending them to their graves! It seems to me, that during the election period Commander Banks, and others, rather then having been the HERO saving peoples lives, when boats were sinking with asylum seekers/refugees, it now appears to me, that they might rather have directly and/or indirectly and/or otherwise caused/contributed to people drowning. It appears to me, that reports published in the media, suggest that Commander Banks had control over a particular boat (with asylum seekers/refugees, when the roof of a boat collapsed, and then milk crates w ere used to keep the roof up. Not only might it have been unlawful to use milk crates for this, in that they (the milk crates) must be returned to the rightful owners, but if anything underlines that the boat was unseaworthy! What we have then is, what appears to me, boats being towed, and/or forced back by the Defence Forces to Indonesian waters, without being equipped with lifeboats, life jackets and other life saving equipments. Clearly breaching Australian law and other international treaties. I wonder, if there are records showing how many people on board of the boats, the Defence Forces tried or actually did force to go back? And, if they also had a record, how 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p11
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many life jackets the Defence Forces provided to those people aboard those boats, where there were insufficient life jackets? The same about lifeboats, and other life saving equipment.
As such, where people are reported to have used a white sheet, as to attract the navy vessel, that was leaving, and, the boat shortly thereafter sank, then I view, the question that ought to be investigated, is if the people who then drowned, had life jackets provided to them by the Defence Forces, before forcing them to go back and leaving them on their own in an unseaworthy boat? After all, once Commander Banks, or others, takes charge of a boat, he must take responsibility for the boat. As such, not permitted to cast of a boat, that is or likely appears to be unseaworthy. As I have stated in very detail in my 2-7-2002 submission to the JSCEM (Joint Standing Committee on Electoral Matters), it appears to me, to have been plain MURDER/MANSLAUGHTER for the Defence Forces having forced people back in unseaworthy boats, and to fail to assist those who drowned in the SIEV X. I GATHER THE VIEW THAT THERE MIGHT HAVE BEEN A MARINE INQUIRY AS TO THE SINKING OF ONE OR MORE BOATS. BUT DID IT REALLY ADDRESS THE ISSUE OF CERTIFICATES HAVING BEEN ISSUED ABOUT SEAWORTHINESS OF THE BOATS?
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I doubt that the inquiry would have argued the issue at all. Considering the various reports, that appear to indicate that the Defence Forces were instructed upon command of the then Care Taking Prime Minister John Howard. Then I ask, was there a neglect of legal, moral and ethical standards by the personnel of the defence Forces, to force boats back in breach of law? Is it, that the Defence Forces personnel were more concerned about their job security, then their legal and other obligations to a fellow human, and the legal requirements to follow?
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In my view, it would be plain murder/manslaughter, if Commander Banks, or others, indeed had forced boats back without having ensured that any boat forced back, was first ensured to be seaworthy, and appropriate safetyemergency equipment was provided. After all, we have laws to comply with, and it isnt relevant if a boat carries, so called illegals, the issue is, that this got nothing to do with compliance or non compliance with Australian law and other relevant laws! In my view, Commander Banks, and others, involved in it all, ought to face a COURT MARTIAL, as to show, that they acted in accordance with Australian Law, other relevant laws, and International treaties, when sending boats back!
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I view, it is unlikely, but I might be wrong, that Commander Banks, and others, provided lifeboats and safety jackets, or other safety equipment, such as flares etc, to the boats they forced back! One boat had arrived at Ashmore Island, and was kept there allegedly for some 6 days. I understand, Commander Banks took charge of the boat. But, did he report the dead of the child! Was there a proper inquiry as to the dead of that child? I am well aware, that the child allegedly died well before Commander Banks, or others, took charge of the boat, but that isnt the issue. The issue is, that any dead aboard a ship/boat must be reported. Also, had Commander Banks, or others, at any state have any boat inspected, by duly and proper authorised person, if such a boat in each case was actually sea worthy? After all, once the Defence Forces take charge of a boat, being it towing or otherwise, then it must be deemed to be accountable to do so, in accordance with Australian law, and other relevant laws, and International standards/treaties. Is it perhaps, I ask, that the Defence Forces ignored to follow the rule of law, and merely acted upon political motivated instructions coming from the Care Taking Government, for the purpose of winning an election? While the SAS allegedly took charge of the Tampa, was there at any stage a Certificate issued, for the Tampa to leave Australian Waters, with more then 438 passengers aboard? After all, once the Tampa took on the rescuees, it became technically unseaworthy, as it had no proper accommodation for the rescuees, not sufficient life jackets or lifeboats as required by law! Was it, that while the Federal Court of Australia argued the case about the Tampa, in the process, they ignored this all together, when arguing that the Tampa could leave, where in fact in law, the Tampa couldnt leave without first being Certified to be equipped with appropriate equipment with safety equipment, for the number of people aboard! p12 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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For insurance purposes also, I cant see how the Tampa could have left Christmas Island, with about 338 rescuees aboard, without appropriate safety equipment as required by Australian law, International treaties, and other relevant requirements! After all, it would have been like the Titanic, had for some reason the Tampa sank, if it had left with all aboard without sufficient safety equipment! It seems to me, that the Defence Forces rather nilly willy were using powers, regardless of the safety of those concerned, and so resulting to, directly and/or indirectly to the death of many.
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Indeed, I question now, if the dead of those 353 people who drowned, on 19 October 2001, in International waters, was something that could and should have prevented by the Defence Force, where the Defence Force already had on 18 October the information; and could need rescue at sea due to its poor condition and overcrowding.
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I wonder, if perhaps the Defence Force deliberately withheld surveillance, and assistance, to avoid having more people on their hands, in some Tampa scenario? After all, rescuees have a different legal position then those who arent rescuees. I wonder, if perhaps the same has occurred on other occasions, when boats went down?
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The more I research Australian Law, and International Law, etc, the more I view, that the Defence Forces failed to act appropriate in all the circumstances.
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I wonder, even if the Commander at the time wasnt allowed to take people on board, why then not engage some sea plane, or other alternative means of transport, rather then to force people under military might back in unseaworthy boats, with the risk of the perils of the sea. My view is, that those of the Defence Forces, faced with a political motivated orders, simply had to face, that either they refuse to follow the orders, making clear that they cant act contrary to their duly to comply with laws, or, the y had to find some alternative way to resolve the dilemma, but at no time ought to have, as I view it, send directly or indirectly people to their graves! So, now we have people in Detention Centres, allegedly handcuffed and sprayed with capsicum spray, irrespective having done no wrong. So, having been faced with armed Defence Personnel first, they now suffer this. Well, I view, if you are proud on your Order of Australia, then perhaps you ought to have a look at what it really stands for.
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I do not know, what, if any, roll you personally played in the whole sage about the people referred to generally as rescuees/asylum seekers/refugees/illegal immigrants, and as such do not make a personal attack upon your credibility. But now, being in command of the Defence Forces, I view, that there is only one thing you can do, that is to have a full inquiry into matters raised by me, as supplied to the JSCEM and in this letter, and other related matters, and perhaps ensure that a ROYAL COMMISSION investigates the matters also. I am aware, it is not within your powers to order a ROYAL COMMISSION, but any appropriate investigation, that were to be done, now could recommend such to the Parliament. I view, that as the Care Taking Government were using its Defence Forces against the rescuees/asylum seekers/refugees/illegal immigrants, then any unlawful conduct against them must be deemed war crimes.
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Many of those people now granted residence in Australia, suffered because of how the Defence Forces acted at the time. It is now to establish appropriately, if indeed the conduct of the Defence Forces at all times was appropriate! Nothing, in my view, would justify breaches of law, perhaps merely so a to comply with political motivated commands. Indeed, the Defence Forces must have as its motto that they will never place at risk directly or indirectly the lives of civilians!
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The children overboard sage is a clear example, to me, how the Defence Forces failed to correct matters. I view, the Defence Forces had an obligation to set the record straight immediately, when it became aware that the Care Taking Government were using or rather misusing photos of a rescue incorrectly. As after all, to allow the miss usage of the photos it, albeit indirectly, accepted that the public was fed lies, and so influenced the views of the public. I view, the Defence Force foremost has a duty to the public, and not to a political motivated Government! 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p13
Just ask yourself, if the Government had ordered the Defence Forces to shoot people, would it then have done so? Or, would the Defence Force have refused to do so, holding that they couldnt kill unarmed civilians? Well, then ask yourself, what is the difference in sending people back in unseaworthy boats?
I view, that the Defence Force must rebut any scam by any Care Taking Government, where it directly involves the conduct of the Defence Forces. Not to do so, in my view, places in question the integrity of the Defence Forces! While much seemed to be alleged about if perhaps people deliberately put their boat on fire, the truth is, that the boat was forced to leave, as I understand it, without sufficient life jackets aboard, and it seemed to me being unseaworthy! So, why did the Defence Forces do this? We must also look upon the various causes of breakdowns. As in the case of; ANDRE TOULEMONDE WOOL CO PTY LTD & ORS v KNUTSEN OFFSHORE (PANAMA) SA & ANOR [1998] WASC 204 (26 June 1998) The defendant's "latent defect" defence The defendant says the most likely cause of the damage was latent defect in the cylinder liner which caused it to fracture circumferentially beneath the collar or flange at the top end. The defendant says the latent defect was not discoverable by the exercise of due diligence. And: Conclusion The Hanne Bakke was unseaworthy when she left Fremantle on 18 February 1987 by reason of the fact that the nuts on the stud bolts of B-1 connecting rod had not been correctly tensioned and were liable to work loose (as they did), causing serious damage to the B-1 cylinder unit and consequential damage to its opposing A-1 unit. Apply the same reasoning then to the boats, the Defence Forces send back! I find that the unseaworthiness was caused by a want of due diligence on the part of the engine room crew in refitting the B-1 connecting rod to the crankpin bearing hingepin. The Defence Forces spend millions on rescuing Toni Ballimore, and the likes, who seemingly neither had a visa, yet, when it comes to others, such as the rescuees on the Tampa, then, pending on the Government of the Day, the Defence Forces act totally different, it seems to me. Why? END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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The above quotation indicates that while Lt Gen Peter Cosgrove as in charge of the Australian Armed Forces there was a blatant disregard to the Rule of Law. A blatant disregard to the authority of the Governor-General acting on behalf of the British Crown that prohibits any armed invasion into a sovereign country without a DECLARATION OF WAR published in the Gazette. We therefore have to consider:
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Hansard 1-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. END QUOTE
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In my view there is no excuse of following orders in violation to legal principles embedded in the constitution and/or to needlessly jeopardize human lives. I had, as quoted above and repeat some below,, indicated the findings of the USA and British Government (Board of Inquiry) as well as Queensland law:
QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove You see, the board of inquiry of the USA and the British Government having investigated the sinking of the Titanic, and so the rescue, and the non-rescue, of those left at the perils of the sea, made certain recommendations. For example; 22. That the attention of Masters of vessels should be drawn by the Board of Trade to the effect that under the Maritime Conventions Act, 1911, it is a misdemeanour not to go to the relief of a vessel in distress when possible to do so. 23. That the same protection as to the safety of life in the event of casualties which is afforded to emigrant ships by means of supervision and inspection should be extended to all foreign-going passenger ships.
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24. That (unless already done) steps should be taken to call an International Conference to consider and as far as possible to agree upon a common line of conduct in respect of (a) the subdivision of ships; (b) the provision and working of life-saving appliances; (c) the installation of wireless telegraphy and the method of working the same; (d) the reduction of speed or the alteration of course in the vicinity of ice; and (e) the use of searchlights. So, now I begin to realise, that likely when the Tampa was kept at bay, using the Defence Forces, seeking to force it to leave Australian Waters, the ship really was unseaworthy
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CRIMINAL CODE ACT 1899 - SECT 330 330 Sending or taking unseaworthy ships to sea
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(1) Any person who-(a) sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered; or (b) being a master of a British ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be thereby endangered ;
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is guilty of a crime, and is liable to imprisonment for 14 years. END QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove
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Therefore, I view that Mr Peter Cosgrove is not a fit and proper person to be GovernorGeneral. While Mr Peter Cosgrove may have made so to say a slip of the tong to refer to His Royal Highness Prince George to come to the Commonwealth of Australia, the matters I referred to in the 16 July 2002 correspondence to him were of a very serious nature. Nevertheless the then Lt Gen Peter Cosgrove was in charge of the Australian Armed forced and permitted the Australian Armed Forces as I view it unconstitutionally and without legal authority to invade the sovereign nation Iraq without the Governor-General having published in the Gazette A declaration of war against the sovereign country Iraq. In my view not only did Lt Gen Peter Cosgrove at the time show a blatant disregard to the rule of law but by it also participated in so to say bomb Iraq back into the Stone Age, and in the process committed mass murder, crimes against humanity, war crimes, etc. It was not my task to notify the then Lt Gen Peter Cosgrove as to what he may or may not be permitted to do, nevertheless I did so to assist to seek to avoid him acting in breach of law, etc, but it ought to be clear that where I had so to say for warned him on 16 July 2002 and he
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nevertheless commenced the armed invasion into Iraq on 19 March 2003 there was ample of time for him to consult appropriate sources in regard of his authority to invade another country in defiance of the legal principles embedded in the constitution.
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HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. LYNE: First of all, he raised the question of the appointment of the Governor-General for the Federal Executive. Now, I think there is no desire on the part of any large section of this community to take what I may term the first step towards a severance from the mother-country, but the first step would be in the election of the Governor-General instead of allowing his appointment to be made by the Home Government. It is but a small connecting link between the Australasian colonies-between a Federated Australia and the mother-country-to allow the appointment to be made by the Home Government; and I should like to know what power that Government would have over any Governor-General elected in the manner desired. END QUOTE
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It is my view that unless the Commonwealth of Australia Constitution Act 1900 (UK) is ended by an Amendment Constitution Act, all legal principles embedded regarding the British Crown and the appointment of a Governor-General in the constitution remains as is. It is essential that we do not have a so to say political lapdog as a Governor-General willing to plunge the Commonwealth of Australia into some war that could unduly jeopardize the safety And wellbeing of the general community. In my view Mr Peter Cosgove has proved during his time as General being the head of the Armed Forces to ignore the rule of law for so to say serving his political matters. As Governor-General he would have to consider if any advice of the minister of defence to declare war upon a sovereign nation would be in the best interest of the general community and not that the Minister merely seeks to engage in warmongering for the sake of a forthcoming election. In view that I view Mr Peter Cosgrove proved to ignore the Rule of law and the interest and wellbeing of the general community then I cannot trust him to be of the calibre of Governor-General that ordinary could be expected from a Governor-General. Many people died in the process and so also many Australian soldiers. Who is going to tell the widows, the fatherless children that their fathers died in Iraq needlessly because Lt Gen Peter Cosgrove, as I view it, couldnt bother about conducting matters lawfully but rather so to say held it more important to serve his political masters above the Rule of Law. Many former Iraqi citizens (now residing in the commonwealth of Australia) then subjected to the bombardment, etc, and having lost in the process their health and wellbeing and ample of relatives in the process could now face that the very person then in command of the armed forces now is would be the Governor-General. What kind of open minded Governor-General could they expect if they complain about unlawful killings of family members at that time? Surely, no one can expect this implied bias to be overlooked. In my view Mr Peter Cosgrove ought to face a trial and any legal consequences for having acted as I view it in blatant disregard of the true meaning and application of the constitution and nothing less. Any commission for Mr Peter Cosgrove to be or being the next GovernorGeneral would undermine this. The Nurenburg trails made it clear that following orders is no excuse.
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I understand that at the time the then Prime Minister Robert Menzies announced that because Great Britain had declared war against Germany then the Commonwealth of Australia was also at war. The truth is that within the Commonwealth of Australia Constitution Act 1900 (UK) only the Governor-General acting on behalf of the British Crown can declare war by publishing in the gazette a DECLARATION OF WAR naming the relevant country. To my understanding this never eventuated at the time either.
Hansard 6-4-1897 Constitution convention Debates QUOTE Mr. DEAKIN: In the first instance, the power of the Crown itself is nowhere defined, and cannot be defined under this constitution. END QUOTE Hansard 6-4-1897 Constitution convention Debates QUOTE
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Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the powers exercised by ministers of the Crown in any other country. Dr. COCKBURN: They are much superior to the powers of ministers here! Sir SAMUEL GRIFFITH': Not in the east.
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Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited! END QUOTE
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It therefore is beyond the powers of even the High Court of Australia to determine the powers of the British Crown. Again:
HANSARD 6-3-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. END QUOTE
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Therefore, while Her Majesty may have authorised the armed invasion into Iraq by British troops it nevertheless doesnt apply to the Australian Armed Forces as such.
HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE
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HANSARD 9-2-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament. END QUOTE
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HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." END QUOTE
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HANSARD18-2-1898 Constitution Convention Debates QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution , END QUOTE HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS:
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Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution. When once that Constitution is framed we cannot get behind it. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE
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As I understand it there is a drive for the Commonwealth of Australia to become a republic or purport to be an independent country but as shown above by the quotation the constitution doesnt allow for this. No doubt politicians would like to increase their political powers, etc, and so do not desire the shackles of the legal principles embedded in the constitution and hence seek to expand their powers but I view as a CONSTITUTIONALIST that the constitution is the expression of the will of the People ,and no constitution would be safe if it were for the politicians to do as they like.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. END QUOTE
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We have a constitution and I view this is so to say the speaking word of the People. I expect that the Monarch will at all times honour this and I understand from Your Majesty coronation oath Your Majesty undertook to do so.
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The resilience of the Monarchy is not to get down in political fights between whomever, as that will never be resolved, however subjects can and should be able to expect that the Monarch will honour at all times her coronation oath, and in this case refer the matters to the Privy Council. In my view, Mr Peter Cosgrove for the above set out (and other details not included in this correspondence but referred to in the 16-7-2002 correspondence, etc, should face trail and the legal consequences of his conduct referred to above. In my view it wouldnt be appropriate for Mr Peter Cosgrove to represent the Monarch in view of the set out above. Indeed, why should anyone else respect Mr Peter Cosgrove as Governor-General where he himself as (Lt Gen Peter Cosgrove) in my view showed a blatant disregard to the authority of the then Governor-General? In my view Mr Peter Cosgrove could
seriously damage the standing of the British Crown if he were to be Governor-General as I view the general community may take it that those acting in blatant disregard to the rule of life, human rights, etc, for political or other reasons then are so to say awarded by their so to say political masters and it is dictated upon the British Crown to follow suit in this process. In regard of the above it is not relevant if Your Majesty held it appropriate to have British armed forces to invade Iraq, as it has no bearing upon the issue of Australian armed forces to invade Iraq, as our constitution specifically requires a separate DECLARATION OF WAR to be issued by the Governor-General in the Gazette.
Hansard 2-4-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: The practice in England has been that when the House of Commons is dissolved, the Gazette which contains the proclamation, or one issued concurrently, also contains a proclamation summoning a parliament to meet on a given day, and all the writs are appointed to be returned on that day. END QUOTE
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The same legal principle applies in the Commonwealth of Australia in regard of the Governor-General regarding the publishing of any DECLARATION OF WAR. The 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove was in fact also published in various books published in the INSPECTOR-RIKATI series on certain constitutional and other legal issues (therefore a copy of correspondence long on public record), such as (in 2007): INSPECTOR-RIKATI on IR WorkChoices legislation A book about the validity of the High Courts 14-11-2006 decision
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ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)
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As follows; INSPECTOR-RIKATI on IR WorkChoices legislation - CD\A book\2\117-Chapter 037A CORRESPONDENCE\F R M\23-Defence Forces\F R M\ 020716pc While we seem to have Royal Commissions for various issues somehow we had none about this unconstitutional armed invasion into Afghanistan and Iraq despite many Australian soldiers having lost their lives in the process. One could hardly expect that Mr Peter Cosgrove as Governor-General would have a Royal Commission to investigate his own as I view it criminal conduct or that of so to say his political masters.
Hansard 3-3-1898 Constitution Convention Debates QUOTE Sir JOHN FORREST.-What is a citizen? A British subject? Mr. WISE.-I presume so. Sir JOHN FORREST.-They could not take away the rights of British subjects. Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with the view of inserting the words "the Commonwealth." I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a definition of citizenship every state will have inherent power to decide who is a citizen. That was the decision of the Privy Council in Ah Toy's case. Sir JOHN FORREST.-He was an alien. Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to determine who should have the rights of citizenship within its borders. Mr. KINGSTON.-That it had the right of keeping him out. END QUOTE
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Therefore it is embedded in the constitution that the Commonwealth of Australia is entitled to protect its sovereign borders, but it must always be within the Rule of Law not despite of it! 5 Obviously, I recognize that Your Majesty may prefer to leave this issue to be decided by the Privy Council and exercise Your Majesty prerogative powers to refer the matter to the Privy Council, The Framers of the Constitution themselves recognized that Your Majesty had such a prerogative powers as to refer matters to the Privy Council While the powers of the Crown cannot be dictated/decided by the High Court of Australia as it contrary to its claim that it is the 3rd government Department it is actually a part of the constitution. The difference being that it is created by the constitution to act impartially whereas a Government Department is subject to the political will of the Government of the Day.
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Not only did I comprehensively defeat the Commonwealth of Australia in both appeals and so unchallenged, despite that I had filed and served a s78B NOTICE OF CONSTITUTIONAL MATTERS relating to many constitutional issues, but more over it was also based upon the submission that the Commonwealth of Australia was and remained a POLITICAL UNION and the High Court of Australia (Sue v Hill) had no legal authority within the constitution to interfere with this. It may be stated that I did challenge by way of s75(v) application the validity of the armed invasion into Iraq by way of 18 February application lodged with the High Court of Australia but the Deputy Registrar refused to accept this and on review on 19 February 2003 the High Court of Australia refused to allow filing. Never the less it was lodged. The Deputy Registrar then made noted on the documentation as to how I ought to amend the application, this I did and on 18 March 2003 I liodged the amended application (as directed by the Deputy-Registrar) but the application was refused for filing. I pursued an review and remarkable on 19 March 2003 the High Court of Australia cited the 18 February 2003 and not at all the 18 March 2003 application to refuse the document to be accepted for filing. As such the 18 March 2003 application within s75(v) is and remains on foot. As earlier I had filed proceedings in 2001 proceedings against the Governor-General as first Defendant and the Governors of the States also as first Defendants I clearly was embattled in a legal dispute with all those exercising prerogative powers for the Crown. As I understand it all 7 judges went to visit the first Defendant the Governor-General without my knowledge or consent and on about 6 May 2003 and subsequently dismissed my application to the High court of Australia. In my view this judgment was of no legal consequences, because any judgment issued after judges FRATERNISE with a Defendant without the knowledge and consent of the Applicant cannot have the force of law.
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Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention), QUOTE Mr. OCONNER (New South Wales).Because, as has been said before, it is [start page 357] necessary not only that the administration of justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion; END QUOTE
While not seeking to pursue matter on political issues, nevertheless I might appropriately refer to certain issues considering that I had 2 successful appeals on 19 July 2006 in the County Court of Victoria. The legal issues which were subject to the s75(V) issues were also part of the successful appeals before the County court of Victoria on 19 July 2006 and not
challenged by Any respondent nor any Attorney-Generals whom had been served with the s78B NOTICE OF CONSTITUTIONAL MATTERS, hence my challenge to the validity of the 2001 Federal election was and remained on foot and was again not challenged by during the 19 July 2006 proceedings. Copies of the extensive documentation was published on 7-6-2006 in INSPECTOR-RIKATI & What is the -Australian way of life- really? A book on CD on Australians political, religious & other rights ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 This book was published 12 days before the hearing, this as I was given the understanding that the Court would be sealing the file to prevent anyone to know what the case was about, as to protect politicians involved in the unconstitutional invasion into Iraq, mass murder of civilians, crimes against humanity and other war crimes. However, while the Court (even so I requested for a copy of the hearing/video the court refused this. I was given the understanding that the Court would seal details of the case, and hence I published my book 12 days before the hearing so that details would already be in the public arena and so in some libraries. And, the Court refused to hand down a Reason of Judgment or release the transcript of the hearing. However, the Court did issue a statement (only after I requested clarifications);
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I refer to the case of ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) was wrongly decided! In my view, Murphy J (dissenting judge) was correct. Wilson J stated at 42; QUOTE While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, END QUOTE
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Numerous High Court of Australia decisions are based on precedents even so since the Tasmania Dam case the High Court of Australia finally accepted that the Hansard records of the Constitution Convention Debates (as referred to above) were to be considered. Hence, we have numerous lawyers calling themselves constitutional lawyers an oxymoron because a lawyer seeks to twist and infringe upon the legislative provisions and regulations made within it to try to get his client off whereas a constitutionalist will have no part in such conduct. As the Framers of the Constitution made clear:
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Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through their Parliament the power of the purse-laying at their mercy from day to day the existence of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act which is unfavorable to the people having this security, it must in its very essence be a free Constitution. Whatever any one may say to the contrary that is secured in the very way in which the freedom of the British Constitution is secured. It is secured by vesting in the people, through their representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of securing absolute freedom to a people than that, unless you make a different kind of Executive than that which we contemplate, and then overload your Constitution with legislative provisions to protect the citizen from interference. Under this Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only in the, daily government of the country, but in the daily determination of the question of whom is the Government to consist. There is the guarantee of freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every one has sought to strengthen. How we or our work can be accused of not providing for the popular liberty is something which I hope the critics will now venture to explain, and I think I have made their work difficult for them. Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will determine questions arising under this Constitution, and with all other questions which should be dealt with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free: next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall any of its provisions, be twisted or perverted , inasmuch as a court appointed by their own Executive, but acting independently, is to decide what is a perversion of its provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well. END QUOTE
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Hansard 12-3-1898 Constitution Convention Debates QUOTE Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council, as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament? Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to be done, I should expose the Drafting Committee to a flood of interrogations . I can only say that what we intend to do is to carry out the decisions of the committee. Of course there are one or two cases in which the [start page 2439] decisions which have been arrived at require a certain amount of interpretation in 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p23
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the light of the debates, and in those cases we shall take what was said, as well as what was put in the Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal my honorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they appear are only in the nature of instructions to the committee , and they will have to be interpreted in the light of statements made by my honorable friend in answer to inquiries by me. That is the course that will be pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will be interpreted in that way. END QUOTE
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Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me. But the question for us to consider is whether a court like the Federal High Court or the Privy Council would ever come to such a conclusion. One would think it highly improbable. The real question that may arise under this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power. END QUOTE Hansard 11-3-1898 Constitution convention Debates QUOTE Sir JOSEPH ABBOTT.-
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Can it be suggested, however high the Federal High Court may be in regard to attainments, that under any circumstances the Judges of that court would have the experience, the training, and the knowledge of the men composing the Court of the Privy Council? Would it be possible to separate the members of the Federal High Court from local influences? Unintentionally, men are influenced by their surrounding conditions. It does not follow because a man is to-day in public life as Attorney-General, and tomorrow is sitting on the bench wearing the ermine, that he can dissociate himself or separate himself from local surroundings and be unbiased or uninfluenced by those considerations. Take a case of importance arising here. I admit that our Judges have great learning and extensive knowledge, and I admit the great power and the great strength of our Supreme Courts throughout the various colonies, but I say that they can have no experience equal to the men who occupy positions on the bench of the Privy Council. We are told, however, that the members of the Privy Council do not understand our law, that they do not know our conditions, and that they are unacquainted with local influences. Well, I have always considered that a very trifling matter in fact, I have thought it was a very desirable thing that they did not understand our local conditions, because our laws are not to be interpreted in regard to local conditions, but according to the intent contained within every word in them, apart from local conditions. I have heard men express their astonishment that the Judges of our own Supreme Court have not taken into consideration the Hansard debates when they were giving judgment. I feel quite sure that when an appeal goes to the Privy Council all these considerations are completely wiped out. The members [start page 2290] of the Board of the Privy Council do not consider our local conditions, but interpret our Acts in the words in which they are printed. I have already referred to the two chief objections to appeals to the Privy Council; first, the expense, and, secondly, the delay. I have endeavoured to show that the expense is not so enormous as it is represented to be. If honorable members will look at the return in relation to appeals to the Privy Council from decisions of the Supreme Court in Queensland every layman, at all events, will be struck by the fact that the expenses of one appeal were only 29 in Queensland, and 219 in the Privy Council-that means the taxed costs of the appeal. It has nothing to do with the local costs; it means the preparation of the transcript and the final cost in London. The difference between the cost of appeals to the proposed High Court and the cost of appeals to the Privy Council is well but rather under stated, by Sir Lambert Dobson, in a document which is quoted at page 969 of the report of the debates of this Convention at Adelaide; and I think that we are very much indebted to Sir Edward Braddon for quoting that information in the speech which he delivered on that occasion. In many cases counsel's fees at the present time are higher here than I have ever known them before, and I say this with a knowledge extending over 30 years of practical experience. Mr. BARTON.-Counsel's fees are a great deal lower with us than they were a few years ago.
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END QUOTE Therefore, as the Framers of the Constitution recognised already during the Debates, the judges within Australian courts may be bias because they are influenced by local conditions whereas the Privy Council will adjudicate by what the legislation actually stands for.
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The irony is that the Commonwealth of Australia pursued to get rid of the Privy Council to overrule the High Court of Australia as being the superior court, and yet the Commonwealth of Australia entered into all kinds of treaties where, albeit unconstitutionally, now a foreign company not satisfied with the ruling of the High Court of Australia can then challenge the decision elsewhere to overrule the High Court of Australia but a Australian based company cannot do the same. As such no longer do we have that we are all equal before the law.
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As I also pointed out in my successful appeals that Mr John Howard nor others were elected in the 2001 federal election because the writs were issued on 8 October 2001 whereas within FOI (Freedom of Information Act) obtained documentation I established that the proclamation that the Governor-General had instructed to be published on 8 October 2001 prior to the dissolution of the House at 11.59am and proroguing the Parliament at 12.00 noon on 8 October 2001 had not even been provided to the printers by 12.00 noon. This as the Special Gazette officer was off in the morning and so while already the time of 12.00 noon had passed the Special Gazette Officer still had not started to provide the draft of the Special Gazette containing the proclamation to the printers. While each Governor is also required to issue writs and did so on 8 October 2001 none of the states had any copy of the Special Gazette. The following details were shown on the FREEDOM OF INFORMATION released computer records of the Commonwealth of Australia as to copies of the Gazette having been transferred, after printing. 11/03/02 GO BOI 53/2 11/10/01 GO SGAZ421 . 9/10/01 GO CAS0153391 9/10/01 GO ICN0910ADL 9/10/01 GO ICN1076CAN 9/10/01 GO ICN0907MEL 9/10/01 GO ICN0886PER 9/10/01 GO ICN0881TOV 8/10/01 GO FGS0153363 8/10/01 GO FGS0153363 GAZETTES Subs Issue Trf to CA ICN to AD ICN to CA ICN to ME ICN to PE ICN to TH CANPRINT CANPRINT Wr-Off Adj Dist Transfr Transfr Transfr Transfr Transfr Transfr PO-Fins Receipt 20 -6 -2 -1 -3 -1 -1 -1 35 35 0.20 -0.06 -0.02 -0.01 -0.03 -0.01 -0.01 -0.01 0.35 0.35 MGIRVAN HEMSAN BMO5IAI DCRANE DCRANE DCRANE DCRANE DCRANE GHANNA GHANNA
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CA AD CA ME PE TN
ZZ ZZ ZZ ZZ ZZ ZZ
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While 35 copies of the Special Gazette S421 was requested to be printed and the computer records show they were on 8 October 2001, it also shows that not until 9 October 2001 first 2 copies and later a further 3 copies had been transferred to Canberra (CA) As such the Proclamation was not published until at the earliest 9 October 2001, and therefore in regard of all writs governing the House of Representatives and the Senate sets for the territories there were no vacancies when the writs were issued on 8 October 2001. As shown in the table only 1 copy of this special Gazette was forwarded for the millions of people residing in the State of Victoria, none to the millions of citizens in NSW! Adelaide (SA) had a mere 1 copy to divide between all citizens. Tasmania had none either. Townsville had one copy and the people in WA (Perth) also had a mere 1 copy. As such, between the 6 States and various Territories (other than ACT) a mere 4 copies were provided via courier. Not uncommon despite the right to know what is in the Gazette I found often having to wait for weeks before I could finally obtain a copy of the Gazette I had paid for on the day it was dated to have been published. As such, citizens are deemed to know the law even so it is weeks later that they can access any knowledge about certain details. How on earth can anyone expect a person to :know the law i n such circumstances, and yet be legally accountable nevertheless. .In my published books I did
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include evidence to show payment versus finally being able to obtain a copy of the Gazette at times weeks later. And why in the first place should any citizen be caused to pay for a Gazette to be able to know what the law is? After all, not everyone can afford the expense of paying for a Gazette? In my view this in itself must be deemed unconstitutional. And there is a lot more to it all as I have set out in my published books. Seeking to limit the length of this correspondence it can however be stated that even as late as 10 October 2001 CanPrint, as printers, still sent out a copy. That is 2 days after the proclamation already was to have been published and affected! Again: copies of the extensive documentation was published on 7-6-2006 in INSPECTOR-RIKATI & What is the -Australian way of life- really? A book on CD on Australians political, religious & other rights ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 Despite a request by the Defendant in his 19 September 2002 correspondence, for example, to the Australian Electoral Commission as to provide certain details to prove the validity of the elections basically little had been forthcoming and no evidence at all as to the Proclamation in fact having been published on 8 October 2001! To the contrary, evidence provided proves that not until 9 October 2001 the proclamation was published in Canberra and on later dates in States and Territories. As such, where the writs were for this also defective then none of the members of the House of Representatives were validly elected and neither the Senators for Territories. Because in that Federal election Mr John Howard and other claimed to be validly elected (including Mr Tony Abbott now Prime minister) despite that I notified him that the same problem regarding incorrect writs were continued in the 2013 federal election) as well as Mr George Brandis (current Attorney-General), Mr Malcolm Turnbull (current minister for Communications), Julia Bishop (current minister for Foreign Affairs), Mr Joe Hockey (current Treasurer) and others then the appointment of Mr Peter Cosgrove appears to be having in my view a sinister purpose, much as like the former prime minister Julia Gillard did appointing her former boss as a judge in a manner as I understood it to silence him to reveal details about unlawful conduct. Relating to Ms Julia Gillard. Obviously, it is unlikely Mr Peter Cosgrove will allow a Royal Commission to investigate his own as I view it unconstitutional and criminal activities. And by this it will be a blanket protection against those in power then and now. Indeed, as I clearly challenged the validity of the 2001 federal election then within s64 of the constitution those ministers then appointed lost their seats after 3 months of their appointments. This means that at the time of the Iraq invasion none of them were validly Ministers of the Crown. None of them can therefore have the protection of ministerial Office
HANSARD 4-3-1891 Constitution Convention Debates QUOTE Sir HENRY PARKES:
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The resolutions conclude: An executive, consisting of a governor-general, and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives expressed by the support of the majority.
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What is meant by that is simply to call into existence a ministry to conduct the affairs of the new nation as similar as it can be to the ministry of England-a body of constitutional advisers who shall stand as nearly as possible in the same relation to the representative of the Crown here [start page 27] a her Majesty's imperial advisers stand is relation to the Crown directly. These, then, are the principles which my resolutions seek to 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p26
lay down as a foundation, as I have already stated, for the new super structure, my object being to invite other gentlemen to work upon this foundation so as to best advance the ends we have in view. END QUOTE
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We may have Members of Parliament appointed because they were sports stars or singers, etc, but constitutional advisors is what I view they are not. As result because the GovernorGeneral is limited in who to appoint and when we end up with deceitful Ministers who violate the true meaning and application of the constitution, and an Governor-General fearing to be removed on request of the Federal Government then is so to say a lapdog impotent GovernorGeneral. But, worse is that such a Governor-General not having the legal link if not appointed on recommendation of the Home Office, then no valid Royal Assent can be deemed to have been given by any such appointed or purported appointed Governor-General. This then I view brings the British Crown in disrepute.
Hansard 1-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. MUNRO: I do not see the necessity for considering the hon. member's proposal at the present time. I am proud of being a citizen of the great British empire, and shall never fail to be proud of that position. I have no desire to weaken a single link binding us to that empire, whether as regards the appointment of a governor-general or anything else. END QUOTE HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that it is based on the people's will, and that in it every personal unit of the population shall be recognised and his individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall also have its individuality preserved and its independence assured. I do not think we can afford to dispense with either of these two things. We cannot afford to dispense with the guarantee of the personal individual rights of every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense with the individual or separate rights or interests of each of the separate States-if my hon. friend Mr. O'Connor prefers that term. We cannot neglect to provide for their due recognition. The next principle I shall lay down is this: That in dealing with this federal authority we should confer on it no powers which it cannot exercise more wisely and well and effectively than the States can exercise those powers. I would even go a step further, and lay down as the principle which should govern our conduct: To the States all that is local and relating to one State, to the Federal authority all that is national and inter-State. I wonder whether I can secure the absolute adherence, no matter where it may lead us, of a majority of this Convention to that principle: To the State everything that is local and relating to one State, to the Federal power everything that is national and of inter-State importance. I pass from these two general principles to a discussion of the only other preliminary I shall have to touch, and that is the question of the appointment of the representative of the British Crown in the person of the Governor-General. I do not take it that the words of the Enabling Act requiring us to frame a Constitution for a Federation "under the Crown" bind us in the matter of whether or not we shall elect our own Governor-General, because I take it that the legal bonds which bind us to the mother-country, to the great British Empire, are chiefly, first the right of veto which the Imperial authorities have over any Acts our local Legislature may pass, and which the Federal Legislature may pass, and next the right of the Imperial Legislature at any time to pass legislation which may affect us, or which may revoke any legislation affecting us. These are the great legal bonds which bind us to the British Empire. But above all this, the greater and wider, and, to my mind, much more important [start page 145] bonds than the legal bonds are those of kinship, of language, and of sympathy that must always bind us to the motherland. The mere appointment by the Crown of the Governor-General is not a real bond. That this is so is recognised to-day in that we have presiding, now and again, in the position of Acting-Governor of one or other of these colonies, gentlemen who so preside by virtue of their position upon the legal bench. In the appointment of the Governor we have only one link, and that link is again and again missing when gentlemen, owing to their legal position, temporarily occupy the office. Mr. SYMON: By vice-regal appointment. Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it is actually called into existence by the absence of the Governor; but we can at this moment, if the necessity arises, appoint a 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p27
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new occupant to the Supreme Court Bench, and that would qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is clear that to that extent it lessens the argument that the main link that binds us to the mother-country is the appointment of the Governor, and shows that it is an argument which has not half so much weight as some of the speakers would have us believe. But I take a very strong position against the election of the Governor-General by the Federation, not because I believe it would mean losing a link which binds us to England, but that we should have a man of such power and authority, derived directly from the people, that he would certainly clash with the other powers and authorities we propose to set up under this Constitution. END QUOTE
It must be clear that the framers of the constitution had the wisdom not wanting a GovernorGeneral other than being a legal link with the mother country and the British Crown and not some lapdog of the Australian Government. 15 We now have to consider some parts of the constitution: Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
3 Salary of Governor-General 20
There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office.
END QUOTE
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Commonwealth of Australia Constitution Act 1900 (UK)

QUOTE
66 Salaries of Ministers 30
There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.
END QUOTE
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Your Majesty may unlikely have little difficult as to be able to check that for years on end if not numerous decades no such payments were made to Your Majesty. If therefore no such payments were made to Your Majesty, it means any account held for this purpose, then where is the monies coming from that the Governor-General and ministers are collecting?
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Moreover, as it was alleged in a recent email I received the following is being paid out: Salary of a Retired Prime Minister S450,000 for Life Salary for a Retired Politicians .. $174,000 for Life Salary of House Speaker $223,500 for life Salary of Majority/Minority Leader $194,000 for life Average salary of a soldier . $49,000 a Year Average Income for Pensioner $12,000 a year
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Besides this not just former politicians but also their wives, etc, are I view also ripping of the Consolidated Revenue Funds by using Gold Card and other perks they are not entitled upon.
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The Framers of the constitution made clear that the moment a person vacates a seat in the parliament then that is the end to any entitlement of payments. As such a Minister can still receive a salary from the Queen while still acting as a Minister but cannot receive a
allowance for being a Member of Parliament. And his commission as a Minister ends when 3 months have passed and he/she is not re-elected to Parliament. As I understand it Alexander Downer (former foreign minister) mother has been using a GOLD CARD at taxpayers expenses about 40 years since her late husband was a Member of Parliament. These and numerous other incidents have been occurring for decades on end.
QUOTE EMAIL 2-10-2006
From: G. H. SCHOREL-HLAVKA <schorel-hlavka@schorel-hlavka.com>
To: May, Shane $Sen N. Sherry$ <Shane.May@aph.gov.au> Cc: inspector-rikati@schorel-hlavka.com Date: Tuesday, October 03, 2006 01:59 am Subject: Re: re superannuation, etc.
I read the attached response, but it is not a response at all as it doesn't at all address what I raised as issues! A tribunal cannot override constitutional limitations! Neither are members of parliament employed by the Commonwealth of Australia. Ministers are in employment by the British Monarchy!
-----Original Message----From: May, Shane $Sen N. Sherry$ [mailto:Shane.May@aph.gov.au] Sent: Monday, October 2, 2006 02:31 PM To: schorel-hlavka@schorel-hlavka.com Subject: Re:re superannuation, etc. Dear Mr SCHOREL-HLAVKA Thank you for your email to Senator Nick Sherry. He has asked me to forward his reponse to you. His response is attached. If you have any further queries please contact me on the numbers below. Sincerely yours
_________________________________________
Shane May
Advisor to Nick Sherry Labor Senator for Tasmania Shadow Minister for Superannuation, Intergenerational Finance, Banking & Financial Services Phone - Electorate Office: (03) 6424 8241 Parliament House: (02) 6277 3128
<<Schorel-hlavka - MPs super - 02.10.2006.doc>> -----Original Message----From: G. H. SCHOREL-HLAVKA [mailto:schorel-hlavka@schorel-hlavka.com] Sent: Thursday, 7 September 2006 11:39 PM To: INSPECTOR-RIKATI@schorel-hlavka.com Cc: Scullion, Nigel (Senator); Sherry, Nick (Senator); Siewert, Rachel (Senator); Stephens, Ursula (Senator); Sterle, Glenn (Senator); Stott Despoja, Natasha (Senator); Troeth, Judith (Senator); Trood, Russell (Senator); Watson, John (Senator); Webber, Ruth (Senator); Wong, Penelope (Senator); Wortley, Dana (Senator) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p29
Subject: Fwd: re superannuation, etc.
-----Original Message----From: G. H. SCHOREL-HLAVKA [mailto:schorel-hlavka@schorel-hlavka.com] Sent: Thursday, September 7, 2006 11:29 PM To: INSPECTOR-RIKATI@schorel-hlavka.com Subject: re superannuation, etc. Mr John Howard Parliament House, Canberra, 7-9-2006
Fax 02 6273 4100 Ph; 02 6277 7700 C/o David.Hawker.MP@aph.gov.au
AND TO WHOM IT MAY CONCERN I understand that you refer to 3 months pay for politicians leaving the Federal Parliament and 15% superannuation. When Mark Latham started to state that superannuation was to be reduced to 9% he in fact seemed to try to minimize my claims as that superannuation for politicians are unconstitutional. Firstly, not a single Member of Federal Parliament is constitutionally employed by the Commonwealth of Australia. If you do not know this then check the Commonwealth of Australia Constitution Act 1900 (UK). While Senator Bob Brown (ABC, Lateline 7-9-2006) referred to Politicians being to the top 5% salary earners, the truth is that they are not salary earners for the Commonwealth of Australia! Only those Members of Federal Parliament who are employed by Her Majesty the Queen can claim their payment from the Queen as the Constitution provides that her majesty should be paid from consolidated Revenue. Hence, any Minister of the Crown must seek ?superannuation? from the Queen. As for other Members of Federal Parliament they are not employed and neither entitled to the superannuation. They merely are entitled to obtain an ?allowance? to compensate them for the loss of earning of their normal daily job. Such allowance to be the same for all politicians. While being a politician may be deemed to be very involved, still constitutionally they are not employed as such by the Commonwealth of Australia! It is their private employment that is their job. If they have no private employment or do not run a business then basically they are UNEMPLOYED! As for the ?Gene pool?, well many oppose the way elections are manufactured that benefits those in political unions and for this are, so to say, left out in the cold. On 19 July 2006 I succeeded in both appeals against convictions for failing to vote as I maintained that the 2001 purported federal election was unconstitutional and as such there was no election held and the writs were ULTRA VIRES and that the 1915 intended Section 128 referendum never was proceeded with to give the Commonwealth legislative powers to make voting compulsory, which the framers of the Constitution refused to allow for, and so Section 245 of the Commonwealth Electoral Act 1918 is and remains ULTRA VIRES! Again, I succeeded in both appeals! If you really desire to turn being a politician into a career then the Constitution must be
amended first, but you cannot go about it in the way to rob unconstitutionally and so illegally Consolidated Revenue. Why would anyone want to run around to collect 50 nominations to stand for election as some mini election campaign where the Framers of the Constitution made clear that anyone who is entitled to vote is entitled to be a candidate, even the poor. As a grandmaster ?constitutionalist? I for one may have a better perception about certain constitutional issues then likely any Member of Parliament has. I challenge anyone to prove me wrong that Members of Federal Parliament are employed by the commonwealth of Australia! Therefore, no one can be entitled to some kind of ?reject? payment of about $30,000.00 Perhaps the biggest mistake the Framers of the Constitution made was to try to compensate those Members of Federal Parliament who were to represent the electorate, as they likely never contemplated the sheer abuse of it as is occurring now. Neither is there such a thing as a ?TAX FREE? SUPERANNUATION, as the Framers of the Constitution specifically stated that taxation was to be applied to all people throughout the Commonwealth equally. Actually, ?Tax Free? incomes for former politicians and soldiers also is unconstitutional! Likewise so are tax deductions in regard of donations to religious organizations! If you consider that the ?Gene Pool? requires benefits for after they leave the Federal Parliament then would it not be better to try to get a ?Gene Pool? of people who first and foremost understand and comprehend that there is a thing called Constitution and not even members of Federal Parliament is above it. Therefore, no matter what legislation is put in place to award politicians with 15% and some $30,000 it is and remains unconstitutional and so illegal as the legislative provisions remain ULTRA VIRES and those who take the money nevertheless might just face criminal charges of theft from the Consolidated Revenue, regardless if they are millionaires or not, as it is and remains robbing the Consolidated Revenue! I challenge you to prove me wrong! See also my website www.schorel-hlavka.com and my various books under the INSPECTOR-RIKATI labels. Who knows, the day may come you, and others, may end up in prison for having defrauded monies from Consolidated Revenue? Awaiting your response, G. H. SCHOREL-HLAVKA
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It may be noticed that despite my numerous correspondences on this subject it is being ignored as parliamentarians are too well aware that an ordinary citizens will have so to say hope in hell to hold them accountable before the courts, and could face themselves financial ruin just to try to enforce the true meaning and application of the constitution because of the so to say inappropriate conduct by judges to serve their political masters rather than to confine their conduct within the duties and obligations of their office to provide JUSTICE.
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From what is being state in this correspondence it is merely a very-very small proportion as to what is going on and I for one have lost any faith in ever being able to obtain JUSTICE in the courts. I often am given the understanding by others that they desire a republic because the monarch simply isnt bothering to ensure that citizens are protected as to their rights and privileges and the Governor-General acting on behalf of the Monarch couldnt care less. This is a very serious matter, as people then view the Monarchy made itself redundant because of the way the Governor-General is involved in allowing this to continue instead of acting as he/she should be as the Chief Executive Officer of the Commonwealth of Australia. And when the current governor-General herself then is participating in what I view defrauding the consolidated Revenue funds for her overseas trips then obviously this undermines the standing of the monarchy, hence it is essential that this is attended to and appropriately addressed to prevent further incidents. http://www.news.com.au/national-news/federal-election/prime-minister-kevin-rudd8217sleadership-spill-will-cost-taxpayers-over-5-million/story-fnho52ip-1226675634705 STEVE LEWIS AND LANAI SCARR EXCLUSIVE News Limited Network
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20 July 08, 2013 10.37AM Prime Minister Kevin Rudd's leadership spill will cost taxpayers over $5 million 25 Why on earth should the issue of political difference within a party cost taxpayers about $5 million whereas the office of prime Minister should be non-political for all citizens to be represented one may ask? This underlines the gross abuse of Consolidated Revenue Funds unabated! http://sixtyminutes.ninemsn.com.au/stories/raymartin/307110/60-minutes-presents-the-greatdebate-australia-decides-election-07
QUOTE Mr Kevin Rudd Sunday, October 21, 2007
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On the question of unions, I'm proud of the team that I lead. They're a great bunch of people. They've got a range of experience. I've have people who have been university lecturers, economists, people who have acted as small business operators, a former rock star, myself, an unemployed diplomat who speaks Chinese.
END QUOTE Mr Kevin Rudd Sunday, October 21, 2007
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When writs are issued for a general election then this means Members of the House of Representatives no longer are Members of the House of Representatives, albeit half of the Senators of the Senate will retain their seats until the next 1 July, when half vacate their seats and a new half commence to take up their seats which may include Senators who had been reelected. Nevertheless as I discovered with Mr Malcolm Turnbull he was using his former parliamentarian email address while the election was going on and he was no longer a Member of Parliament. I understood he was. Like other former Members of Parliament nevertheless using the parliamentarian perks, etc, during that time. Which underlines the issue that not only was this in violation of s44 to receive monies from the Commonwealth (when not entitled to as a former Member of Parliament, and as such must be deemed to have been employed by the Commonwealth (and this may also be questionable). In fact I understand that Mr Tony Abbott did so prior to be commissioned to form a government as Prime Minister. While Senator George Brandis as a Senator was and remained a Senator during the time of the
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election as his turn was due to expire the following year on the 1 of July 2014 unless reelected, as he was, however it cannot be accepted that he could use his parliamentarian perks, etc, when other former Members of Parliament of the House of Representative couldnt do so, as Parliament was never intended to exist upon political bias. Indeed, I decided not to stand for election, as I had done in the past as an INDEPENDENT candidate, this because Member for federal seat of Jagajaga Ms Jenny Macklin being able to use her position to finance parts of her election campaign as well as have her phone calls, travelling, etc paid for by taxpayers whereas I would have to do so from my own pocket. As such there are no FAIR and PROPER elections.. In particular in large seat such as the Mallee, one can be travelling for days on end from one area to another. I then also found as an INDEPENDENT candidate that it was financial backbreaking whereas those in the parliament or former Members of parliament standing for re-election were able to use their parliamentarian perks, etc, no matter how unconstitutional. I am not aware the Australian electoral commission ever bothered to hold any of them legally accountable regarding what I view concealment of Funding. Not that the Australian electoral commission was totally inactive as it would pursue me for alleged breaches such as giving out carrying bags but not the Liberal party for doing the same. Just that they couldnt keep it sticking on me because I had given the bags to a shop keeper who then had customers, irrespective if they were electors or not, taking them whereas the Liberal Party as I understood it in Prahran had its candidate and supporters handing it out to electors. Then during the 2012 council elections I was given the understanding by a committee member of the Liberal party that there was a group of people set up, including lawyers and judges, to counteract anything I pursued. I got the message that for me to go to court about any constitutional issue would result that the case would be railroaded and this subsequently eventuated also in the County Court of Victoria.
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QUOTE 13-9-2013 CORRESPONDENCE Mr Tony Abbott Tony.Abbott.MP@aph.gov.au
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Ref: 130913-Mr G. H. Schorel-Hlavka O.W.B. to UNEMPOLOYED & FORMER MEMBER OF PARLIAMENT Mr Tony Abbott
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Tony, as a CONSTITUTIONALIST, I did at least appreciate that Mr Kevin Rudd during the 2007 federal election admitted that he was unemployed. This I had referred to earlier. Over the last few days I have been listening to Smooth 91.5 FM and the news bulletins were as I understand it on Thursday 12 September 2013 that Mr Bill Shorten was seeking leadership of the ALP as to combat the Coalition. Moment the man is still a Minister in Government! That brings me to your proclaimed honesty, during the election. I understood that even when Ms Julia Gillard was in power, you claimed that you were ready to be the alternative government. Yet, now with the election over it seems you are still not a Prime Minister, but still an unemployed former Member of Parliament. About a week after the election it seems you are not at all in a hurry to show the people you are actually ready to govern. If, so to say, today New Zealand were to invade Australia then Mr Kevin Rudd. would be in charge, as he still is to my knowledge Prime Minister. It would be the Minister of Defence who would be dealing with it. And then I understood Ms Julia Bishop having instructed that Mr Steve Bracks appointment is not proceeding. As I understand it she is also an unemployed former Member of Parliament. So, how can the department accept her directions when she is neither the responsible Minister and certainly not a Member of Parliament. I understood from the news bulletins that you are waiting for Mrs S. Mirabella as to her being confirmed in the election as the successful candidate so as to ensure she gets a portfolio. Are you saying that you hold so to say Australian community at ransom waiting for the election result of her rather then to be ready, as you claimed for so long to be? Surely, you ought to understand that this is a bad start, but there is more! END QUOTE 13-9-2013 CORRESPONDENCE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p33
QUOTE 20-9-2013 CORRESPONDENCE Mr Malcolm Turnbull, Minister Malcolm.Turnbull.MP@aph.gov.au
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Ref: 130920-Mr G. H. Schorel-Hlavka O.W.B. to Mr Malcolm Turnbullt Re republican versus monarchist-etc
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Malcolm, as a CONSTITUTIONALIST I put the challenge to you to disprove my reasoning in my 130920Mr G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott Re various issues-Republic by stealth! correspondence to Mr Tony Abbott, of which you were provided a copy via email at the same time. While your email refers to MP it must be clear you are not a Member of Parliament until the writs are returned, and you are sworn in for the seat elected for. If in fact you fail to accept the seat then you will not become an MP (Member of Parliament) either. It is of concern to me what we have people running around using the references of MP even so they are not, and worse are fraudulently using Consolidated Revenue Funds for this. With all those lawyers in the parliament it seems not a single one understand the true meaning and application of the constitution and many are therefore fraudulently using monies from Consolidated Revenue Funds as result, but if a pensioner was to do the same then politicians would argue they deserved to be punished as they are stealing from the taxpayers. Well to me every politician doing the same likewise should be facing the courts and no excuse for not knowing what is applicable. . I can accept that any successful candidate for purpose of travelling to the Parliament to take up the seat would be entitled to compensation in regard to this, including a limited overnight accommodation cost. That the Framers of the Constitution considered and for this also provided for an allowance. Therefore a Minister of the Crown is entitled, when having taken up a seat in the parliament, to an allowance and as a Minister also entitled to receive remuneration for being a Minister of the Crown. the allowance is payable from Consolidated Revenue Funds whereas the salary is payable by the Queen, for which He r Majesty receives monies from Consolidated Revenue Funds. It is important that it is understood that a Minister is and remains entitled to any allowance; when also being a Member of Parliament. A Minister, such as yourself, not now being a Member of Parliament therefore cannot receive the same amount of monies as you would once you become a Member of Parliament, if at all. For example, so to say, you could be declared a bankrupt before being able to take up the seat and then by s44 of the constitution you would not be able to take up the seat and your appointment as Minister would expire by no later then 3 months after the appointment commenced (Section 64 of the constitution). Obviously, my issue is if you and other former Members of Parliament, since the House of Representatives was dissolved, nevertheless continue to use the perks as a Member of Parliament, such as mobile and other communications at expenses of the taxpayers and likewise travel and use accommodation even so not constitutionally entitled upon? . The mere fact that you continued to use the email address Malcolm.Turnbull.MP@aph.gov.au seems to indicate to me you lack a proper understanding about the true meaning and application of the constitution, this despite that many years ago I already pointed this out to you, when you were in the Howard led Government. I refer to Howard led Government because it was not a Howard Government because constitutionally the Governor-General is heading the government as the CEO of the Commonwealth of Australian representing the British monarchy. QUOTE
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Attorney-General, Minister for the Arts, (Deputy Leader of the Government in the Senate), (Vice-President of the Executive Council) Senator George Brandis END QUOTE It appears that Mr George Brandis was appointed as vice president of the executive council, which I view is in clear breach of the constitution, if this also were to be to represent the Governor-General in absenteeism. . QUOTE p34 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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4 Provisions relating to Governor-General The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth END QUOTE In my view the separation of powers of the Federal Executive and the Monarchy (which the GovernorGeneral represents) should not be undermined. In particular where the Framers of the Constitution desired the Governor-General to be appointed on recommendation of the Home Office (10 Downing Street) an d NOT by the Australian Government!
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Fancy, an Australian government about to face an election demanding the Governor-General publish in the Gazette a Declaration of War against a certain nation or the Governor-General is sacked by the Australian government. it would violate the impartiality of the Governor-General, and no longer could be seen to act for the general community but would become no more but as political lap dog of the Government of the Day. Neither can we operate under a British Constitution but not have the British monarch, so her representative the Governor-General maintaining the legal link! Anyone desiring a republic better work out the basic issues, and not just assume it will all fall into place by itself.
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The Governor-General, for example, when travelling outside the boundaries of the Commonwealth of Australia has no powers ordinary assigned to the governor-General and must appoint a person, not in receipt of any payments from Consolidated Revenue Funds, via the Queen or otherwise, while acting for and on behalf of the Governor-General but must be paid by the absent Governor-General! There is no constitutional powers to pay a Governor-General while abroad as well as a person doing the job for the Governor-General. The Framers of the Constitution made clear it would be the absent Governor-General who would have to pay the temporary replacement from his/her own pocket. It seems to me that when you were leading the Republican movement you simply never really understood what you were on about, because it appears to me you still dont. How then on earth could you have been heading the Republican movement and in the process misled so many people who assumed you knew what you were talking about? END QUOTE 20-9-2013 CORRESPONDENCE
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In the former Speaker peter Slipper case the issue before the Court is what are the privileges of the House of Representatives. What appears to have been is that the House of Representatives requested the Police to investigate misuse and abuse of monies by Member of Parliament Mr Peter Slipper. It must be stated that the same didnt apply to the misuse/abuse such as by Mr Tony Abbott and others to attend to a wedding of a political colleague, (now former) Member of Parliament S. Miranda. If the same eventuated that a pensioner by error was incorrectly overpaid then so to say hell would brake lose upon the pensioner and repayment ordinary be enforced regardless of the hardship caused but parliamentarians appears to indulge in any fraudulent conduct and ordinary citizens can only wonder why they can get away with it all so often. The lack of clear and precise rules may be also the culprit to this. However, I view that where the Parliament has requested the Police to investigate matters then by it has given the police and so the courts to deal with matters on a criminal nature. It cannot be held that where the Parliament in its wisdom engages the police for criminal investigations then somehow the accused can avoid criminal liability and sanctions on the basis it are privileges he enjoyed. It is a well-established rule for any House of the Parliament that it is a sanctuary for those within the House. However, if a visitor or for that any Member of the house or any employee
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of the House were to conduct himself/herself in a manner that the speaker were to hold it appropriate to call in police or other authorities, as to deal with the offender then the Police or other authority so requested to act can do so. This then is not a violation of the sanctuary/privileges of the House as it eventuates on request of the House concerned. Where then the House may not have specifically provided concise rules then by involving the police or other authority the House must have left it up to the Courts to assess ion the basis of the evidence before it if the accused was or was not in violation to privileges, etc. In my view, the relevant House could order an alleged offender to be placed in custody in a cell belonging to the House and deal with the matter internally. For example a Member of the house who was to become violent towards other members or even others may very well be held in confinement for some duration so that the house can deal with this member at an appropriate time. However, the House may elect that to call in the relevant authorities may be more appropriate in certain circumstances and so if this involved the Police then the House clearly accepted that the matter then is disposed of , where it is deemed necessarily within the courts. It then must have accepted that it is no longer and confined in-House matter and by it has authorised the courts to deal with it as it deems fit and proper. It would be impossible for A House to create a rule for every possible incident that may or may not eventuate and even the legislators themselves when it comes to crimes will for ever add new issues of conduct to be unlawful and as such becomes a crime.
Hansard 1-4-1891 Constitution convention Debates. QUOTE Clause 8. The privileges, immunities, and powers, to be held, enjoyed, and exercised by the senate and by the house of representatives, respectively, and by the members thereof, shall be such as are from time to time declared by the parliament, and until such definition shall be those held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom and the members thereof at the date of the establishment of the commonwealth. Mr. ADYE DOUGLAS: I suggest that in the first line of this clause the word "powers" should be omitted. Nobody intends, I presume, that the powers of the House of Commons shall be vested in the senate or house of representatives. Mr. DEAKIN: Not in the senate! Mr. ADYE DOUGLAS: Nor in the house of representatives. Nobody knows what the powers of the House of Commons are; but we know what its privileges are. I beg to move as an amendment:
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That the word "and" be inserted between the words "privileges" and "immunities" with the view of afterwards striking out the words "and powers." [start page 586] Sir SAMUEL GRIFFITH: I would point out that this is a phrase which has been used in so many constitutions that it has come to have a regular recognised meaning. At the same time, this is not dealing with the powers of parliament, but with the powers of the houses of parliament. One of the most important of those powers is, I presume, to keep order, and to summon persons before the house, and to give evidence before select committees, and that is not a power which falls within the word "immunities"; nor does it, I think, fall within the word "privileges." "Authorities" might do if the word "powers" is thought to be too large. Mr. ADYE DOUGLAS: It is well understood that the powers of the House of Commons are just what they choose to declare them to be. There is nothing fixed nor definite; and a parliament such as ours ought not to have power to declare what its powers are, and to extend those powers as the House of Commons may do. Mr. BAKER: As the hon. member, Sir Samuel Griffith, says, these are well known words. No doubt they are; but we are establishing a different form of government altogether. We are establishing a form of government in which the federal parliament shall have certain specified powers, and the states parliaments shall have certain specified powers, and I confess that this word "powers" puzzled me when I first read it. I understood the intention to be as stated by Sir Samuel Griffith, but I do not think it is at all clear. The word 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p36
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"powers" should either be left out altogether or the word "authorities" substituted. There should be something to show that it is not intended, as would appear from the clause as at present worded, to give to the senate and the house of representatives power to declare that they can do anything they like. Mr. DEAKIN: Drop out the "senate," then it will be all right!
Mr. BAKER: Perhaps the house of representatives might be dropped out too; that would be the best way, and let the clause read "the members thereof." I do not think the wording of the clause is satisfactory, although I agree with its intention. Mr. WRIXON: It seems to me that it would be better if we followed in this case the formula adopted in more than one of our constitution acts, and defined the privileges, immunities, and powers by saying they shall not exceed those enjoyed by the Commons House of Parliament. Then you have a limit; you know what you are doing, and you define the extent of the powers and privileges which you are conferring. Mr. DEAKIN: Why should we tie our own hands? Mr. WRIXON: I think it would be unwise to leave it perfectly open to the federal parliament to claim anything and call it a privilege. Ample privilege is now vested in the House of Commons for every legislative purpose, and I think that this would meet the view of the hon. member who raised the point. Mr. ADYE DOUGLAS: No, it does not. You have now simply the rules of the House of Commons as defined up to the present time; but the House of Commons could to-morrow declare its present powers extended in any way it wished, and by the clause as now worded we would give to the federal parliament all the powers of the House of Commons, and surely that is not the intention.
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Mr. DEAKIN: Yes! Mr. ADYE DOUGLAS: I see no objection to giving the federal parliament all the powers of the House of Commons as defined up to the present time; but this clause would give to the parliament all the powers of the House of Commons at any time. Mr. WRIXON: It would give to the parliament anything they liked to claim!
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[start page 587] Mr. ADYE DOUGLAS: There is no legislative limit to the powers of the House of Commons; they may extend them as they please from time to time. I think it would be sufficient if we gave to the federal parliament only the privileges and immunities of the House of Commons.
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Sir JOHN DOWNER: I confess that I had grave doubts as to whether or not we ought to give to either the senate or the house of representatives unlimited authority with respect to what they might be pleased to consider their privileges, immunities, and powers, and if I knew of any intelligent way of limiting the powers of the federal parliament, I should be glad to limit the powers of both houses. But after consideration, I have come to the same conclusion as that arrived at by some members of the committee, namely, that if we limit the authority of the federal parliament ultimately to the analogy of the House of Commons, we shall have the greatest difficulty in finding out what that limitation really is. I think it would be as well to let the clause stand as it is, and trust to the good sense of the commonwealth as sufficient to guide us, without adopting an analogy with reference to the House of Commons which we do not understand, and cannot define. Amendment negatived.
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Mr. ADYE DOUGLAS: There appears to be a clerical mistake in the sixth line of the clause. Instead of the words "until such definition," I think it should read "until so declared." Sir SAMUEL GRIFFITH: The hon. member is correct; the word "definition" is a mistake. The word originally used in the same line was "defined," but it was altered to "declared." Amendment (by Sir SAMUEL GRIFFITH) agreed to: That the words "such definition" be omitted with the view of inserting in lieu thereof the word "declared."
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Mr. BAKER: I may state that this clause is copied almost verbatim from the British North America Act. An act was passed-38 and 39 Victoria-repealing that section which we are now going to adopt, and which act says:
And whereas doubts have arisen with regard to the power of defining by an act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers, or immunities; and it is expedient to remove such doubts, be it therefore enactedIt then goes on to say what the clause really meant. As there were doubts about this clause, and it was necessary to pass an imperial act to remove them, surely it is not wise for us to adopt it. Mr. DEAKIN: Read the amendment!
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Mr. BAKER: First of all they repeal that clause, and then they say: The privileges, immunities, and powers to be held, enjoyed, and exercised by the senate, and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by act of the Parliament of Canada; but so that the same shall never exceed those at the passing of this act, held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. Mr. DEAKIN: That is no better! Mr. BAKER: I do not know the reasons which actuated the Imperial Parliament in repealing this clause which we are now seeking to adopt, and in inserting the other, but there must have been some reasons. I believe this act was passed at the suggestion of the Canadian Parliament.
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Sir SAMUEL GRIFFITH: I think there is no difference in the point raised from the one raised a few moments ago. The Parliament of Canada never had power to take any more privileges than were enjoyed by the British House of Commons in March, 1867, and they did not know how to go to work in 1875 subject to that condition. Clause, as amended, agreed to.
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END QUOTE
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It is difficult enough to get any Member of Parliament to be brought before the courts to be held legally accountable for any misdeeds and this perhaps is also why so many parliamentarians are rorting the system as if there is no tomorrow. Mr Tony Abbott seeking to excuse his 2007 usage of public funding to attend to a wedding as being a Member of Parliament where clearly, at least I view, the wedding had nothing to do with in-House procedures. We just have no proper system in place that will guard against such abuses. Hence the need for the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) as set out below. In my view this OFFICE-OF-THE-GUARDIAN should be under direct authority of the Governor-General Office, so that politicians cannot corrupt it. It should be and remain a nonpolitical office. What we therefore have is that on the watch of ever Governor-General (the Framers of the Constitution deemed to be the Chief Executive Officer) this elaborate theft from Consolidate Revenue Funds has been escalating unchecked. Moreover the constitution also provides for:
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QUOTE
48 Allowance to members 50
Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the
day on which he takes his seat.

END QUOTE
I will not go into extensive details but merely to state that clearly a Member can only receive an allowance while actually being a Member of Parliament (as indicated above) and not beyond. Hence it is in my view an organised rip of (conspiracy) to defraud taxpayers (Consolidated Revenue Funds) of monies after they have left the seat.
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Also former Prime Ministers and former Governor-Generals are provided with an office, chauffeur driven car, etc for life and again to me this is plain theft as there is no constitutional provision for funding this from Consolidated Revenue Funds. And moreover the Framers of the Constitution held:
HANSARD 16-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON (New South Wales).-No, there would be no prohibition in that respect. The offices of Speaker and Chairman of Committees are not offices of profit under the Crown. They are parliamentary offices, and Parliament has always retained a power over its own Estimates to the extent that really the Speaker and President of the local Chambers have always exercised a right to submit their own Estimates, and those Estimates, as a rule, as far as I know in practice in my own colony, are altogether untouched by the Government of the day. Now, these are political offices, but not offices of profit under the Crown. I think that that is the principle that Parliament has always asserted in England and elsewhere. As to the word " person," the British Interpretation Act of 1889, which will be largely applied to the construction of this statute by the Imperial authorities, provides that where the word " person" is used, unless the Act otherwise provides, the word "corporation" shall be included. Mr. HIGGINS (Victoria).-If a man agrees to get paid for services done in Parliament, or for the Commonwealth, and if he does the work, and, having done the work, he resigns, is there no penalty? Is there no punishment in such a case for a man who guarantees that he will use his position in Parliament in order to make money, and, having made it, resigns! Mr. BARTON (New South Wales).-No; and there is a reason for that. If I recollect correctly there was some provision in the Bill in Adelaide in that respect, but that provision was omitted in the sitting of the Convention at Sydney as a matter [start page 2449] of policy. Mr. O'Connor suggests that it is quite probable that in such a case an action would lie at common law. However that may be, the policy of inserting such a provision was reversed in Sydney, and therefore the Drafting Committee could not frame any proposal to that effect. END QUOTE
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Therefore the Speaker of the House of Representatives and the president of the Senate can only receive funding from the Parliament while actually performing this function and not beyond. It is absurd that a person who might be a speaker for a few weeks and then so to say is tossed out then for life can still receive about 20 times the amount of a pension that an ordinary pensioner may receive having worked whole his life to pay for his own pension.
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The question obviously is who do you turn to get this all sorted one may ask?
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The government is now acting as a corporate government registered in the District of Columbia. A foreign entity. The Courts, including the High court of Australia are now registered with ABN (Australian Business Numbers) as part of the government, rather than being impartial under the constitution.
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HANSARD 25-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SYMON.22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p39
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When we have done this it follows that as there is an element of policy, the existence of which no one can deny, it will be even more necessary than in the case of the Federal High Court-which is not to deal with matters of policy, or matters tainted with policy, to use the expression of another speaker-that the tribunal which we are creating should be above the breath of political intrigue. To secure this, I think, some provision should be inserted similar to the provisions which we have inserted in regard to the Judges of the High Court. Whatever may have been the case as the Bill left us after the Adelaide session, it seems to be imperative now, to give effect to what has already been done, that we should introduce into the Constitution provisions binding the Federal Parliament to create an Inter-State Commission, and placing the Inter-State Commission, when created, on a level which will raise it above the possibility of the suspicion that its judgments or actions have been in any way influenced by political considerations. END QUOTE
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Yet we have no Inter-State Commission despite it being constitutionally obligatory, as now the Prime Minister uses it as his own so to say private slush funds. And we now have Ministers of different State getting together using an meeting called CoAG to unconstitutionally to circumvent the Inter-State Commission.
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But lets hear from a Supreme Court judge just before he retired: From The Age 20
http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html QUOTE The corporatising of our courts Retirement speech of John K. Phillips, Supreme Court of Victoria March 24, 2005
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In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of the court's independence. For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to bite my tongue.
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I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and especially as I grew more senior, I have watched with some concern a change emerge in the perception of this court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have been unable to say much about it until now and when my resignation becomes effective, I fear that nobody will listen. As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularly the independence of this court, which must, from time to time, tell the political arms what they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have been sitting here, I have seen what appears to me to be some erosion of this court's independence. One of the most public examples recently was the refusal of the executive to accept the decision on remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and so ensuring the independence of which I am speaking. Less well known was the refusal of earlier governments to allow that the court's own chief executive officer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately answerable to the Department of Justice, which is what happened. That appears now, if I may say so, to have been but part of a movement towards this court's becoming absorbed into that department, and it is that to which I want to draw attention in particular; for such a movement must be reversed if this court is to have, and to keep, its proper role under the constitution.
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This court is not some part of the public service and it must never be seen as such. Established as a court of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third p40 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control and to limit those other arms according to law and to that end to stand between those other arms and the citizen. Hence the emphasis on the court's independence, especially from the executive.
Yet within the Department of Justice this court is now identified and dealt with - would you believe - as "Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately includes all three tiers of the court structure and VCAT. This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed by departmental regulation, even if a part of those fees is redirected to the court by the department at its discretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in disregard, if not in defiance, of the convention that such matters are for rules of court. And perhaps most troubling of all: the judges' computers, which were provided by and through the department, are but part of the departmental network. I do not say that departmental officers ordinarily avail themselves of the access that that affords; one hopes the department has some controls in place. But access is possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major litigant in this court, and sometimes on matters of critical import to the wider community. Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise than by argument in open court, but what has been happening is more insidious. What is evolving is a perception of the court as some sort of unit or functionary within the Department of Justice, a perception which is inconsistent with this court's fundamental role and underlying independence.
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Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it must be restored if the proper constitutional position is not 2to be subverted. The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be, impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and ideally, without hope of additional gain or reward from anyone, including any other arm of government. Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly so called, exercises administrative functions but not judicial power, and many things flow from that. Such a tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is fixed independently of the executive. You will see, now, how far the distinction between court and tribunal has become blurred. While the Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when, in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is altogether inconsistent with such a form of tenure. There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial and so must eschew all other interests which might one day give rise to conflict or the appearance of bias. In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded of the appointee. John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to the court. END QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p41
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As such we now have the Governments running the Courts and well these days becoming a criminal is not an exception not to be one is more of an exemption. If for example Your Majesty was to register a motor vehicle in the State of Victoria, and a you had it parked in a garage and it didnt more an inch then nevertheless Your Majesty could end up not just be deemed to be a criminal but have a warrant issued against you, because it has been happening to thousands of people who never even were driving in Victoria but a private corporation operating the court computers are issuing fines/purported court orders and purported warrants against innocent people, where for example they happen to log into the wrong data base of another State. Hence, our court systems are corrupted that innocent people are being arrested in the process. Little joy for them to afterwards having been found wrongly made a criminal and perhaps even arrested because the private company logged into the wrong data base. I understand it happened with 209,000 NSW motor vehicle owners.
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We the People (those then alive) accepted a constitution for Federation and this is containing numerous legal principles, such as
Hansard 21-1-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-
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I want to know from what point of view this can be called federal? We keep our property; we are left to the free exercise of our brains and bodies; there is no interference with the individual; state rights are to be preserved. Surely, collaterally with that, state rights ought to be preserved too.
END QUOTE
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Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth . END QUOTE Hansard 5-3-1891 Constitution Convention Debates QUOTE Mr. MUNRO: . I quite admit that the United States system suits them; and if we are simply going to form a republic, and to establish an institution in which the executive will not be in Parliament, and will not be responsible, the state of affairs will be totally different. But I am contemplating that this Convention has in view the formation of true responsible government. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him. END QUOTE
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HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution , END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p42
END QUOTE
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Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. HIGGINS.-But suppose they go beyond their power? Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly any law the citizen has his right. END QUOTE Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
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Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry. As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole constituency behind the Federal Parliament will be a sentry. END QUOTE
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Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me. But the question for us to consider is whether a court like the Federal High Court or the Privy Council would ever come to such a conclusion. One would think it highly improbable. The real question that may arise under this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitutionthe Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p43
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court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. END QUOTE Hansard 19-4-1897 Constitution Convention Debates QUOTE Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE
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Hansard 22-2-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).-
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That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has described, of choosing or setting up a code of laws to interpret the common law of England. This Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to this, not to a small select body of legislators, but to the whole body of the people for their acceptance or rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and it is the whole body of the people, the more or less instructed body of the people, who have to understand clearly everything in the Constitution, which affects them for weal or woe during the whole time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be appreciated by the people. END QUOTE Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. END QUOTE
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I could list a host of others but essential the message I convey is that we have so far not particularly been served appropriately with the governor-Generals who so far served by your commission and I view Mr Peter Cosgrove unlikely would do any better, in particular considering the above stated.
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Getting back to the issue of Inter-State Commission I now quote a correspondence to the Governor-General Quentin Bryce QUOTE 2-7-2013 CORRESPONDENCE WITHOUT PREJUDICE Quentin Alice Bryce Governor-General 2-7-2013 Email; governor-general@gg.gov.au
Ref: 130702-Mr G. H. Schorel-Hlavka O.W.B. to Q A Bryce G- Re appointment Inter-State Commissioner
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Madam, as per requirements of Section 101 (Inter-State Commission) of the Commonwealth of Australia Constitution Act 1900 (UK), our governing constitution, that there always "shall be" an Inter-State Commission, hereby I request you to appoint me as the Inter-State Commissioner.
QUOTE Commonwealth of Australia Constitution Act 1900 (UK) 101 Inter-State Commission There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. END QUOTE (Bold and red colour added by writer) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p44
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While often there are statements as to the 3 branches of Government, in my view one ought to speak of the 4 branched of nationhood. 1. The Parliament 2. The Federal Executives 3. Judiciary 4. Inter-State Commission. As a CONSTITUTIONALIST (retired Professional Advocate) Attorney, Executor, Paralegal, Author and Publisher I submit that I have the understanding what is required from the Inter-State Commission within the framework of the provisions of the Commonwealth of Australia Constitution Act 1900 (UK). The Inter-State Commission: The Framers of the Constitution held that the Commonwealth of Australia should apply taxes, duties, funding in a "UNIFORM" manner for the whole of the Commonwealth of Australia. However, they also recognised that "uniformity" of application of federal laws may not in certain instances be appropriate, considering the diversity of conditions from State to State, and hence held that the s101 Inter-State Commission should exist as a permanent body within the Commonwealth of Australia. The Inter-State Commission is not a executive body, nor a legislator and neither a judicial body but a body to ensure that laws that were enacted without political interferences would be applied to what a body of experts held was in the best interest of each state concerned and so also the Commonwealth of Australia. its decisions could be appealed on "error of law" to the High Court of Australia. I understand that since 1987 no Inter-State Commission existed, and prior that only for a few years since about 1917. This is a serious neglect of constitutional requirements and must not be permitted to continue. I trust that as Governor-General you will without undue delay ensure I am appointed, in view of various former (as well as the current) governments having omitted to have an Inter-State Commissioner appointed. The Australian electors are facing another election but with it a proposed amendment to s96 of the constitution regarding funding. This is of great concern to me, because the proposed referendum is based upon misconceptions. Albeit the Inter-State Commission is to deal with Trade and Commerce issues, the Framers of the Constitution made clear, that Parliament merely could legislative to provide it with further additional powers and the Inter-State Commission then could attend to these matters also. Therefore, if the Parliament desired a non political solution to health, education and other funding then it merely has to enact legislation for each subject matter the Commonwealth has legislative powers for as to be handed to the Inter-State Commission.
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ALGA (Australian Local Government Association) has seemingly made a issue that a Yes vote is required to ensure municipal/shire councils can obtain federal funding, as otherwise ratepayers will have to pay more. It is regrettable that this kind of miss information is promoted because in the end the ratepayer as a taxpayer still pays for it. As such there can be no issue that the ratepayer is paying more in the overall. Much is hyped about the "Road for Recovery" program and its funding depending on a Yes vote for the proposed referendum, where I view this falls under Trade and Commerce and as such within the powers of the Inter-State Commission. As such there is absolutely no need to have a referendum for this where already the Inter-State Commission is constitutionally empowered to deal with such matter. There is also a Commonwealth Grand Commission, which in my view should be under the InterState Commission, this as to avoid political interferences and while the Commonwealth Grand Commission may recommend certain funding, only the Inter-State Commission could allow nonuniform funding, and again subject to an appeal to the High Court of Australia on "error of law".
This is so that any party aggrieved as to the funding allocation can appeal to the High Court of Australia if there is deemed to be an "error in law". 5 In recent years there was this alleged political deal to fund Hobart Hospital $100 million dollars. In my view this was unconstitutional and deprived other hospitals of their needed funding. Again, the Parliament can provide legislation to provide the Inter-State Commission with the powers to deal with hospital funding and again we take the politics out of this kind of funding, and so also what is commonly known as "pork barrelling".
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.-We want a people's Constitution, not a lawyers' Constitution. END QUOTE HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution , END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE
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The following will also make clear that the Framers of the Constitution intended to have CIVIL RIGHTS and LIBERTIES principles embedded in the Constitution; 40
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him. END QUOTE Hansard 1-3-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
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I will refrain from quoting numerous other statements of the Framers of the Constitution of embedded principles (Which I have widely published them in the INSPECTOR-RIKATI series of books on certain constitutional and other legal issues), sufficient to state that regrettably we have too much political interferences that cause dissent amongst Australians and, I view, you as Governor-General being the Chief Executive Officer (as the Framers of the Constitution
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referred to) must take appropriate action to ensure that the constitutional requirements of an Inter-State Commission to exist is adhered to, as a matter of extreme urgency. It may flow from this that the proposed amendment of s96 of the constitution may be found ill conceived and may have to be reconsidered, where a large extend of the powers ought to be created actually already exist within the powers of the Inter-State Commission. Indeed, it may save $50 million, or more, on an ill-conceived referendum, which monies can be to better use in various more needed and appropriate area's. Some years ago, a previous government had problems with export where ships were awaiting loading outside Brisbane. Yet, the Commonwealth of Australia actually, within s100 of the constitution, has the legislative power to manage ports of the navigational river systems. all that was required was for the Parliament to have enacted for the Inter-State Commission to deal with these matters of navigation and the Inter-State Commission then could have directed appropriate funding for the development and management of any ports that required such funding. This as the Framers of the constitution in fact debated that ports fell within navigation of rivers and so was within the ambit of the Commonwealth of Australia to manage. Likewise, the use of the water of the river system, the Framers of the Constitution held that this fell within s100 but that any dispute was to be dealt with by the High Court of Australia. As they stated the Commonwealth of Australia decides. As such, where the Federal Government (executives) can only provide for "uniform" application of laws then by the Parliament placing this power with the Inter-State Commission, then the Inter-State Commission could deal with it as to the interest of each involved State as well as to the interest of the Commonwealth of Australia as a whole. In recent times we have the NDIS (National Disability Insurance Scheme) as to fund disabled persons and again only the Inter-State Commission (if the parliament had provided it with this power by way of legislation) could have authorised trails in certain areas as the Federal Government is prohibited to do so, obviously to avoid political interferences, etc. What ought to be clear is that the Framers of the Constitution wanted to avoid "pork barrelling" by any Federal Government while at the same time recognising that there may be situations where non-uniform funding may be appropriate, hence the creation of the Inter-State Commission. As the Framers of the Constitution made clear, the Inter-State Commission is not a executive body, and neither a judicial body, but is to make decision on basis of what experts may deem appropriate, subject to a appeal on "error of law" to the High Court of Australia, and therefore, I view, I am the right person to be an Inter-State Commissioner and can commence immediately in this function. As Mr Kevin Rudd is recently re-appointed as Prime Minister it would in my view be important that the Inter-State Commission, as constitutionally required, is in place, as this may also assist him (as well as the Leader of the Opposition Mr Tony Abbott as well as others) in determining any proposal for the current and/or future government of the day, as many misconceptions and/or misunderstandings may be no more. I trust that you in your role as Governor-General will recognise your laid up duties as part of the Federal Parliament (as representative of the Monarch) that appropriate legislation is enacted which prevents pork barrelling and ensures that the Inter-State Commission is existing at all times, as constitutionally required.
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QUOTE Commonwealth of Australia Constitution Act 1900 (UK) 1 Legislative power The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. 2 Governor-General A Governor-General appointed by the Queen shall be Her Majestys representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queens pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. END QUOTE (Bold and colour added by the writer). p47 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
I trust that for the above stated that you will avoid any unnecessary delay in appointing me as a Inter-State Commissioner, this in particular, as I am not aware any other person was nominated or has himself/herself nominated, and neither did the government contemplate doing so, because it never was so to say on their radar, and allows them to "pork barrelling" from Consolidated Revenue Funds", as some voters buying exercise, instead of acting as proper advisors to the Governor-General for the "general community". People are hurting and you can make the difference for them, because with the appointment you can show to the "general community" that as the CEO of the Commonwealth of Australia you will insist compliance with the legal principles embedded in the constitution, avoiding huge unnecessarily cost in the process. I am looking forwards to your very positive response/reply!
Note: O.W.B. (Order of the Wattle Blossom) in recognition:
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For upholding the civil rights, and political liberties of Australians, inherent in the Commonwealth Constitution. Awaiting your response, 20 G. H. Schorel-Hlavka O.W.B (Friends call me Gerrit)
MAY JUSTICE ALWAYS PREVAIL

( END QUOTE 2-7-2013 CORRESPONDENCE
Our name is our motto!)
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While the Governor-General may not have desired to commission me, nevertheless she ought to have ensured that the Inter-State Commission was in existence. Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
2 Governor-General 30
A Governor-General appointed by the Queen shall be Her Majestys representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queens pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
END QUOTE Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the Ntional Australasian Convention) QUOTE Mr. WISE (New South Wales).Her prerogative will be exercised by the Governor-General and the Ministers of the Commonwealth, just as truly as it is exercised by the Secretary of State in Downing-street. END QUOTE Hansard 10-3-1898 Constitution Convention Debates QUOTE Mr. SYMON.-A written Constitution is not exhaustive. We have implanted responsible government in this Constitution, but we have not said so in so many words. We must have some regard to the instrument we are framing, and we ought to look upon it as a Constitution with plenty of elasticity, under which all the constitutional usages will apply and be interpreted. If the Commandant was a kind of Jack-in-office, and wanted to run his army where he ought not to, you could dismiss him. If the Governor-General interfered unduly you would have to say respectfully-"You must not interfere in these matters; if you do, we shall repeal the Act, and there will be no army; you will be Commander-inChief merely nominally." I hope the words will not be inserted. END QUOTE
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While Governor-Generals have let us down time and time again we also were let down by the judiciary as well as the Parliamentarians.
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Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SOLOMON.Most of us, when we were candidates for election to the Federal Convention, placed great stress upon it as affording a means of bringing justice within easy reach of the poor man. END QUOTE Hansard 20-4-1897 Constitution Convention Debates QUOTE Mr. HIGGINS: I think it is advisable that private people should not be put to the expense of having important questions of constitutional law decided out of their own pockets. END QUOTE
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Hence, I view that it would be appropriate for Your Majesty to authorise a ROYAL COMISSION which will investigate these and numerous other matters. Also, that where appropriate the Privy Council deals with matters. This as many matters are to be decided upon judicial grounds.
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Jurisdiction (Black's Law Dictionary): It is defined as: The legal right by which judges exercise their authority. It is the authority by which courts and judicial officers take cognizance of and decide cases. It is the authority, capacity, power or right to act.
25 What we have however is that our legal processes are corrupted and judges making statements that are not just absurd but one may ask if the judge concerned has lost his sanity; As a "constitutionalist" I find it laughable how judges, despite their extensive legal training, can come up with such utter and sheer nonsense such as McHugh J did with his statement ;
index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635 QUOTE McHUGH J: I understand that and persons who have not had full legal training often think of Magna Carta and the Bill of Rights as fundamental documents which control governments, but they do not. END QUOTE index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635 QUOTE But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to. END QUOTE
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As no such constitutional system operates that would allow the parliament to enact such laws. And there I have to come back upon the other quotation; Would this really be acceptable? What if he had stated:
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But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every Aboriginal killed if it wanted to. But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every police officer killed if it wanted to. But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every judge killed if it wanted to.
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But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every Minister killed if it wanted to. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p49
Lets us be clear about it Parliament has no such powers! The fact that nevertheless a judge of the High Court of Australia pronounced it has such powers should be of extreme concern and I view question the competence of the High Court of Australia as to understand and comprehend the true meaning and application of the constitution. The previous above quotations ought to make clear that this kind of statements were not only totally irresponsible but dangerous for any judge to make. Lets now consider what the High Court of Australia stated in;
Transcript of High Court Appeal Essenberg v The Queen B55/1999 (22 June 2000) IN THE HIGH COURT OF AUSTRALIA
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Essenberg v The Queen B55/1999 (22 June 2000) McHUGH J: But is not the problem you face that the Magna Carta and the Bill of Rights of 1688 are not documents binding on Australian legislatures in the way the Constitution is binding on those legislatures? Any legislature acting within the powers allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta which, I suppose, is really the heart of your argument, it is really more a statement of political ideals. They are not constitutional documents in the sense that the Australian Constitution and the United States Constitution are.
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Well, the US Supreme Court has (since the publication of my book on 30-9-2003) clearly ruled that the Magna Charta is applicable to the US constitution. . Since then the US Supreme Court handed down its decision that the Magna Charta does apply to the US Constitution. There is therefore no legal reason why it were not to apply to the Commonwealth of Australia Constitution Act 1900 (UK) whereas it still applies to the US constitution. Moreover, some about 3 months before the US Supreme Court made it decision I wrote to Mr John Howard that in my view the Magna Charta did apply to the US constitution. And the US Supreme Court clearly underlined what I had stated to Mr John Howard. But nevertheless in the meantime Mr David Hicks was caused to plead GUILTY prior to the US Supreme Court handing down its decision, just so as to regain his freedom where the Australian government refused to pursue his constitutional and other legal rights appropriately. In my view, albeit I am not qualified in medical matters, Mr John Howard having been in New York at the time of the September 2011 attacks may have had a mental issue relating to this and as result conducted himself in a manner to betray his constitutional and other legal obligations and to persist in every way to invade Iraq no matter what. I do however not view that this can be deemed an excuse for him and others to invade Iraq, as to do so would allow any criminal to excuse himself/herself of hideous crimes committed so society. Even the former Prime Minister Malcolm Fraser now has joined so to say the chorus that there should be a Royal commission into the armed invasion into Iraq, something I had previously also on numerous occasions pursued including my December 2007 request to the then Prime minister Kevin Rudd and a repeated request to the then Prime minister Julia Gillard but both failed to respond to the same, as well as during numerous 2011 Sydney Radio programs, in which I participated. It ought to be very clear that any idea that the Parliament can legislate to have every blueeyed baby to be killed if it wanted to is sheer and utter nonsense and I view placing the High Court of Australia in disrepute.
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This is the kind of judges we have in the Commonwealth of Australia.

.English usage but lets be real about it if one has this absurd perception that Parliament can legislate to kill every blue-eyed baby then I view I rather have common sense and know what reality is then to have this kind of nonsense falling from my lips. 5 We had this utter and sheer nonsense in the Sue v Hill case where the High Court of Australia somehow pretended that Australians now no longer are subjects of the British Crown and they fabricated a new nationality that of Australian Citizenship even so no such constitutional powers exist for this.
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QUOTE
http://www.fwc.gov.au/index.cfm?pagename=regorgslist
QUOTE
Notes about the list below:
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Clicking the link in the OrgCode column takes you to a site with links to copies of documents lodged by that organisation with the Fair Work Commission under the Fair Work (Registered Organisations) Act 2009 . These include documents in relation to elections, financial reporting, lists of office holders and rule alterations, and a copy of current rules of the organisation. It does not contain documents lodged under the Fair Work Act 2009. The Type column indicates whether the organisation is an employer organisation (E) or a union (U). Documents required to be lodged under the Fair Work (Registered Organisations) Act 2009 and applications for right of entry permits under the Fair Work Act 2009 and the Work Health and Safety Act 2011 (Cth) can be lodged via email to: orgs@fwc.gov.au Current at: 14 February 2014
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END QUOTE
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Below is a registration of a NSW entity, which I view is a State internal matter, this as Local Government and Shire Association related to exercise of State delegated powers and as such beyond the scope of the Commonwealth. http://www.fwc.gov.au/index.cfm?pagename=regorgslist
QUOTE
Org Code Abbreviation 142N LGSANSW
Name Local Government and Shires Association of New South Wales
Type E
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END QUOTE http://www.e-airc.gov.au/142N/ QUOTE
LGSANSW
Local Government and Shires Association of New South Wales
Home - Local Government and Shires Association of NSW Rules Elections
On 1 March 2013 the Local Government Asociation of New South Wales amalgamated with the Shires Association of New South Wales (see PR533863)
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Financial Reports Annual Returns List of Organisations
If you have any queries: Phone: (02) 8374 6666
Last update: Friday, March 1, 2013 at 11:23:51 AM Copyright 2014 Commonwealth of Australia
END QUOTE
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In my view we have a danger that the Commonwealth has infiltrated State internal jurisdiction and slowly more and more encroaches upon this. With the introduction of the GST it basically has used this as a tool demand not only from Commonwealth entities but also State entities to give in to be registered under Commonwealth law, which I view is a form of blackmail. And as it did the same with the Courts we now have that the Commonwealth can ignore the judicial independence and manipulate matters as it may from time to time desire. That is a very dangerous situation to allow. Also using s96 for funding of whatever, not at all intended as such by the Framers of the Constitution (who rejected it) or the Premiers conference this now allows the Commonwealth to use the Consolidated Revenue Funds as a form of blackmail to gain a dictatorship onto State matters.
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Below some quotations where citizens suspect illegal and fraudulent conduct. 20 Whilst various Royal Commissions have been held into industrial relations, etc, the question is if they were constitutionally valid. After all, Federal Parliament and/or State Parliaments could have passed any Bill it likes, it could have been given by the Governor-General Royal Assent but that doesnt make it constitutionally valid, to be used for whatever to whatever extent politicians may think upon. However, in my view the commissioner conducting this Royal Commission (into trade union governance and corruption) may not I view be a fit and proper person to conduct this Royal Commission, this as I view that this commissioner as a former judge of the High Court of Australia having demonstrated not to be impartial, and neither seemed to be competent in interpreting the true meaning and application of the constitution as per legal principles embedded in the constitution. And failing to correct matters or to place on record what ought to have been done by an impartial judge. Hence, I will below set out some matters relied upon.
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QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.) That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to my mind. In my judgment that case was wrongly decided, and should be overruled. END QUOTE
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HANSARD 25-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SYMON.22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p52
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When we have done this it follows that as there is an element of policy, the existence of which no one can deny, it will be even more necessary than in the case of the Federal High Court-which is not to deal with matters of policy, or matters tainted with policy, to use the expression of another speaker-that the tribunal which we are creating should be above the breath of political intrigue. To secure this, I think, some provision should be inserted similar to the provisions which we have inserted in regard to the Judges of the High Court. Whatever may have been the case as the Bill left us after the Adelaide session, it seems to be imperative now, to give effect to what has already been done, that we should introduce into the Constitution provisions binding the Federal Parliament to create an Inter-State Commission, and placing the Inter-State Commission, when created, on a level which will raise it above the possibility of the suspicion that its judgments or actions have been in any way influenced by political considerations. END QUOTE
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I in this document have gone into some details about the High Court of Australia Sue v Hill decision and why it couldnt be accepted as a High Court of Australia exercising original jurisdiction but beyond it, as already indicated above the High Court of Australia cannot exceeds its own judicial powers to interfere with the standing of the British Crown. In my submission Government Department must not act nor seen to be acting with political bias as they are to serve the general community irrespective which political party/parties may be in power. Hence, as referred to below political donations by a Government Department must be deemed unconstitutional, as set out below, such as using AusAID as an example, but it may be questioned how many other Departments are rorting the system, to provide political donations to the major political parties under the disguise of being for annual services. Hence, I view, this conduct is within the Terms of References provided for the Royal Commission.
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Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start page 2042] as he pointed out, if there be embedded in the Constitution a direct enactment that no proposed laws for taxation including more than the one subject of taxation, and no proposed Appropriation Bill going outside the ordinary services of the year, can be legally dealt with, both the Speaker of the House of Representatives and the President of the Senate would not only be authorized, but would be imperatively required, in the discharge of their duty, to rule such a measure out of order at any stage of its existence. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE
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Mr. ISAACS.-I should hope that the expenditure caused by a bush fire would not be part of an annual service. Mr. MCMILLAN.-Would it not into the Appropriation Bill? Mr. ISAACS.-Yes; but not as an annual service. Mr. MCMILLAN.-The annual services of the Government are those which we distinguish from special grants and from loan services. The difficulty is that we have got rid of the phraseology to which we are accustomed, and instead of the words Appropriation Bill, we are using the word law. Mr. ISAACS.-A difficulty arises in connexion with the honorable members proposal to place expenditure incurred for bush fires in the ordinary, it would not be annual, and it would not be a service.
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END QUOTE http://en.wikipedia.org/wiki/AusAID QUOTE
On 18 December 2008, the William J. Clinton Foundation released a list of all contributors. It included AusAID, which gave between US$1025 million.[5] 55
END QUOTE p53 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
http://www.bendigoadvertiser.com.au/story/2090881/ausaid-funds-misused/?cs=3380 QUOTE AusAID funds misused By Andrew Moyle, Bagshot Feb. 17, 2014, 2 a.m THE Australian Electoral Commission has released its reports showing who received funding and from where for the last federal election. I must say that it beggars belief.
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The Australian Agency for International Development is a major donor to the Labor Party, Liberal Party, and the Greens. Who is this Agency? It is better known as AusAID. This government agency was established to promote democracy and party politics around the world. The Federal Government allocated over $300 million of our taxes last year to AusAid in which nearly $200 million was spent on employee benefits.
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Prior to the last federal election AusAid donated $2.2 Million dollars to the Labor Party, $1.1 Million to the Liberal Party, and $220,000 to the Greens. If you are a minor party or an independent you got zilch. Here we have the government allocating funds in the budget only to have it returned to their partys to fund their election campaigns.
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Our taxes are being used to ensure the major partys get re -elected. This is incredibly immoral, unethical, and I believe, illegal, yet not a word from the Electoral Commission about this corrupt practice. The agency is supposed to promote free and fair elections in other parts of the world but sees fit to interfere with free and fair elections in Australia. Where is our media on this issue? Not a peep from any of them. I demand that my taxes are returned to consolidated revenue. I demand an explanation from my local member. And I demand an investigation into AusAid. Those in AusAID and those in their respective political parties that accepted this funding should be charged with conspiracy to defraud the Australian people. I would also like to see a statement from the Australian Electoral Commission explaining how they can ignore this corrupt practice.
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What's your opinion? END QUOTE
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One has to question how much was given away unconstitutionally without a specific Appropriation Bill having been passed for this, where it was not part of ordinary annual service of the Department. (See below for further set out) In my submission any backdoor donation by AusAID and other Government Departments to any political party must be held to be outside the ordinary annual service, and held to have been unconstitutional, unless specific Appropriation Bills were provided for, and this before any such donations were made, that AusAID could make such donations. Failing this I submit that members of the Public Service Union who participated in this unlawful payment to political parties ought to be deemed to be included in the Terms of References and likewise dealt with as any other union member, etc. And those affected being the leaders of the political parties being financial beneficiaries of this, as it may have assisted in their election also ought to be held legally accountable for this. As I have set out below the corruption involves I view political parties and organisations such as AusAID, This, as I view the Constitution doesnt allow for a Government Department to support
a political party as it is not part of annual services of a Department and hence it should be investigated if those in AusAID providing such donations are part of a particular union, etc. 5
http://en.wikipedia.org/wiki/AusAID QUOTE AusAID From Wikipedia, the free encyclopedia Jump to: navigation, search AusAID Australian Agency for International Development
Agency overview
Preceding agencies
Australian Development Assistance Agency (ADAA) Australian Development Assistance Bureau (ADAB) Australian International Development Assistance Bureau (AIDAB)
Headquarters
Canberra, ACT, Australia
Employees
1,652 (at April 2013)[1]
Minister responsible
Hon. Julie Bishop, Minister for Foreign Affairs and Trade
Agency executive
Ewan McDonald, Acting Director-General (Until 31 October 2013)
Website
www.ausaid.gov.au
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AusAID (the Australian Agency for International Development) was the Australian Government agency responsible for managing Australia's overseas aid program until 31 October 2013, when it ceased to be an executive agency and was integrated into the Department of Foreign Affairs and Trade. The objective of the aid program is to assist developing countries to reduce poverty and achieve sustainable development, in line with Australia's national interest.[2] AusAID provided advice and support to the Minister for Foreign Affairs, presently the Hon. Julie Bishop MP on development policy, and planned and coordinated poverty reduction activities in partnership with developing countries. AusAID was an independent agency under the Financial Management and Accountability Act, part of the Department of Foreign Affairs and Trade (DFAT) for the purposes of the Public Service Act which covers human resources and non-financial accountability. AusAID's head office was in Canberra. AusAID had representatives in 25 Australian diplomatic missions overseas.[3] 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p55
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Contents [hide] 1 History 2 Operation 3 Projects 4 Emergencies, humanitarian aid and mine action o o o 4.1 Disaster preparedness 4.2 Humanitarian Action Policy 4.3 Food aid 4.4 Refugees 4.5 Rehabilitation and reconstruction 4.6 Mine action
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o o o
5 Controversies and criticisms 6 See also 7 References 8 External links History[edit] This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (June 2012)
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The agency saw a variety of names and formats. It was founded in 1974 under the Whitlam Labor government as the Australian Development Assistance Agency (ADAA) to fulfill a role that had previously been the responsibility of several departments. It was renamed the Australian Development Assistance Bureau (ADAB) and brought under the Foreign Affairs and Trade portfolio in 1976 under the Fraser Liberal government. It became the Australian International Development Assistance Bureau (AIDAB) under the Hawke government in 1987, before being given its current name by the Keating government in 1995. It also saw repeated cuts to aid contributions during its lifetime, as the level of 0.47% of gross domestic product during the Whitlam years was slashed to 0.33% under the Hawke and Keating governments, and has at times been even lower under the Howard government. Cuts have not been limited to aid levels either; in mid-1996, the Howard government slashed the agency's running costs budget by 24% amidst a round of cost-cutting measures. In 2005 John Howard committed Australia to double Australian aid to about $4 billion a year by 2010. At the time of the 2007-08 budget, the Government announced total aid of $3.2 billion and an expectation "to continue increasing development assistance, to $3.5 billion in 2008-09, $3.8 billion in 2009-10 and $4.3 billion in 2010-11."[4] On 18 December 2008, the William J. Clinton Foundation released a list of all contributors. It included AusAID, which gave between US$1025 million.[5] In September 2013 the incoming Abbott Government announced it would merge AusAID into DFAT to align aid with diplomacy, causing the AusAID's Director-General Peter Baxter to resign from that position (taking extended leave) and Ewan McDonald taking over as Acting Director.[6] On 1 November 2013 the agency ceased to be an executive agency.[7] Operation[edit] Prior to 30 June 2013, the agency reported to the Minister for Foreign Affairs. Australia's first Minister for International Development was appointed on 1 July 2013. The current Director General is Peter Baxter. [8] With the new Abbott government in power, the Minister for the DFAT is also the Minister for International Development.[9] 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p56
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The Australian government is committed to the implementation of the Millennium Development Goals[10] agreed targets set by the world's nations to reduce poverty by 2016-and incorporates the principles of aid effectiveness into all its activities.
The 200506 Annual Report recorded 18 staff in the senior executive service out of a total of 516 public servant staff. 68 AusAID public servants are serving long-term postings outside Australia. These figures do not include locally employed staff outside Australia. Total Australian Official Development Assistance in 2005-06 was A$2,605 million, not all of it administered by AusAID. AusAID administered $1,587 million of expenses in 2005-06 and also had departmental expenses (i.e. under its direct control) of A$78 million.
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AusAID's key manual is AusGuide - A Guide to Program Management, which is available on the AusAID website. However, changes in the approach to aid programming that crystallised in the government's 2006 White Paper have not yet been fully incorporated into a revised version of AusGuide. Many of the changes can be summarised as a move from traditional stand-alone projects managed by contractors to more sustainable, long-term programmes of assistance with untied procurement. Over most of AusAID's existence, tenders providing services associated with aid programs were generally limited to firms from Australia or New Zealand, or firms doing substantial business in those countries; only in 2005 did the agency liberalise its guidelines to allow firms from the recipient country to apply for some tenders. The agency was considerably more liberal with construction contracts, allowing bidding from any company worldwide, though this has the effect of shutting out many potential bidders from recipient countries. In 2002, as part of an international initiative, AusAID untied aid to Least Developed Countries. Since the White Paper in 2006, all AusAID procurement has been untied (i.e. open to international firms) except for the Australia Indonesia Partnership for Reconstruction and Development (AIPRD). There have not yet been significant numbers of contracts awarded to international firms. Projects[edit] Australia's aid program leads the way in the fight against preventable disease in our region. Australia's aid effort has wiped out polio from the Pacific. Australia has also funded measles and polio immunisations for more than 1.5 million children in Papua New Guinea. AusAID works to improve the quality of basics services. Water supply and sanitation programs are providing fresh water for nearly 500,000 people in Tanzania, South Africa, Mozambique and Zimbabwe. AusAID funds projects such as the M Thun Bridge in Vietnam's Mekong Delta region. The bridge now benefits more than three million people living below the poverty line. Over the past 40 years: average life expectancy in developing countries has increased by 20 years adult illiteracy has almost halved maternal mortality has decreased by 50 per cent.
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Most importantly, despite a rapidly growing world population, the number of people living in poverty has fallen by 200 million since 1980. Australian aid has contributed to these achievements. By promoting sustainable development, Australia continues to improve the lives of our neighbours as well as make a major contribution to growth and stability in our region.[11]
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Emergencies, humanitarian aid and mine action[edit] Australia helps reduce the adverse impacts of conflict, natural and other disasters on vulnerable populations. Developing countries are highly vulnerable to a range of natural hazards, including tropical cyclones, floods, landslides, droughts, volcanic eruptions, earthquakes and tsunamis.
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The Australian Government stands ready to help countries in times of natural disasters. Assistance may take the form of relief supplies, medical teams, law and order personnel, transport and communication. Australia also makes contributions to development and humanitarian agencies, such as Australian Red Cross, which have extensive experience in relief operations. For example, Australia provided $60 million to Australian and international 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p57
organisations for emergency relief in the aftermath of the Indian Ocean Tsunami, which affected parts of Indonesia, Thailand, Sri Lanka, India, the Maldives and East Africa.[12] Disaster preparedness[edit]
To ensure effective responses to conflict and natural disasters, Australia works in cooperation with international and domestic partners to improve disaster preparedness. Australia is also committed to reducing the risk of natural disasters before they occur.[13] Australia always tries to deliver emergency assistance rapidly to those most in need. AusAID is active from the moment it becomes aware of a disaster. AusAID immediately begins assessing the situation and gathering information to ensure that help is provided rapidly to those in need.
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Before Australia can take direct action in an emergency however, the affected country must make an official request for assistance. To take uninvited action would breach international protocols and show a lack of respect for the affected country's sovereignty. On receiving a request for help AusAID's approach will depend on the circumstances of the emergency, including the type of help asked for and the specific response offered by Australia. AusAID consults with a range of people who might include the Australian High Commission or Embassy in the affected country, the United Nations and Emergency Management Australia. AusAID may also consult with representatives from France and New Zealand, with whom they jointly respond to many of the disasters that occur in the Pacific. AusAID also seeks the approval of the Australian Minister for Foreign Affairs for funds if the situation warrants help from other government departments such as the Australian Defence Force. At the same time AusAID consults with the Ministers of other Australian Government departments for the approval of their involvement. AusAID may also ask for advice from non-government organisations (NGOs) on their ability to help and may activate its Periodic Funding Agreements for Disaster Risk Management. These agreements with six nongovernment organisations (Oxfam Australia, Australian Red Cross, CARE Australia, World Vision Australia, Caritas and Austcare)[14] allow the Australian Government to respond through organisations with the capacity to provide effective emergency relief. Humanitarian Action Policy[edit] AusAID is increasingly integrating its humanitarian action and development activities to ensure Australian responses are coordinated. The links between development and humanitarian action are clear. The long-term effects of disasters and crises undermine growth prospects and hard-won development gains. Where capacity to deliver services is low or insecurity prevails, vulnerability to hazards and conflict increases and poverty is exacerbated. Humanitarian action in itself cannot reduce poverty, nor can it prevent or reduce conflict. AusAID's Humanitarian Action Policy [15] deals with the symptoms of conflict and complements the Peace, Conflict and Development Policy [16] that specifically addresses conflict prevention, conflict management and reduction, peace-building and postconflict recovery. The measures outlined in these policies, help counteract social instability, reduce vulnerabilities and strengthen local capacities. Food aid[edit] Australia provides approximately 150,000 tonnes of food aid every year about $65 millionto people in crisis in countries such as Bangladesh, Indonesia, Sri Lanka, Sudan and Chad. At least half of this tonnage comes from Australian farmers and suppliers.[17]
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Refugees[edit] Australia provides funding to the United Nations High Commissioner for Refugees (UNHCR) and other key humanitarian agencies to provide protection and assistance to refugees and internally displaced people (IDPs). Australia also supports programs that promote finding durable solutions to refugee and IDP crises and the reintegration of returnees, particularly in the Asia-Pacific region.
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Rehabilitation and reconstruction[edit] In many cases long term relief is required after an emergency. The Australian Government therefore selectively supports rehabilitation and reconstruction activities in areas that have been struck by disaster or conflict. To reduce the likelihood of a similar disaster happening again, recovery and reconstruction efforts are underpinned by the build back better principle. This means taking steps to ensure that disaster affected communities will be more resilient to future natural hazard events. Mine action[edit] Landmines and other explosive remnants of war pose serious obstacles to sustainable development in many of the world's poorest countries. They can be found anywhere and often deprive affected populations of basic needs such as access to water and health facilities, use of fertile agricultural land, and communication. Australia is a significant contributor to international mine action, with a focus on the Asia-Pacific region. The Australian aid program provides support to mine clearance, mine risk education, victim assistance and advocacy activities, in collaboration with a range of international, regional and local actors. [18] Controversies and criticisms[edit] AusAID's most vocal critic is the left-wing NGO AID/WATCH. AID/WATCH argue that "The flow of aid can be constructive particularly in programs of emergency relief and health. However, development projects can have detrimental effects on local communities when the donor country imposes decisions without the appropriate assessment of social, cultural and environmental needs." Specific criticisms of AusAID include allegations that it services Australian commercial interests through its procurement policies; promotes particular economic and trade policies that AID/WATCH regards as detrimental to the poor; lacks transparency; and has seen aid been misused to support foreign policy, such as promotion of the so-called Pacific Solution for processing people seeking asylum in Australia. AID/WATCH critiques of AusAID's procurement policy have not been updated to reflect the untying of most aid procurement from April 2006.
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AusAID has also been criticised from the right-wing, particularly the Centre for Independent Studies. Helen Hughes of the CIS has argued that "aid has failed PNG and the Pacific" a criticism of the broad policy and approach of aid rather than the specific administration of AusAID. There has been media criticism leveled at AusAID over the selection, equality, effectiveness and transparency of its contracts with consultants and advisors. One article claimed consultants are being paid more than Australias prime minister.[19] In February 2012, based on information provided by the Israel Law Center, World Vision Australia (WV) allegedly provided "financial aid to a Gaza-based terrorist group," the Union of Agricultural Work Committees (UAWC), which they also alleged is a "front for terror group the Popular Front for the Liberation of Palestine." WV had "suspended its dealings" with UAWC until the outcome of the investigation. [20][21] WV resumed working with UAWC after AusAID and World Vision found the allegations were unfounded. According to The Australian newspaper, 'AusAID has written to Shurat HaDin to confirm that a detailed investigation has been conducted into the claims and no evidence has been found to substantiate them'. [22] However, an investigation by the Jerusalem Post "revealed that the PLFPs Arabic language website includes detailed reports on the UAWCs work." [23] See also[edit] ASEAN Australia Development Cooperation Program Australia Bali Memorial Eye Centre Wangdu (activist) Developmental Leadership Program References[edit] Jump up ^ Australian Public Service Commission (2 December 2013), State of the Service Report: State of the Service Series 2012-13, Australian Public Service Commission, p. 253, archived from the original on 6 December 2013 Jump up ^ About AusAID, retrieved 6 September 2011 p59
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Jump up ^ "About AusAID: Where we work". 5 January 2010. Jump up ^ http://www.budget.gov.au/2007-08/ministerial/html/ausaid-01.htm Jump up ^ Contributor Information to the William J. Clinton Foundation Jump up ^ http://www.abc.net.au/news/2013-09-18/an-ausaid-shakeup/4965892 Jump up ^ http://devpolicy.org/felled-before-forty-the-once-and-future-ausaid/ Jump up ^ Organisational Structure, retrieved 7 March 2010 Jump up ^ http://foreignminister.gov.au/releases/2013/jb_mr_130918.html Jump up ^ The Millennium Development Goals: the fight against global poverty and inequality , archived from the original on 25 March 2010, retrieved 24 February 2010 Jump up ^ About Australia's aid program, archived from the original on 23 March 2010, retrieved 31 March 2010 Jump up ^ Emergencies, humanitarian aid and mine action, archived from the original on 11 January 2010, retrieved 18 December 2009 Jump up ^ Investing in a Safer Future: A Disaster Risk Reduction policy for the Australian aid program, archived from the original on 18 June 2009, retrieved June 2009 Jump up ^ Responding to emergencies, archived from the original on 2010-01-13, retrieved 1 July 2013 Jump up ^ Humanitarian Action Policy, retrieved January 2005 Jump up ^ Peace Conflict and Development Policy, retrieved June 2002 Jump up ^ Food Aid, archived from the original on 11 January 2010, retrieved 18 December 2009 Jump up ^ Mine Action Strategy for the Australian aid program, retrieved 20 November 2009 Jump up ^ "Aid workers earning more than Rudd", The Australian, 18 February 2010 Jump up ^ Australian groups accused of aiding PFLP-linked group Jump up ^ World Vision to investigate terror link Jump up ^ "Vision back as AusAID dismisses 'terror' link". The Australian. 2 March 2012. Jump up ^ Australian NGO resumes support of Gaza group External links[edit] Official website The story of how an AusAID project saved Cambodia from famine and made it a net exporter of rice. Puckridge, D. 2004. The Burning of the Rice. Sid Harta Publishers, Victoria. ISBN 1-877059-73-0. pp326. http://sidharta.com/books/index.jsp?uid=67 Aid/Watch Centre for Independent Studies
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END QUOPTE QUOT4E attachment (Email Saturday, February 15, 2014 9:42 AM)Re AusAID
The Australian Electoral Commission has released its reports showing who received funding and from where for the last federal election. I must say that it beggars belief. The Australian Agency for International Development is a major donor to the Labor Party,
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Liberal Party, and the Greens. Who is this Agency? It is better known as AusAID. This government agency was established to promote democracy and party politics around the world. The Federal Government allocated over $300 million of our taxes last year to AusAid in which nearly $200 million was spent on employee benefits. Prior to the last federal election AusAid donated $2.2 Million dollars to the Labor Party, $1.1 Million to the Liberal Party, and $220,000 to the Greens. If you are a minor party or an independent you got zilch. Here we have the Government allocating funds in the budget only to have it returned to their partys to fund their election campaigns. Our taxes are being used to ensure the major partys get re-elected. This is incredibly immoral, unethical, and I believe, illegal, yet not a word from the Electoral Commission about this corrupt practice. The agency is supposed to promote free and fair elections in other parts of the world but sees fit to interfere with free and fair elections in Australia. Where is our media on this issue? Not a peep from any of them. I demand that my taxes are returned to consolidated revenue. I demand an explanation from my local member. And I demand an investigation into AusAid. Those in AusAID and those in their respective political partys that accepted this funding should be charged with conspiracy to defraud the Australian people. I would also like to see a statement from the Australian Electoral Commission explaining how they can ignore this corrupt practice.
END QUOT4E attachment (Email Saturday, February 15, 2014 9:42 AM)Re AusAID http://kangaroocourtofaustralia.com/2014/02/16/australian-trade-unions-the-royal-commission-we-had-to-have/
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Australian trade unions. The Royal Commission we had to have 25 The Royal Commission into trade union corruption announced on Monday by the federal government is a real game changer on many fronts and maybe many more depending on how the Royal Commission performs. For starters it is the first Royal Commission that has been driven by the online community, although I am sure that no one in the MSM (Mainstream media) will tell you that. While the paperwork does not give a time frame, it has been reported that the RC is scheduled to last for 12 months and if it sticks to that time-table it will be one wild ride trying to cram all the corruption into those 12 months of the commission. I will just address a few issues the Royal Commission raises in this post and the rest as the RC unfolds. Royal Commission details 35 The Royal Commission was announced on Monday the 10th February 2014 at a joint press conference with Prime Minister Tony Abbott MP, Senator Eric Abetz, Minister for Employment and Senator George Brandis QC, Attorney-General. The key elements of the Royal Commission media release said: 40 It will inquire into the activities relating to slush funds and other similar funds and entities established by, or related to, the affairs of these organisations. This will not be an inquiry into trade unionism or the day to day activities of honest trade union officials. Instead, it will address increasing concern arising from a wide range of revelations and allegations involving officials of unions establishing and benefiting from funds which have been set up for purposes which are often unknown and frequently unrelated to the needs of their members.
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We dont want honest workers to be ripped off by dishonest union bosses. Before the election the Coalition promised to establish a judicial inquiry into the Australian Workers Union slush fund scandal. This announcement honours that promise. 5 A number of similar allegations have also been raised in relation to many other funds established by officials of other unions. These strongly indicate there are systemic issues involving secret funds, commissions and kickbacks that need to be considered. In addition, recent allegations of corrupt behaviour, unlawful kickbacks and standover tactics in the construction industry have made it clear that there is a need for serious scrutiny of allegedly corrupt conduct, wherever it may occur. 10 As a result, the terms of reference are not limited to any particular organisations, particular allegations or particular industries. The inquiry will be able to go wherever the evidence leads it. This means that union officials, employers and any other persons who are involved in such conduct will be subject to equal scrutiny. (Click here to read the full media release) The Terms of reference (Click here to read), which is what the Royal Commission will do, are wide and broad but a key element that caught my attention is section 2 which says: 2. Without limiting the matters in paragraph 1, alleged activities relating to the establishment or operation of any such entities as they relate to the various registered branches of the following employee associations: 1. the Australian Workers Union; 20 2. the Construction Forestry Mining and Energy Union; 3. the Electrical Trades Union; 4. the Health Services Union; 5. the Transport Workers Union; and 25 6. any other person, association or organisation in which in respect of which credible allegations of involvement in such activities are made. This site has published many posts in the past as far as the Australian Workers Union is concerned and we knew that was coming, but what made my eyes light up was the Transport Workers Union which is run by Tony Sheldon. Regular readers will know that Mr Sheldon threatened this site with defamation in May last year (click here to read the lawyers letter and post) because of two previous posts that I had written outing him for setting up a slush fund to pay Craig Thomsons legal bills. (Click here and here to read the two posts) That story alone could and should get a run at the Royal Commission. I think it is time for KCA to polish the boots and iron the shirt, Royal Commission here we come!
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Julia Gillard and Transport Workers Union (TWU) boss Tony Sheldon who is a well-known fraudster, thief and money launderer. He has previously threatened this site with defamation via a letter from lawyers Maurice Blackburn.
Australian Labor Party is owned by the Unions They say a picture tells a thousand words. Well look at the picture above and the one below and it is not hard to work out who runs the Labor Party. I know prior to the last election is was something like 70% of the federal politicians had a union background and that was not by accident. The unions control the numbers and who gets into parliament for the Labor Party.
Julia Gillard when she was Prime Minister with Australian Workers Union (AWU) boys Paul Howes and Bill Ludwig. Mr Ludwig stole $45,000 from the AWU only a couple of years ago to pay for his own personal legal bills. 10 Is the RC a political witch hunt? Tony Abbott had no option but to have an inquiry into the AWU slush fund theft at the very least as that was an election promise as per the announcement above where it says Before the election the Coalition promised to establish a judicial inquiry into the Australian Workers Union slush fund scandal. This announcement honours that promise. I have also previously said if Tony Abbott did not have an inquiry as promised then he owned the fraud at the AWU and was just as guilty for covering it up which plenty of other voters would have thought the same. It was just a matter of what shape the inquiry would take which was made easier given the latest union criminal allegations in the media. The Commissioner Former High Court judge Dyson Heydon 20 I referenced Dyson Heydon in a post I published May last year titled High Court of Australia The biggest poker game in town (Click here to read the post) Dyson Heydon (2003-2013) has been quoted as saying: Retired High Court judge Dyson Heydon has fired a parting salvo at his fellow judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence. In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled The enemy within, published in the Law Quarterly Review. 30 And: In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment a closure by members of the court of their minds too early, before word of oral argument has been uttered, Mr Heydon wrote (Click here to read more) Other than that I do not know a lot about him but the above gives you some idea of what Heydon is like and how he thinks. I have no doubt were about to get a true and accurate picture of the man with the Royal Commission which the whole of the Australian public will be able to see and judge for themselves.
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Why we had to have the Royal Commission and the game changers Australia needs a strong Labor Party as we in effect have a two-party system and they are one of those parties. The problem being is that the internal corruption in the Labor Party had become so rife that they had become unelectable and not an alternative government. Australia needs a strong opposition no matter who it is to keep the government of the day honest. The Royal Commission is a real game changer for the media. The RC originally was only as a proposed inquiry into the AWU slush fund fraud which started being reported again online back in August 2011 on this site and was initially driven solely online. The MSM did eventually do a lot of the heaving lifting in reporting the AWU fraud, but so has the online community. (Click here for the historical posts) Without the online reporting into the AWU fraud there would highly unlikely be a Royal Commission as I doubt the recent revelations in the MSM regarding corruption at other unions would have led to a RC by itself. So people involved in online social media reporting and news (Blogs, Facebook and Twitter etc.) can take some credit for the Royal Commission. Social media will also play a large roll in reporting the Royal Commission and probably influencing it as much if not more so than the MSM. I have already written extensively about union corruption and I expect that I will be loaded up with new material for posts from the Royal Commission. I also expect to make a submission or two to the Royal Commission and hopefully help make a change for the better. I see one of my main roles as trying to read through all the lies told before, during and after the Royal Commission and report it back to you in the posts on this site. Please use the Twitter, Facebook, email etc. buttons below and help promote this post. This site is independent and reliant on donations to keep publishing. If you would like to support the continuance and growth of this site it would be greatly appreciated if you make a donation. Click on the below button to donate via PayPal or go to the donations page for other donation options (Click here to go to the Donations page)
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If you would like to buy a t-shirt or coffee mug visit my online shop (Click here to visit the shop) 30 And make sure you follow this site by email which is at the top right of this page and about once a week you will get an email when there is a new post/story on this site. Thank you for your support.
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Is Attorney-General George Brandis the biggest lying rodent in government given his recent fraud and theft? In "Senator George Brandis"
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Prime Minister Julia Gillard bribed ACTU Secretary Dave Oliver to keep his support In "Judge Suzanne Jones" Ian Cambridge and Bill Ludwig covered up the 1996 AWU fraud case which helped Julia Gillard In "Commissioner Ian Cambridge"
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Tags: Australian Workers Union, AWU, Corrupt Unions, Royal Commission, Transport Workers Union, TWU Bill Shorten and the Victoria Police rape investigation. Do we have a right to know?
2 Comments on Australian trade unions. The Royal Commission we had to have
1. 20 kurt flahavin February 16, 2014 at 1:07 am # This Royal Commission into the unions will definitely be one of the best Royal Commissions ever in this countrys history. This retired High Court judge Dyson Heydon I suspect will make monsterous findings out of this Royal Commission. The findings will be enough to recommend criminal charges against a number to many people. I think Gillard, Shorten, Ludwig, Tony Sheldon plus others will be finished out of this Royal Commission. These people who will be exposed in this Royal Commission are criminals of the highest order who have to face justice no matter what. I also believe that more hideous things will be exposed out of the AWU fraud and how Julia Gillard was able to appoint people who knew, even helped her in the fraud, and covering up the fraud to judicial, ministerial positions etc when she was prime minister. The AWU & the CFMEU are the ones who have plenty to worry about in this Royal Commission. Many hideous things I suspect will come out of these 2 unions. They are both criminal unions, simple as that. Bring on this Royal Commission!! Game on!!. Reply
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o 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
Chookums February 16, 2014 at 3:52 am # You forgot to mention the complicity of company managers too. The original police investigation into the AWU fraud was clearly stonewalled by Theiss who surely must also end up on the RCs list of concerns. 5 As a business owner who was defrauded of $250k by a partner, let me tell you Id have moved heaven and earth to nab the bastard if I could have, but our situation was deemed an inside job with no paper trail and impossible to prosecute. Id still love to leave a gift on his grave if I knew where the asshole was buried. Theiss on the other hand claimed they got what they paid for and all was hunkey dorey and refused to press charges or co-operate with the investigation. They covered up too because they were guilty of corrupt practices.
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http://kangaroocourtofaustralia.com/2013/05/12/high-court-of-australia-the-biggest-poker-game-in-town/
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High Court of Australia The biggest poker game in town Former High Court of Australia judge Michael McHugh (1989-2005) said in 2009 of the then High Court judge William Gummow (1995-2012) Gummow is a great judicial politician, and He always had three votes. This is a statement straight from the horses mouth so to speak and takes one into the heart of the highest court in the land. (Click here to read more) It would have to be one of the biggest statements that any judicial officer has ever made and it cannot go undocumented on this site. How can we trust the High Court to hand down true and just judgements when there was until last year and possibly still is a voting block by some of the judges. Seven judges sit on the High Court of Australia and the public would like to believe that they think and act independently of each other and make their decisions based on their own interpretation of the law. From what Michael McHugh says they clearly do not.
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There has always been strong argument in the US that the judges that sit on their highest court, the Supreme Court of the United States, hand down judgements based on which political party appointed them in matters before the court that have a political influence. The same is sometimes said here in relation to the High Court. But that is not an argument we need to have at this point because if the statement of Michael McHugh is true and correct then there was a voting block in the High Court of Australia which may still exist. Whether that voting block was or is along political lines is an issue but the biggest issue is that there was a voting block at all which has to leave the average person very disturbed. How many cases were prejudged before they ever reached hearing at the High Court of Australia? Michael McHughs statement is consistent with what the recently retired High Court judge Dyson Heydon (2003-2013) has been quoted as saying: Retired High Court judge Dyson Heydon has fired a parting salvo at his fellow judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence.
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In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled The enemy within, published in the Law Quarterly Review. 5 And: In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment a closure by members of the court of their minds too early, before word of oral argument has been uttered, Mr Heydon wrote (Click here to read more) It is regularly said that the politicians make the laws and the courts only interpret the laws. Well that is not true. How the courts interpret the legislation that the politicians pass through parliament is itself making the laws. At times you will hear politicians critical of the courts, including the High Court, on how they have interpreted the legislation. Courts make laws everyday. It is what is known as common law which are the precedents that the courts set. The High Court of Australia, being the highest court in the land, is the final place for determining what the common laws will be, which lower courts are meant to follow. The decisions can have a huge influence not only on the country but also individual cases in the lower courts. To have a situation where there is a voting block on the High Court can have a major negative influence on the country and individuals. Special Leave to Appeal 20 To appeal to the High Court of Australia you need to be granted what is called Special Leave to Appeal. It is worth looking at this especially when considering the voting block that was alleged in the High Court by Justice McHugh. It says on Wikipedia: The High Courts appellate jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court. However, section 73 allows the appellate jurisdiction to be limited with such exceptions and subject to such regulations as the Parliament prescribes. Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903. This requires special leave to appeal. Special leave is granted only where a question of law is raised that is of public importance; or involves a conflict between courts; or is in the interests of the administration of justice. Therefore, while the High Court is the final court of appeal, it cannot be considered to be a general court of appeal. The decision as to whether to grant special leave to appeal is determined by one or more Justices of the High Court (in practice, a panel of two or three judges). That is, the Court exercises the power to decide which appeal cases it will consider. (Click here to read more) The key part is that Special Leave to Appeal is determined by two or three judges. Now if William Gummow had three votes he could always count on (his own and two others) as McHugh has said then Gummow had a lot of power to block cases ever being heard by the High Court. And that is what I understand he did, which one particular case I know of shows, but more on that in the future as I do not want to take the focus off the voting block that McHugh alleges, which is something I believe requires further investigation by the federal parliament.
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I was critical of Michael McHughs appointment as a High Court judge in the second post that I published on this site, given his wife was a federal Labor politician at the time of his appointment. (Click here to read the post) But he should be applauded for having the courage to say what he did about William Gummow and his voting block. McHugh would not have won many friends in the judicial fraternity for saying that but he has given the public an insiders viewpoint on how the High Court of Australia really operates. This is not the longest post on this site but I believe one of the most important. It is not everyday that you get insiders telling it like it is, especially former judges of the High Court of Australia.
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http://www.smh.com.au/national/great-dissenter-takes-a-swipe-at-closed-minds-of-the-bench-20130315-2g5ys.html
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Great dissenter takes a swipe at 'closed minds' of the bench

National Date
March 16, 2013

Read later
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Harriet Alexander
EXCLUSIVE
Solitary figure: Dyson Heydon shares his thoughts in an essay. Photo: Renee Nowyarger
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Retired High Court judge Dyson Heydon has fired a parting salvo at his fellow judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence. In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled ''The enemy within'', published in the Law Quarterly Review.
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''Stronger judicial personalities tend to push the weaker into submission,'' Mr Heydon wrote. ''They stare out from their judgments with the superb elegance of noblemen in Renaissance portraits - utterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorifying in their self-perceived terribilita.''
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Sometimes those judges exerted their influence even before oral argument began, in the judicial conferences that were held among the seven members of the bench to discuss the issues of each case. ''In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment - a closure by members of the court of their minds too early, before word of oral argument has been uttered,'' Mr Heydon wrote. ''Chief Justice Griffith spoke of the process by which 'arguments were torn to shreds before they were fully admitted to the mind'. Some counsel now think that they are torn to shreds before they have fully left counsel's mouth.'' It is expected that the paper will be interpreted as referring to the ''dominant'' judicial personalities as Justices William Gummow and Kenneth Hayne. Mr Gummow retired last year after a career in which he was well known as a persuasive force on the bench and rarely gave a dissenting judgment.
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Mr Heydon emerged as a great dissenter to rival Michael Kirby and often wrote his own judgments even when agreeing with his colleagues. It was a practice that frustrated lawyers, but might have secretly relieved his colleagues, whose draft judgments he used to pepper with grammatical corrections before he took to writing his own.
He said in his paper that writing separate judgments forced judges to examine each case closely and made their reasoning accountable to the parties and public. It also closeted judges from irrelevant matters that arose during collective deliberation. ''The secret debate among the bench can move further and further from the parameters of the public debate between bench and bar,'' he said.
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''Bright idea can be trumped by brighter idea. The meeting can be seduced by suave glittering phrases.'' Read more: http://www.smh.com.au/national/great-dissenter-takes-a-swipe-at-closed-minds-of-the-bench-201303152g5ys.html#ixzz2tQ29QTuy
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http://www.aals.co.uk/article.php?article=NTc=
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The enemy within, a lecture by Justice Heydon

6th January 2012
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The UK committee of the AALS in association with Herbert Smith is pleased to invite you to a lecture on the topic of "Judicial Independence: The Enemy Within" on Thursday 26 January 2012. His Honour Justice Dyson Heydon is one of the 7 members of the High Court of Australia, the highest court of appeal in the Australian judicial system and is a distinguished member of the Australian judiciary. He has expressed his opposition to judicial activism in the past and this lecture represents an unusual opportunity to hear from such a senior member of the Australian judiciary. Justice Heydon is a distinguished member of the Australian judiciary and a highly regarded academic and legal scholar.
For further information, including the full text of the invitation and biographical information for Justice
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Heydon, please see the attached invitation.
The lecture will be taking place in the offices of Herbert Smith, Exchange House, Primrose Street Auditorium from 5.00 to 6.00pm on Thursday 26 January 2012. It will be accredited with 1 hour of CPD. Tea, coffee and biscuits will be available from 4.45pm and drinks will be served at 6.00pm.
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To register for this event please contact Jane Webber, Jane.Webber@herbertsmith.com.

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The Eureka Stockade Oath 40

"We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties". (Oath sworn by diggers at Bakery Hill, 29 November 1854)
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As a CONSTITUTIONALIST I hold the view that the legal principles embedded in the constitution are paramount to be obeyed and if this turns out not what the general community desires then a referendum can always be pursued to amend the constitution, but we cannot have
judges violate constitutional limitations/prohibitions merely because of their own political and contemporary views. As quoted below the Framers of the Constitution expressed themselves very much that one cannot twist and pervert the meaning of the constitution. Judicial officers if anything should heed this warning. While the High Court of Australia may have its convention not to go against a decision of previous judges of the High Court of Australia, to me this can never be accepted as appropriate. I view a judge (see also Fosters principle below) must acknowledge the true meaning and application of the constitution regardless what previous judges may have stated otherwise. Not to do so would allow politicians to triumph with their political mastery to appoint judges who may lack the calibre of independence and are so to say mere lapdogs for a political goal of politicians in power. The very purpose of the High Court of Australia being created within the constitution itself and not under the political wimps of politicians was to ensure to have a fearless impartial court. Regretfully, over time I view this no longer exist. In my submission a commissioner being a former judge of the High Court of Australia by this himself failed to act when he should have. To remain silent when one should have spoken up in itself can be deemed to be a co-conspirator of a misdeed.
"When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." Declaration of Independence, July 4, 1776.
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http://www.pm.gov.au/media/2014-02-10/royal-commission-trade-union-governance-andcorruption QUOTE
Royal Commission into governance and corruption

30 Monday, 10 February 2014 Prime Minister Minister for Employment Attorney-General E&OE
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I will be recommending to the Governor-General, Her Excellency Ms Quentin Bryce AC CVO, the establishment of a Royal Commission to inquire into alleged financial irregularities associated with the affairs of trade unions. It will inquire into the activities relating to slush funds and other similar funds and entities established by, or related to, the affairs of these organisations. This will not be an inquiry into trade unionism or the day to day activities of honest trade union officials.
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Instead, it will address increasing concern arising from a wide range of revelations and allegations involving officials of unions establishing and benefiting from funds which have been set up for purposes which are often unknown and frequently unrelated to the needs of their members. We dont want honest workers to be ripped off by dishonest union bosses.
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Before the election the Coalition promised to establish a judicial inquiry into the Australian Workers Union slush fund scandal. This announcement honours that promise. A number of similar allegations have also been raised in relation to many other funds established by officials of other unions. These strongly indicate there are systemic issues involving secret funds, commissions and kickbacks that need to be considered. In addition, recent allegations of corrupt behaviour, unlawful kickbacks and standover tactics in the construction industry have made it clear that there is a need for serious scrutiny of allegedly corrupt conduct, wherever it may occur. 10 As a result, the terms of reference are not limited to any particular organisations, particular allegations or particular industries. The inquiry will be able to go wherever the evidence leads it. This means that union officials, employers and any other persons who are involved in such conduct will be subject to equal scrutiny. In order to make this a truly national inquiry, I also intend to ask each of the State Premiers to arrange for their State to issue letters patent in the same terms to confer equivalent State commissions on the Royal Commissioner. The Government will submit the proposed terms of reference to Her Excellency at the next available opportunity, pursuant to the Royal Commissions Act 1902. The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment. The Attorney-General and the Minister for Employment will co-ordinate any Government work associated with this inquiry. 10 February 2014 25 1. Terms of Reference The Royal Commissioner will inquire into and report on: The governance arrangements of any separate entities established by registered employee associations or their officers, purportedly for industrial purposes or for the welfare of their members, with particular regard to: the financial management of such entities; the adequacy of existing laws as they relate to such entities with respect to: the integrity of financial management; and the accountability of officers of registered employee associations to their members in respect of the use of funds and other assets in relation to such entities; whether such entities are used, or have been used for any form of unlawful purpose; the use of funds solicited in the name of any such entities, for the purpose of furthering the interests of: a registered employee association; officers of a registered employee association; members of a registered employee association; or any other person, association or organisation.
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a. b. i. ii. c. d. i. ii. iii. iv.
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a. b. c. d. e. f. 3.
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Without limiting the matters in paragraph 1, alleged activities relating to the establishment or operation of any such entities as they relate to the various registered branches of the following employee associations: the Australian Workers Union; the Construction Forestry Mining and Energy Union; the Electrical Trades Union; the Health Services Union; the Transport Workers Union; and any other person, association or organisation in which in respect of which credible allegations of involvement in such activities are made. The circumstances in which funds are sought from any third parties and paid to such entities. Where such entities and activities related thereto exist, the extent to which persons represented by registered employee association: are protected from any adverse effects or negative consequences arising from their existence; or are informed of their existence; or are able to have influence or control of their operation; or have the opportunity to hold officers of such associations accountable for any alleged wrongdoing. Any conduct which may amount to a breach of any applicable law, regulation or professional standard by any officer of a registered employee association in order to: procure an advantage for themselves or another person, association or organisation; or cause a detriment to a person, association or organisation. Any conduct in relation to such entities which may amount to a breach of any applicable law, regulation or professional standard by officers of registered industrial employee associations who hold, by virtue of their position, a position of responsibility in relation to any such entities. Any bribes, secret commissions or other unlawful payments or benefits arising from contracts, arrangements or understandings between registered employee associations or their officers and any other party. The participation of any persons, associations or organisations other than registered employee associations or their officers in conduct of the type described in paragraphs 1, 2, 3, 4, 5, 6 or 7. The adequacy and effectiveness of existing systems of regulation and law enforcement in dealing with any conduct of the type described in paragraphs 1, 2, 3, 4, 5 6, 7 or 8, and in particular, the means of redress available to registered employee associations and their members who have suffered a detriment as a result of such conduct.
4. 15 a. b. c. d. 5. a. 25 b. 6.
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10. Any issue or matter reasonably incidental to the above. Definitions registered employee association means an organisation registered under the Fair Work (Registered Organisations) Act 2009, its predecessor legislation or equivalent State legislation, and as defined by section 12 of the Fair Work Act 2009.
law means a law of the Commonwealth or of a State or Territory. officer of a registered employee association means any employee or elected officer holder of such an organisation. 5 Organisation includes any registered industrial organisation, corporate entity or association, whether incorporated or not. separate entity means a fund, organisation, account or other financial arrangement that is either a separate legal entity to a registered industrial organisation and/or is not covered by the statutory financial reporting obligations that the organisation is subject to under the Fair Work (Registered Organisations) Act 2009, its predecessor legislation or equivalent State legislation. END QUOTE The above in my view leaves it open for the Royal Commission (provided it operates in a constitutional valid manner, something I question, than it could be held that political parties also could be included in this Royal Commission Terms of References.
QUOTE f. any other person, association or organisation in which in respect of which credible allegations of involvement in such activities are made. END QUOTE QUOTE 7.Any bribes, secret commissions or other unlawful payments or benefits arising from contracts, arrangements or understandings between registered employee associations or their officers and any other party.
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8.The participation of any persons, associations or organisations other than registered employee associations or their officers in conduct of the type described in paragraphs 1, 2, 3, 4, 5, 6 or 7. END QUOTE
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If this Royal Commission (into trade union governance and corruption) determines it has jurisdiction (albeit it is not a court as such) to investigate matters, something I question as set out below, then I view it should include the conduct of political parties (in their own being really trade unions) as to the bribes they receive and the benefits they provided to those providing the bribes. As I wrote about in my books published in the INSPECTOR-RIKATI series on certain constitutional and other legal issues there ought to be a ban for at least 5 years of any company that provided a financial support to a political party as to be engaged in any contract with the (subsequently elected) Government if that party receiving the financial support were to gain Government. Neither should any financial support to a political party be tax deductible. The enhancement of bribery and corruption is created when a business can donate monies to a political party and have it tax deductible and in return if this political party were to succeed to form a government then kickbacks and inappropriate benefits to or from the donor of the donations. Who can forget the donations to the Liberal Party and then followed that the Liberal Party in government provided financial benefits to those donors regarding mixing petrol up to a certain percentage. What, if any donation existed by Cadbury to the Liberal Party and for this in return it is provided with millions of dollars (albeit unconstitutionally) from Consolidated Revenue Funds? Obviously, the financial support provided to Cadbury cannot be deemed part of annual departmental expenditure and hence required a special Appropriation bill to be passed to allow for this, not that I concede such Bill would be constitutionally valid. As after all no such constitutional powers exist to provide funding to a private corporation! This is also set out below.
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Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. HOLDER.-A measure would be valid while it was a Bill, and invalid when it became a law.
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Mr. ISAACS.-That is a very terse and correct way of putting it, and it proves the absurdity of the provision. We are, in my opinion, making the Senate too strong a body. To allow these matters to be carried into the Supreme Court is to say that the Senate cannot protect itself, and that the states cannot protect themselves. Surely that is not to be thought of for a moment. We want a people's Constitution, not a lawyers' Constitution. We shall be making the Supreme Court, not the master, but the tyrant of the Constitution, by inserting a clause of this kind. I do strongly appeal to my honorable friends to alter the clause in some way. My view is that we should put in the word "proposed." At all events, we should do something in this direction, and we should at least make a distinct provision that if a Bill does not comply with this clause, the invalidity should go no further than the additional matter. That could be worked out no doubt in an Appropriation Bill, but you could not work it out in a Taxation Bill, because where two subjects were dealt with you could not tell which was the additional matter. You might make such a provision with regard to the additional matter in Appropriation Bills. The court could then say that certain items were not for the annual services of the year. They would be invalid, and the remainder of the Bill would be valid, but that would lead to the difficulty of the court having to determine what were the ordinary annual services of the year. Mr. BARTON.-Are not the annual services the annual expenditure proper to the public service? Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public servant. That would not come within the ordinary annual services .[start page 2003] It would not be proper to the public service of the Commonwealth. It would not be a payment for services rendered in the future, but for services in the past. We all know that in connexion with the ordinary annual Appropriation Bills questions arise that make it very difficult to say what is and what is not an ordinary annual service. END QUOTE Hansard 8-3-1898 Constitution Convention Debates
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QUOTE Mr. DEAKIN.-
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. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start page 2042] as he pointed out, if there be embedded in the Constitution a direct enactment that no proposed laws for taxation including more than the one subject of taxation, and no proposed Appropriation Bill going outside the ordinary services of the year, can be legally dealt with, both the Speaker of the House of Representatives and the President of the Senate would not only be authorized, but would be imperatively required, in the discharge of their duty, to rule such a measure out of order at any stage of its existence.
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Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. HOLDER (South Australia).In an Appropriation Act we should have so many hundred thousand pounds for this, and so many hundred thousand pounds for that, and other items; but we should have no detail whatever. In no Appropriation Act passed by any Parliament is there given small details of the amounts appropriated. An Appropriation Act would often include amounts of 10,000, 15,000, 20,000, and larger sums, the details of which would be lost altogether in the mass of votes included in the Act . Therefore, it is quite impossible for any court to tell from the mere construction of an Appropriation Act whether the items do comprise moneys required for the ordinary annual services of the Government, even if that phrase "ordinary annual services of the Government" were beyond dispute. Personally, I do not know what the phrase means, and I do not suppose it is possible for anybody definitely to say what it means. Mr. REID.-With a new Government it will be a very difficult matter to know what are "ordinary annual services." Mr. HOLDER.-Yes; but every item must be an annual expenditure, not one which comes on specially. Now, we all know that all sorts of special emergencies arise in every country, and that special provision has to be made for every such emergency. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p74
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Mr. ISAACS.-Would 50,000 for contingencies be regarded by the court as money appropriated for the ordinary annual services of the Government? Mr. REID.-That would be a nice question for the High Court to determine.
END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. ISAACS.-Suppose you had in the Appropriation Bill, a grant of 500 payable to John Brown, and it was not one of the ordinary annual services of the Government: could not the court, under this sub section, set the whole law aside? Mr. BARTON.-There is no doubt that I might be tempted to return the same answer to that question which a speaker on a memorable occasion returned. Mr. ISAACS.-It is a very good reason for not having the clause in the Bill.
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Mr. BARTON.-It is no reason for not having the clause in the Bill. If my learned friend thinks that the words as they stand are liable to confusion, if he thinks that the ordinary annual services. of the Government do not sufficiently define the ordinary annual Appropriation Bill-an Act which the Government must pass to carry on its own existence -let him suggest some better form of words. Let him make the clause clearer, and by so much as he makes it [start page 2019] clearer he loses the whole point and effect of his own argument. If the court were to decide that this grant of money to John Brown is part of the ordinary annual services of the Government, let it be so; but if it is not to decide the question we will soon find that out, and it can be rectified in six hours. Mr. TRENWITH.-But in the meantime the whole Bill goes. Mr. ISAACS.-The whole law goes.
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Mr. BARTON.-In the meantime the whole Bill need not go. We know very well that the whole Bill does not go under these circumstances, and I am astonished that some of my honorable friends have not sufficient recollection of Victorian history not to tell us that. Mr. ISAACS.-We have too vivid a recollection of Victorian history to allow this to pass. Mr. BARTON.-Well, summing up, if the argument is that the sub-section should be made clearer, let us have suggestions for the clearing of the sub-section, and, in proportion as those suggestions are good, the necessity for my learned friend's amendment diminishes; but I submit that where a law bears on its face the evidence of an infraction of the Constitution, we should be entitled not to allow the process of that law to be regulated by mere methods of procedure, but to submit them to the determination of the court, because of the evil which appears on their faces. Then, as regards the objections taken to clause 54, I submit that under that clause the rights of the Senate and the House of Representatives are correlative rights, but that we are not here to confer rights on Chambers, except by way of making them instruments of the rights of the people-that so far as we assume to do that we do that sufficiently under clause 54, a clause relating to procedure, without invoking a judicial tribunal to interfere with mere matters of procedure; but that where the matters are not only procedure, but go beyond procedure, so as to be matters which carry on their face the evidence of distinct infractions of the Constitution, then, as we do under clause 55, we do right to submit those matters to the judicial tribunal. END QUOTE
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Hansard 8-3-1898 Constitution Convention Debates QUOTE
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Mr. HIGGINS.-Supposing that an Appropriation Bill is brought up from the House of Representatives providing for the ordinary annual services, and providing, amongst other things, for the payment of light-house keepers, the Senate might think that this provision for the payment of the lighthouse keepers should not be carried unless a provision was also inserted dealing with the light -house keepers who had been dispensed with. Mr. DOBSON.-We should put them in a separate Bill. END QUOTE p75 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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The s101 of the constitution Inter-State Commission was to deal with expenditure not uniform throughout the Commonwealth, such as with Trade and Commerce and other matters the Parliament provided for in addition. 5
HANSARD 25-2-1898 Constitution Convention Debates QUOTE Commission obligatory. END QUOTE
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HANSARD 25-2-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of Parliament. END QUOTE
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Hansard 25-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE
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Mr. BARTON.-Its powers certainly should not be confined only, to the rivers described in the clause, but should extend to all rivers that are navigated. Dr. QUICK.-The clause would, as it stands, confer on the Inter-State Commission a more limited power than is contemplated by this committee. Of late, in Victoria, I regret to say, road traffic has been superseding the railway traffic in many respects. So that it will be desirable that the Inter-State Commission, in the constitution of which I thoroughly [start page 1515] concur, should have jurisdiction over all avenues of communication. Consequently, the limiting words in clause 96 should be struck out. I also hope that Sir George Turner will see his way clear to giving the Inter-State Commission jurisdiction to deal with the preferences and discriminations which are contemplated by his clause. I think it should not only be sufficient hereafter to harmonize these particular provisions but also to harmonize with the other clauses of the Bill. The other clauses, as well as the Inter-State Commission clauses, give the Parliament power to make the laws, and the Inter-State Commission the jurisdiction to enforce those laws, and especially to prevent preferences and discriminations. END QUOTE
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Hansard 25-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. HOLDER.-To administer rather than to interpret. Mr. MCMILLAN.-Perhaps I am not using the right term. Mr. OCONNOR.-"Execute and maintain," those are the words.
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Mr. MCMILLAN.-To "execute and maintain"; and if we are going to have a tribunal of this kind-and I assume that we have practically carried the principle, by arrangement at any rate-then we ought to decide that it shall be as nearly as possible Mr. KINGSTON.-An independent body.
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Mr. MCMILLAN.-Yes, an independent body, introduced into the Constitution very much as we have introduced the Supreme Court; a body established by the Constitution, and free from all political prejudices and unnecessary control. With our knowledge of what we intend this body to be, we have first to decide its character and scope, and the principles upon which it is to be founded, and then other matters will flow from those definitions. Mr. ISAACS (Victoria).-I am afraid that we shall be getting ourselves into a maze if we do not take care. I would point out that great as are the advantages of having an Inter-State Commission, it is very problematical in America, at the present time, how far the Inter-State Commerce Commission there has been beneficial, and how far not. There has been considerable discussion upon the question, and no later than December, 1897, in the Forum, there was a paper by one of the members of the Inter-State Commission-Mr. Prouty, I think-who 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p76
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dealt with the question of pooling. This paper was the latest of a very extensive series of articles dealing with the Inter-State Commission in relation to railways, and the conclusion come to was that it is very problematical how far the commission has been beneficial and how far not.
Mr. HOLDER.-They have to deal with private railways in America, but our Inter-State Commission will have to deal with state railways. Mr. ISAACS.-That point is perfectly irrelevant, if I may say so, to this [start page 1516] question. The difficulty is exactly the same. Mr. HOLDER.-The two cases are different; in one case the railways are owned by private people, and in the other the state owns the railways.
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What we have however is what I consider to be unconstitutional is the selloff such as of Telstra, and other entities where s69 of the constitution doesnt provide for this power to sell off. Indeed, the Framers of the Constitution specifically provided the transfer of postal and telecommunications to the Commonwealth as it didnt want it to be in private hands as was in the USA. Regardless that an Inter-State Commission is obligatory to exist in the about last 100 years it only existed for a few years in the 1980s, and we have seen that the Prime Minister now seems to have some slush funds of $400 million or more and now unilaterally give this way to pet projects not at all within annual services and as such provide for corruption. One cannot separate the corrupt conduct engaged in by political parties in power (government) versus that which may involved ordinary leaders of unions. It is t4he corruption in government that so to say sets the pace for others to follow. We must stamp out therefore any corrupt conduct no matter if this involved all or any political party. The following are details of AusAID donations, a Government Department funding political parties. As public servants generally belong to a union then if this Royal Commission has any legal standing to investigate, something I do not concede in this writing, than it should investigate also this as I view it kind of fraudulent usage of monies from Consolidated Revenue Funds.
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The donations clearly are as I view it attempt for bribery because in return it is expected that this political party if elected to Government (Actually it is not elected but commissioned if it holds
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the majority of seats in the House of Representatives) then this new Government will provide certain benefits in return. With this generally INDEPENDENT candidates will not receive such financial support (donations) and therefore such donations are disadvantage INDEPENDENT candidates, which then lack generally the finances to conduct an election campaign as the financial supported political parties can do. Indeed, the unconstitutional payment per first preference (vote) means that political parties generally can pre-spend this monies during the election campaign and so disadvantage INDEPENDENT candidates which are unlikely to receive any such payments. As a CONSTITUTIONALIST I hold that the legislation provided for such payments are unconstitutional and contrary to the intentions of the Framers of the Constitution. Perhaps, if this Royal Commission (into trade union governance and corruption) were to hold it can constitutionally investigate matters it might very well that the Terms of References may so to say bite the Liberal Party in its bum. It should not be overlooked that the Liberal Party as well as other political parties are directly and/or indirectly employing people. And, we know too well that staff employed as public servants for Kevin Rudd were resigning at masses when Julia Gillard took over, and so also when Kevin Rudd regained to be Prime minister and so subsequently when Tony Abbott became Prime Minister. Why on earth should Public Servants serving the same political party resign his job? After all they are employed to serve the general community and not a particular political party! Was this some corrupt dealing with advisors, etc, that they would be reemployed if the resigned, after they already had a huge payout? As Political parties are businesses and so the government then I view that it would be appropriate to have them investigated also, if the Royal Commission were to hold it can legally investigate matters. One also then has to consider what may be corrupt conduct by the AEC (Australian Electoral Office) in elections, something I raised in my books published in the INSPECTOR-RIKATI series on certain constitutional and other legal issues. (More about this later.) We have a corporate (under the District of Columbia) Federal Government which in itself prevent it to govern within the context of the Commonwealth of Australia Constitution Act 1900 (UK). Itself in breach of s44 of the constitution! We have corporate Courts using ABN numbers which also is unconstitutional, as well as that no corporation can pronounce judgments as a court of law. Besides the fact that the GST is in violation of the intentions of the Framers of the Constitution, something I have written extensively about in my books published in the INSPECTOR-RIKATI series on certain constitutional and other legal issues and hence no need to delve into all this in this submission, the fact remains that there is within the constitution no legal mechanism to tax the courts. Hence no taxation on the judiciary, including GST, can be constitutionally justified.
Commonwealth of Australia Constitution Act 1900 (UK) QUOTE 114 States may not raise forces. Taxation of property of Commonwealth or State A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. END QUOTE
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No such equivalent exists in regard of the judiciary. To allow any form of taxation upon the judiciary would mean it could be used to manipulate the judiciary. While the administrative arm of the judiciary may be subject to taxation, for so far provided to the judiciary by the relevant Government, no taxation can be laid against the courts.
HANSARD 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sub-clause 13. Banking, the incorporation of banks, and the issue of paper money.
Colonel SMITH: I should like to ask the hon. member, Sir Samuel Griffith, if the word "banking" covers the possibility of establishing a bank for the commonwealth? Sir SAMUEL GRIFFITH: I should think not! END QUOTE
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We found that the Commonwealth nevertheless established its own Commonwealth Bank and then sold it off.
HANSARD 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. MUNRO: We have agreed to sub-clause 13, dealing with the incorporation of banks, and I do not see why a similar provision should not be made in regard to the incorporation of companies. Why should they not be under the control of federal officers? At the present time the law as to incorporation is different in the different colonies, and the result is [start page 686] extremely unsatisfactory in many cases. I do not see why we should not make the same provision in regard to the incorporation of companies as we have made in regard to the incorporation of banks. We might introduce at the commencement of the sub-clause words to this effect: "The registration or incorporation of companies." Sir SAMUEL GRIFFITH: I do not think we should. There are a great number of different corporations. For instance, there are municipal, trading, and charitable corporations, and these are all incorporated in different ways according to the law obtaining in the different states. Mr. MUNRO: But as to trading corporations! Sir SAMUEL GRIFFITH: It is sometimes difficult to say what is a trading corporation. What is important, however, is that there should be a uniform law for the recognition of corporations. Some states might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability of members, while another state might not think it worth its while to take so much trouble, having regard to its different circumstances. I think the states may be trusted to stipulate how they will incorporate companies, although we ought to have some general law in regard to their recognition. Sir JOHN BRAY: I think the point raised by the hon. member, Mr. Munro, is worth a little more consideration than hon. members seem disposed to bestow upon it. We know what some of these corporations are; and I think joint-stock companies might be incorporated upon some uniform method. In South Australia, a banking company is not allowed to be incorporated under the Companies Act; still, there is nothing in Victoria of which I am aware to prevent a banking company from being registered there as a limited company and opening a branch in South Australia a few days afterwards. I think it is necessary, therefore, to have some uniform law. There is nothing in which the public should have more confidence than in banks which are in any way recognised by the state; and I think we should have some uniform system of incorporating banks. Many companies, although doing business under different names, are, in reality, banks. Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria! Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer all the purposes of banks. We have provided that the federal parliament shall legislate as to the incorporation of banks; but there is nothing to prevent the incorporation by the states themselves, quite apart from the federal parliament, of trading companies which will do all the ordinary business of banks. If it is desirable to intrust legislation as to the incorporation of banks to the federal government, there is no reason why we should not say that the registration of financial companies doing all the business of banks should be dealt with in the same manner. Sub-clause agreed to. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p79
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END QUOTE
We found that the Commonwealth somehow with consent by the High Court of Australia 2006 WorkChoices decision can use the provisions of subsection 51(xx) for other purposes than what was intended by the Framers of the Constitution, in fact contrary to it, as shown to some extend below. Commonwealth of Australia Constitution Act 1900 (UK)
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(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
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Is therefore courts, including the High Court of Australia now to be deemed a corporation and so the Commonwealth can interfere with the judiciary, say blackmail it to hand down decisions in its favour of suffer taxation consequences? I do not accept this nonsense, as the High Court of Australia was created not as a third department of government but contrary to it as the third entity within the constitution separated from the legislators and the executives. The Inter-State commission could be considered as the 4th entity within the Constitution as it contrary to the Parliament and the executives may act without being bound to uniform application and its decisions can only be appeal upon an error of law, as like with the executive (government) and the Parliament. This Royal Commission (into trade union governance and corruption) appears to me to be set up as some political witch-hunt and this is extremely dangerous for any democracy. This also if as I view it the commissioner himself is or can be seen to be bias.
HANSARD 28-1-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.It has been thought well that there should be a uniform law throughout Australia in respect to the citizens of Australia, and it was considered that this provision should be put into a separate clause giving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislate upon this matter. END QUOTE
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Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS (Victoria).In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth. An income tax or a property tax raised under any federal law must be uniform "throughout the Commonwealth." That is, in every part of the Commonwealth. END QUOTE
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Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. MCMILLAN: I think the reading of the sub-section is clear. The reductions may be on a sliding scale, but they must always be uniform. END QUOTE
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Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a sliding scale great injury will be avoided. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p80
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END QUOTE
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Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.But it is a fair corollary to the provision for dealing with the revenue for the first five years after the imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the whole, it will be a useful and beneficial provision. END QUOTE
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Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may determine, which insures that these duties of customs and excise would represent something like the average opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states for some years, unless their own rights to give bounties were to some extent preserved. END QUOTE Hansard 31-3-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: 2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one state to another; END QUOTE Hansard 11-3-1898 Constitution Convention Debates QUOTE The CHAIRMAN.Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods passing from one state to another. END QUOTE Hansard 11-3-1898 Constitution Convention Debates QUOTE Mr. BARTON (New South Wales).That all the words after the word "taxation" where it is first used be struck out, and that the following words be substituted:-"but not so as to discriminate between states or parts of states, or between goods passing from one state to another." END QUOTE Hansard 11-3-1898 Constitution Convention Debates QUOTE Mr. BARTON (New South Wales).That all the words after the first word "taxation" in the second sub-section be omitted, with a view to inserting the following words-"but not so as to discriminate between states or parts of states, or between persons or things passing from one state to another." The amendment was agreed to. The clause, as amended, was agreed to. END QUOTE
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Then, on 16-3-1898 is appears to have been amended, without further discussion but approved off by voting, from;
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Taxation; but not so as to discriminate between states or parts of states, or between persons or things passing from one state to another.
END QUOTE
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To
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Taxation; but not so as to discriminate between states or parts of states

END QUOTE
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It was claimed that in substance there was no change. Hence, both versions ought to be taken as having the same meaning.
This is a critical issue as the wording; or between persons or things from one state or another 5 then clearly entails that there can be no difference in taxation between persons, and as such neither one person having a tax free income, partly or wholly while another having the same income is required to pay more tax.
Hansard 22-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form. What I am saying however, is that it should be made certain that in the same way as you provide that the Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be provided with reference to trade and commerce that it shall be uniform and equal , so that the Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as we follow the United States Constitution in that particular-in the very same way I argue that we should protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real logical position. END QUOTE
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Judges as like politicians and others employed within the Commonwealth of Australia should have no such thing as tax free incomes, because they should as like any other citizen pay tax. They are not paying taxation as a judge or as a legislator but are paying tax as a citizen having an income that is taxable as like any other citizen. Therefore, taxation upon the courts would be unconstitutional and unnecessary because those employed in whatever job would be liable to pay tax as a citizen pending the level of income being taxed against others. In fact to exclude judges from taxation could in itself be deemed a form of bribery. Filing fees set by the parliament a form of taxation interfering with the ability of some citizen to litigate.
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Also, as set out below, where I filed an application within s75(v) of the constitution, a right the Framers of the Constitution guaranteed in the constitution then judges as I view it manipulate their powers to try to use legal technicalities to deny a citizen this constitutional right. That is not in my view the powers of the High Court of Australia.
QUOTE Schorel v Elms (1994) Unreported M2944X of 1989 SA27 of 1993 Page 16 and 17: Justice must not only be done but must be seen to be done END QUOTE
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QUOTE Neil v Nott (1994) 68 ALJR 509 at 510 (High Court) A frequent consequence of self representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy END QUOTE
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While the Family Court of Australia was set up where the Parliament at the time opposed a fee, nevertheless this now has become the norm. Worse, self-represented litigants are often subjected to legal cost of the other party. And I am not aware the High Court of Australia opposed this, where a litigant to poor to afford legal representation and forced to do his/her own then is subjected to pay the other parties legal representation. We lack impartial courts to hear and determine matters as was intended by the framers of the Constitution. And as I understood it Mason CJ himself admitted that the High Court of Australia would hand down judgments where it sought to cover issues where it held the Parliament should
have legislated but had failed to do so. As such the High Court of Australia, albeit unconstitutionally, interfered with the legislators exclusive powers.
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Hansard 20-4-1897 Constitution Convention Debates QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having important questions of constitutional law decided out of their own pockets.
END QUOTE
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Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. END QUOTE
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Hansard 19-4-1897 Constitution Convention Debates QUOTE Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE
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So, here we have it that the legal principle embedded in the constitution is that unlettered people of the community ought to be able to understand the constitution, and so this includes any legislation enacted within the powers provided for within the constitution to federal and or State parliaments and yet I am not aware that the High Court of Australia bothered to enforce this and struck down legislation because it was in blatant violation of this legal principle. To the contrary the High Court of Australia will often award cost against a person (who lost the argument) who seeks clarification of what legislation is about. If however the High Court of Australia had first of all clamped down on vague and aloof legislation then it could by this actually have prevented a huge number of litigation to eventuate as the legislation would be so to say pure and simple. As such a commissioner by this also having been a former member of the High Court of Australia in my view failed to enforce the relevant legal principles embedded in the constitution. How can I then accept such a commissioner will do any better as a commissioner in this Royal Commission? It appears to me such a commissioner was bias or deemed to be bias (when being a sitting judge at the High Court of Australia) not to ensure that the legislators provided for legislation that was as such that unlettered people could understand it. And, will as a commissioner pursue the application of the High Court of Australia in Sue v Hill and by this prevent any impartial inquiry. As a matter of fact, generally both parties are represented before the High Court of Australia and still those lawyers, no matter their experiences still will have extreme difficulties to understand what legislation is about. So, it underlines that if not just unlettered persons but even many highly educated lawyers still are unable to understand what the constitution and/or any legislation is about then obviously, in my view, the High Court of Australia failed to ensure the Parliament(s) provided appropriate legislation. For example, had there been a litigation before the High Court of Australia involving a government, it could have simply dismissed the case on the basis the relevant legislation is beyond the understanding of the unlettered person and therefore cannot be enforced. If the High Court of Australia had followed this kind of reasoning then the Parliament(s) may have acted to ensure their legislation would be in plain English. And the result would beyond doubt have been a considerable drop in litigation about the meaning and application of legislation. Therefore, I view, there was an inhered bias by the judiciary to still fail to enforce this. And the commissioner having been for so long part of the judiciary cannot in my view excuse himself
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from such astronomical failure within the judiciary. And, as such I expect no less but the same may flow from this Royal Commission. (See also matters set out below) To deny however a s75(v) application (perhaps because the court may consider to be overloaded with litigation cases) instead of conducting proper management, to use legal technicalities to railroad a citizens constitutional right in my view is but utterly deplorable. One that now has resulted to many an Australian soldier having been killed in Iraq and Afghanistan which could have been avoided had the High court of Australia instead heard and determined s75(v) applications upon their merits, rather than to merely assume it, as was done with the so called independence of the Commonwealth of Australia. (in Sue v Hill) Where indeed within the constitution is there any provision for the High Court of Australia to adjudicate outside the framework of the constitution part 9? In my view such provision doesnt and never did exist, and the judiciary can only exercise judicial powers within the context of the constitution. Hence, I view that the judges in Sue v Hill committed treason. Then any judge who nevertheless went along with this in my view also committed treason. If the Commonwealth of Australia was held by the Framers of the Constitution to be:
Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union . The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. END QUOTE QUOTE In the Marriage of P.N. and J.S. Axtell 7 FLR 931 The test of judicial bias as laid down by the high court is whether it has been established that it might reasonably be suspected by a fair minded person that the judge might not resolve the question before him with a fair and unprejudiced mind END QUOTE The book "Law Made Simple" by Colin F. Padfield, LL.B.,D.P.A.(Lond.) on page 55: QUOTE "The Rule against Bias. A true judicial decision can be reached only if the judge himself is impartial. This is an obvious requirement in a court of law or a tribunal. In R. v Rand (1866) it was held that a judge is disqualified where (i) he has a direct pecuniary interest, however small, in the subject-matter in dispute; or (ii) there is real likelihood that the judge would have a bias in favour of one of the parties. For example, if a judge is related to, or is a friend of, one of the parties to a dispute there would be real likelihood of bias. It is immaterial whether a judicial decision was in fact biased, for as was said by Lord Chief Justice Heward in R. v Sussex Justices, ex parte McCarthy (1924): 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.' As an example of pecuniary bias we may quote:
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Dimes v. Grand Junction Canal (1852). Lord Chancellor Cottenham made decrees in a Chancery suit in favour of a canal company. Lord Cottenham held several shares in the company. Held: (by the House of Lords): that the decrees be set aside on the ground of pecurniary interest. No bias was proved in fact, nor could it be shown that Lord Cottenham was in any way influenced by his shareholding.
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As an example of likelihood of bias we may quote:
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R. v Sussex Justices, ex parte McCarthy (1924). A was summoned before magistrates for a motoring offence. The acting clerk to the justices was a member of a firm of solicitors representing A in civil proceedings arising out of the same accident. The acting clerk did not advise the magistrates, but he retired with them to consider their decision. Held: that as the acting clerk was connected with the case in the civil action he ought not to advise the magistrates in the criminal prosecution. Conviction accordingly quashed, despite the fact that the acting clerk took no part in the decision to convict and had not been asked by the justices to give his opinion or advice. " END QUOTE
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Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759 QUOTE The fundamental rule of English (Australian) law is that " No man can be a judge in his own case". It has long been held that if there is bias or the appearance of bias such as to deny justice or create the impression that justice has not been done, then that bias, or apparent bias, is sufficient to invalidate the decision of those who made the decision. END QUOTE Reg v. The London County Council (1894) XI .L.R. 24 Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17. Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17. Black v. Black (1951) N.Z.L.R. 723 Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458
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QUOTE R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236 However in some cases the words or conduct of a judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v Watson; Ex Parte Armstrong (132 CLR at 262). The critical question, however, is not whether a judge believes he or she has prejudged a question, but whether that is what a party or the public might reasonably suspect has occurred (see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgement cited with approval by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well convey the impression of "protesting to much... END QUOTE
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If a commissioner assumes jurisdiction to investigate matters/issues as a Royal Commissioner merely because the Government may have established a Royal Commission then this itself may be considered bias, if in fact constitutionally such powers provided to the Royal Commission are outside the powers of the Commonwealth. The mere enactment of legislation itself cannot create legislative powers for a Parliament if in the first place no such extensive powers existed. For example, say a Royal Commission into water providers providing safe drink water would in my view be outside the constitutional powers of the Commonwealth. This as it would be a State matter.
HANSARD 24-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. O'CONNOR: I should certainly be altogether opposed to enacting anything in the Constitution which would make either House at any time merely subservient to the purposes of any Government, (Hear, hear.) The public interest stands higher than that. My only reason for proposing this mechanical method of getting rid of the difficulty is that it is to the public interest that the country should have the question settled one way or the other. END QUOTE
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While the High Court of Australia as I understand it has ruled that the Commonwealth can provide for regulations, etc, such as exercising part of Australia for immigration purposes, I view
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this would be unconstitutional because it would be that the Government (executives) can dominate the Parliament as to what the law will/might be. The Government can only act within legislative powers provided and no further. Hence, any Royal Commission can only be authorised within any valid legislative provision and not beyond it, regardless if the Federal Government may desire to do so for political reason such as to pursue a political witch-hunt. Therefore, the issue of jurisdiction by the Royal Commission is critical to its exercise of powers. In my submission this Royal Commission cannot proceed unless it first deals with the issue of jurisdiction and hand down a ruling in this regard. Failing to do so will in my submission nullify any further conduct by this Royal Commission. It is called a Royal Commission and hence it must set out in regard of if it is to have jurisdiction or not what kind of Royal Commission is it exercising. After all, where the Royal Commission operates under the British Crown then consider Sue v Hill (I do not seek to imply that I concede that this was a constitutional valid judgment) or if it is under the purported Queen of Australia then where is the constitutionally validity for a constitutional monarchy where the Framers of the Constitution specifically excluded any such establishment within the Commonwealth of Australia Constitution Act 1900 (UK)
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Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union . The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. END QUOTE
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Then without any amendment to the Commonwealth of Australia Constitution Act 1900 (UK) by way of amendment constitution act no different version of a constitution can be entertained. And s128 did not facilitate any such amendment to alter from British Crown to some purported Queen of Australia Australian monarchy. S128 was not a section that could be used to alter anything but only the preceding 127 sections as well as s128 but no further. Not even amend the preamble! Whatever Quick & Garran may have set out in their publication afterwards is to no affect where it comes to the actual Hansard Debates records. In my view it is bias by any judge to pick out something to try to get a certain outcome rather than to consider all relevant details. Indeed, as I did set out in my books, some Chapters quoted below, the High Court of Australia in the 2006 WorkChoices case was taking statements by the Framers of the Constitution out of context. This I consider a bias towards the Commonwealth.
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As such any commissioner who purports to act within powers of a Royal Commission under the purported Queen of Australia would in my view liable to possible criminal charges where such Queen of Australia is not a constitutional entity. The mere fact that the High Court of Australia
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may have followed suit with their so to say political masters to device a Queen of Australia cannot make it constitutionally valid, nor can provide any jurisdiction. Judges who were appointed within the authority of the British Crown somehow didnt change their appointments retrospectively merely because of the Sue v Hill decision. And the Sue v Hill decision was as I view it beyond the powers of the High Court of Australia as it was dealing with the matters before it on behalf of the Federal Parliament and not ordinary as a Court of competent jurisdiction. Therefore I view Sue v Hill was a political decision made for and on behalf of the Federal Parliament. Hence, the lack of factual legal matters to legally justify such decision. In my submission any judge and/or formal judge who went along with this utter nonsense about a Queen of Australia undermined our democracy and cannot be fit and proper to be a commissioner for a Royal Commission.
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And also considering that if the Commonwealth of Australia were to be an independent nation, as the Westminster Act refers, albeit incorrectly to it being a dominion, then the States lose their dominion status and be delegated as like in Canada and new Zealand as mere provinces. Something that was not contemplated and in fact opposed by the delegates at the constitutional convention!
Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) QUOTE Mr. DIBBS: " There may be something more dignified in the use of the word "state." We are not going to become provinces. I do not think we are going to give up the individual rights and liberties which we possess, and which those who have gone before us have fought for, to become mere provinces under a federal form of government. We may take the more dignified form of "states." END QUOTE And Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. DIBBS: I do not know the meaning of these words, and no hon. gentleman who has yet spoken has given any clear interpretation of them. It is sufficient for us, in enunciating a principle upon which the basis of a constitution shall be prepared, to see that the territorial rights and privileges of each colony shall be preserved to each state but when you come to consider the condition of a surrender, and the question of the power of enforcing such surrender is placed in the hands of the federal government, then your provinces or your states will be no party to the proceeding. END QUOTE
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The criteria, in my view is that the Westminster Act, not being an Constitution Amendment Act therefore couldnt in any shape or form amend the Commonwealth of Australia Constitution Act 1900 (UK). Neither could the purported Australia Act 1986 (UK and/or Cth version).
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The mere fact that the British Parliament had legislated to hold Australian foreigners in itself not being a Constitution Amendment Act could neither alter what the Commonwealth of Australia Act 1900 (UK) provided for and hence Australians remain to be Subjects of the British Crown. 5 If any British legislation somehow could override a constitution act then the British Government having signed the European Union constitution any European Union legal provision would then also be applicable to the Commonwealth of Australia, however this never can be so as while its legal provisions can be applied to the commonwealth of Australia it can only do so for so far it doesnt conflict with the provisions of the Commonwealth of Australia Act 1900 (UK) and any legislation enacted within this constitution. See also Aggregate Industries UK Ltd., R (on the application
of) v English Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168.
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In my view judicial officers, including those of the High Court of Australia who deliberately stray outside their allotted judicial powers as to inflict harm upon citizens must be deemed to act without judicial authority and be held liable as any other private citizen can be.
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Therefore a (Royal) Commissioner, and those assisting, in my view could also be held liable if acting without jurisdiction, etc. Whatever might be wrong within the building industry cannot excuse a court so judges, politicians, etc, then themselves to violate legal principles enshrined in the constitution (Commonwealth of Australia Act 1900 (UK)). If unlettered citizens are deemed to know the law and cannot excuse themselves for not knowing then those trained in the field of law hardly could excuse themselves for not knowing the law. In my view judicial officers who do not understand/comprehend the limits of their judicial powers do not belong on a bench. If they nevertheless persist to adjudicate then they better perform within their judicial powers and not despite of this.
http://www.independent.ie/irish-news/judge-court-orders-must-not-be-defied-by-mob-rule-30008826.html QUOTE Judge: court orders must not be defied by 'mob rule' Dearbhail McDonald, Legal Editor 14 February 2014
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A SENIOR High Court judge has warned that if "mob rule" is allowed to prevail by people refusing to obey court orders, then Ireland is on "a slippery slope to anarchy". High Court Judge Mr Justice Brian McGovern (pictured) spoke about a "worrying trend" where people apparently tried to prevent the execution of court orders by turning up in court in large numbers. Others might appear at sites where banks and creditors have received court orders to repossess land and property.
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Judge McGovern manages the weekly High Court bankruptcy list and deals with commercial and banking disputes. He was responding last night to questions about the so-called "Freemen of the Land" (FMOTL) movement at the inaugural Student Legal Convention held at University College Dublin. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p88
There have been more than 100 cases in the last year in which borrowers have used versions of Freemen arguments to resist possession by receivers and banks. The Freemen claim, among other things, that they don't recognise the authority of the courts.
Judge McGovern wondered if the purpose of the "unfortunate trend" where groups gather in large numbers at the back of courtrooms was "to try and intimidate the judge". "Court orders have to be obeyed, it's as simple as that," said Judge McGovern. " If we get to the point where a mob can appear in court or a mob can appear on land to resist a lawful order of the courts, well then the rule of law ceases to apply any more and then we are in the realm of anarchy". Judge McGovern said it is very important that the message goes out that court orders must be obeyed.
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"I sometimes feel that while these things may have an innocent enough beginning, they do get out of hand," he added. Judge McGovern also told lawyers and students that the prospects for Ireland's new personal insolvency regime were "promising" and could lead to a reduction in bankruptcy tourism.
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The judge said it is "immediately apparent" that the number of debtors seeking self-adjudication has significantly increased since the bankruptcy regime was reformed. Former banker and TD Peter Matthews said that hundreds of thousands of debtors had become "financial galley slaves" and estimated the Irish banking system needed another 53bn to deal with household and SME debt.
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Other speakers at the convention, sponsored by Dublin law firm A&L Goodbody, included Minister for Social Protection Joan Burton, Minister for Education and Skills Ruairi Quinn, Supreme Court judge Ms Justice Elizabeth Dunne and Billy Hawkes, the Data Protection Commissioner. Irish Independent END QUOTE
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Well, court orders issued by a private company obviously are not to be accepted as being court orders as they have no legal standing, yet they are deemed to be so of the purported Infringement Court. Moreover, while Civic Compliance Victoria is a registered trademark of the State of Victoria, it is not a registered business name, nor a registered business entity . And the Westpac bank account is titled Civic Compliance Vic which is not a registered trademark as such either. Therefore it is open to corruption that monies extorted from citizens are channelled back as kickbacks to politicians. I have published numerous documents about this at my blog www.scribd.com/inspectorrikati and so no need to include it all in this submission in full details. What ought to be of concern is hundreds of millions of dollars being garnished one way or another from citizens, not just Victorians, and placed in an unregistered business account rather than in the states Consolidated Revenue Funds as all taxes, and charges are supposed to be. As the Premier of Victoria himself stated that infringement notice payments are a form of taxation then clearly it should be paid into the Consolidated Revenue Funds. We have a cancer within our so called democracy because judges have ongoing ignored to conduct matters within the bounds of the constitution. A clear example is how the Infringement Court part of the Magistrates Court of Victoria has allowed a private company to access Magistrates Court files and issue court orders/warrants by computer generated decisions without any open court hearings, this even so Magistrates Courts are invested with federal jurisdiction and cannot conduct hearings but as an open court unless for special circumstances the court rules otherwise. Yet, no judicial so far had struck down those private company generated court orders/warrants? One then has to ask why not? People lose confidence and trust in the judiciary.
On the 5th September 2006, the High Court in Forge v Australian Securities and Investments Commission [2006] HCA 44 5 September 2006 C7/2005 made a binding ruling that there is a Kable Principle, and the Kable Principle is that Courts must be restored to what they were. 5
HANSARD 11-03-1891 Constitution Convention Debates QUOTE Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments. END QUOTE
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HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. SYMON.Then, I think myself, some confusion may arise in consequence of the reference to the state in the words "Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the regulation of its own legal proceedings. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are just to both. END QUOTE Hansard 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: END QUOTE
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I will now refer to Foster. 35

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court. END QUOTE
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Again:
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) QUOTE He must not consciously misstate the facts. He must not knowingly conceal the truth. He must produce all relevant authorities, even those that are against him. END QUOTE
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To me this also applies to any judicial officer. From The Age

http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html QUOTE
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The corporatising of our courts 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p90
Retirement speech of John K. Phillips, Supreme Court of Victoria March 24, 2005 In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of the court's independence.
For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to bite my tongue. I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and especially as I grew more senior, I have watched with some concern a change emerge in the perception of this court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have been unable to say much about it until now and when my resignation becomes effective, I fear that nobody will listen. As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularly the independence of this court, which must, from time to time, tell the political arms what they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have been sitting here, I have seen what appears to me to be some erosion of this court's independence. One of the most public examples recently was the refusal of the executive to accept the decision on remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and so ensuring the independence of which I am speaking. Less well known was the refusal of earlier governments to allow that the court's own chief executive officer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately answerable to the Department of Justice, which is what happened.
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That appears now, if I may say so, to have been but part of a movement towards this court's becoming absorbed into that department, and it is that to which I want to draw attention in particular; for such a movement must be reversed if this court is to have, and to keep, its proper role under the constitution. This court is not some part of the public service and it must never be seen as such. Established as a court of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control and to limit those other arms according to law and to that end to stand between those other arms and the citizen. Hence the emphasis on the court's independence, especially from the executive. Yet within the Department of Justice this court is now identified and dealt with - would you believe - as "Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately includes all three tiers of the court structure and VCAT.
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This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed by departmental regulation, even if a part of those fees is redirected to the court by the department at its discretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in disregard, if not in defiance, of the convention that such matters are for rules of court. And perhaps most troubling of all: the judges' computers, which were provided by and through the department, are but part of the departmental network. I do not say that departmental officers ordinarily avail themselves of the access that that affords; one hopes the department has some controls in place. But access is possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major litigant in this court, and sometimes on matters of critical import to the wider community. Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise than by argument in open court, but what has been happening is more insidious. What is evolving is a perception of the court as some sort of unit or functionary within the Department of Justice, a perception which is inconsistent with this court's fundamental role and underlying independence. Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p91
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from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it must be restored if the proper constitutional position is not 2to be subverted.
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The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be, impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and ideally, without hope of additional gain or reward from anyone, including any other arm of government. Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly so called, exercises administrative functions but not judicial power, and many things flow from that. Such a tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is fixed independently of the executive. You will see, now, how far the distinction between court and tribunal has become blurred. While the Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when, in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is altogether inconsistent with such a form of tenure. There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial and so must eschew all other interests which might one day give rise to conflict or the appearance of bias. In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded of the appointee. John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to the court.
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END QUOTE
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Constitutionally there is a division between the Judiciary and the legislators and executives. No Attorney-General has the constitutional powers to interfere with the judiciary but nevertheless the former Attorney-General Robert Hulls and the Police Minister at the time signed a charge with TENIX SOLUTIONS MIE Pty Ltd that it now can actually access court computers and use them to issue Magistrate Court of Victoria court orders as well as warrants, all without any open court hearing. As such the corruption into the judicial system is rife, because the government bodies allow a private corporation to not just access court files but to even issue (albeit unconstitutionally) court orders and warrants.
Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003 QUOTE Constitution needles to mention is a supreme law of the land. END QUOTE
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As I understand it the Infringement Court disregard proper required legal procedures and the Sheriffs Office a government Department and not at all a court officer as such but pretend to be so as it is not independent from the executives (government) then manipulate its powers and hold citizens at random destroying lives and families in the process. Yet courts fail to act to rectify this. In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) decision the Supreme Court of Victoria held that the State parliament of Victoria validly could legislate as to speed detection equipment where the Commonwealth had not done so. Despite what Dr Richard Brittain LLB Executive Officer, Legal Metrology National Measurement Institute Department of Innovation,
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Industry, Science and Research stated in his email to me dated 18 November 2013, I do not agree with certain claims he makes. Indeed, I have certain serious concerns as to some of the content of the National Measurement Act 1960 (as amended) but will not at this time go into those details as I intend to follow through with the Federal Government about certain issues. Save to say that as a CONSTITUTIONALIST I hold the view that no matter what the Commonwealth may or may not permit a State to do it cannot do so in violation of the constitution. Despite Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) I maintain that the Framers of the Constitution were very clear about matters and as an example they stated:
Hansard 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON.-I was going to explain when I was interrupted that the moment the Commonwealth legislates on this subject the power will become exclusive. END QUOTE Hansard 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will nevertheless remain in force under clause 100. Mr. TRENWITH.-Would the states still proceed to make laws?
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Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however, remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be all the more forced on the Commonwealth. END QUOTE Hansard 28-1-1898 Constitution Convention Debates QUOTE Mr. GLYNN (South Australia).-I desire to call the attention of the leader of the Convention to an apparent vagueness in the word "exclusive," to which reference has not yet been made. The word "exclusive," no matter at what time the power arises, whether on the coming into being of the Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does mean, that the power of the state to legislate ceases. On the question of whether the exclusive power under this provision comes into being with the establishment of the Commonwealth, I would call the attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive power arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties being vested in the Federal Parliament, but the second paragraph saysBut this exclusive power shall not come into force until uniform duties of customs have been imposed by the Parliament. It would appear that without that limitation the exclusive power would come into force at once, and the position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255] stands the state could no longer legislate with regard to Chinese. Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediately on the establishment of the Commonwealth. END QUOTE
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Hansard 28-1-1898 Constitution Convention Debates QUOTE Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon the establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be postponed until legislation takes place. But may you not then have a concurrent power, and may not the competence of the local Legislature to legislate in the matter be continued as long as the legislation is not in contradiction of federal legislation? Mr. DEAKIN.-That is the point. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p93
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Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may only come into being on the passing of legislation, may it not still be said that on the passing of exclusive legislation the power of the local Parliaments to legislate is extinguished, but that on the passing of concurrent legislation that power does not cease? Mr. REID (New South Wales).-I think that enough has now been said on this subject by honorable members both sides of the chamber, and I have only a very few remarks to offer. It appears that if the sub-section remains where it is state laws will be valid until federal legislation, but the states will not be able to alter or improve those laws during the possibly long interval between federation and federal legislation. Under these circumstances, as we leave to the states for an indefinite time the power of maintaining the laws they have, we should grant to them the power of improving those laws. It would recommend the Constitution more to a large number of persons if we put the sub-section in clause 52, thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislates for all. END QUOTE
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Hansard 22-9-1897 Constitution Convention Debates QUOTE The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the power, the states must retire from that field of legislation. END QUOTE
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Hansard 30-3-1897 Constitution Convention Debates QUOTE Mr. REID: We must make it clear that the moment the Federal Parliament legislates on one of those points enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal criticism, because there is no doubt, whatever that the intention of the framers was not to propose any complication of the kind. END QUOTE
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Hansard 30-3-1897 Constitution Convention Debates QUOTE The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the commonwealth with any more duties than are absolutely necessary. Although it is quite true that this power is permissive, you will always find that if once power is given to the commonwealth to legislate on a particular question, there will be continual pressure brought to bear on the commonwealth to exercise that power. The moment the commonwealth exercises the power, the states must retire from that field of legislation. END QUOTE
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Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will be exercised. END QUOTE
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Section 109 provides for existing State legislation that was enacted prior to the Commonwealth having commenced to legislate on a subject matter and this includes any Colonial Act that was amended after federation, whereas s108 of the constitution applies to any Colonial Act in force at the time of federation but not having been amended since then but provides for the right of a State to amend such Colonial law. I am well aware that the general misconception is that s51 is concurrent powers in that both the State and the Commonwealth can legislate on the same subject matter and in any conflict then s109 applies, however this is misunderstood because as the Framers of the Constitution made clear no new laws and as such the concurrent legislative powers only exist until the Commonwealth commences to exercise its legislative powers. When it does then it becomes an exclusive legislative power and the States must retire from this field/subject.
No new laws must include no amendments to existing legislation that was on foot prior to the Commonwealth commencing to legislate. In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) decision the Supreme Court of Victoria the Court completely failed to consider the above issues and as the High Court of Australia itself stated:
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Therefore the court may upon proper presentation of relevant details reconsider its position and accept that indeed Victorian legislation is unconstitutional, regardless even if the Commonwealth were to permit for State legislation, as the Commonwealth cannot overrule the constitution! The same applies to State land taxes which is unconstitutional because the Commonwealth commenced to legislate for the Land Tax Office to commence on 11 November 1910. Yet municipal/shire councils despite of being held in Sydney Council versus Commonwealth (1904) to exercise delegated State powers nevertheless continue to raise council rates the High Court of Australia held was a form of land taxation. While it may be argued that the Commonwealth in 1952 abolished land taxes, nevertheless once it become an exclusive federal law then it never can revert back to the States. The NSW Government under the then Premier Christina Kaneally then claimed (in its correspondence to me) that the legislative powers had been returned to it. No such constitutional provision exists, as to return legislative powers from the Commonwealth to the states. Even the issue of reference of legislative powers is that once the Commonwealth legislate it is beyond the States to interfere with this. Nevertheless we do not seem to have competent judges to administrate the true meaning and application of the constitution. So to say they are brainwashed during legal studies and further practices experiences failing to be able to understand/comprehend the true meaning and application of the constitution. This, as if they did understand/comprehend the true meaning and application of the constitution we wouldnt be in this gigantic legal mess. If therefore a judge and/or former judge cannot manage to understand/comprehend the true meaning and application of the constitution then I ask how can such a person than be deemed competent to be a commissioner in a Royal Commission, and perhaps in the process relies upon his own past ill-conceived judgments? Does this Royal Commission exist under the British Crown, as was at the time of the Royal Commission Act having been enacted, or somehow it now uses the act of a so called foreign monarch to suit the illusive Queen of Australia? Can the Royal Commission Act for and on behalf of a corporate government that not as such existed at the time the Royal Commission Act was enacted? One cannot so to say move the goal post to suit whomever is happening to be in Government. The constitution was not designed for this, in fact was specifically designed to avoid this kind of condition to be applied. Where can any citizen go to any court as to corruption such as referred to below?
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QUOTE
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AEC corruption Jim ----- Original Message ----- From: Andrew Moyle To: tim@colonial.net.au Sent: Saturday, February 15, 2014 9:42 AM Subject: AEC corruption Hi All, Attached is a letter I send to both the Bendigo Advert To Andrew K.Bruce & Gail H.Daniel Bodkin and 26 More... Today at 12:36 PM ----- Original Message ----From: Andrew Moyle To: tim@colonial.net.au Sent: Saturday, February 15, 2014 9:42 AM Subject: AEC corruption
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Hi All,
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Attached is a letter I send to both the Bendigo Advertiser and the Ballarat Courier one week ago. Neither paper has printed my letter. In my opinion the Australian Electoral commission is a biased, major party card carrying, corrupt department. This opinion is born out of knowledge of what the AEC has, or has not done, to minor parties and especially independents that have ran for election in the past. The link below is Clive Palmers recent address to the National Press Club. Finally we have somebody with the finances and where for all to take these people on. My knowledge of the shenanigans by the AEC goes as far back as Senator Len Harris proving in the High Court that the ballot tallys in Queensland for his re election to the Senate had been wrongly counted. I will also make clear that this is not a political message. I am not promoting or endorsing any political message or person/party, I am simply trying to expose the obvious corruption and dirty tactics used by the Australian Electoral Commission. This would appear to have been going on for a long time and I am sure there are many more horror stories relating to the AEC that you and I are not aware of. Desperate times call for desperate measures and the AEC, in their desperation to stop the likes of Clive Palmer from winning a seat in Parliament may be the straw that breaks the camels back. This man has the money and the smarts to get justice for all those in the past that have suffered at the hands of the AEC that did not have the money or notoriety to take them to task. What is now happening is the exposure of the corrupt practice of the AEC and their manipulations to ensure the left/right paradigm remains the dominant political structure. We now need to ask, who is pulling their strings and to what extent have they manipulated and altered past election results.
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The time has come that we all need to start becoming active for our future generations sake and dont sit idly by and let this corruption continue. Take action, even if it is to inform others. Write to you local poly and to the AEC and lets bombard our media to force them to report on this.
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http://www.abc.net.au/news/2014-02-13/national-press-club-clive-palmer/5258990
http://michaelsmithnews.typepad.com/.a/6a0177444b0c2e970d01a511638b95970c-pi
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This link is to a copy of the Electoral Commission page showing AusAID donations. Cheers Andrew
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END QUOTE
QUOT4E attachment (Email Saturday, February 15, 2014 9:42 AM)Re AusAID 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p96
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The Australian Electoral Commission has released its reports showing who received funding and from where for the last federal election. I must say that it beggars belief. The Australian Agency for International Development is a major donor to the Labor Party, Liberal Party, and the Greens. Who is this Agency? It is better known as AusAID. This government agency was established to promote democracy and party politics around the world. The Federal Government allocated over $300 million of our taxes last year to AusAid in which nearly $200 million was spent on employee benefits. Prior to the last federal election AusAid donated $2.2 Million dollars to the Labor Party, $1.1 Million to the Liberal Party, and $220,000 to the Greens. If you are a minor party or an independent you got zilch. Here we have the Government allocating funds in the budget only to have it returned to their partys to fund their election campaigns. Our taxes are being used to ensure the major partys get re-elected. This is incredibly immoral, unethical, and I believe, illegal, yet not a word from the Electoral Commission about this corrupt practice. The agency is supposed to promote free and fair elections in other parts of the world but sees fit to interfere with free and fair elections in Australia. Where is our media on this issue? Not a peep from any of them. I demand that my taxes are returned to consolidated revenue. I demand an explanation from my local member. And I demand an investigation into AusAid. Those in AusAID and those in their respective political partys that accepted this funding should be charged with conspiracy to defraud the Australian people. I would also like to see a statement from the Australian Electoral Commission explaining how they can ignore this corrupt practice.
END QUOT4E attachment (Email Saturday, February 15, 2014 9:42 AM)Re AusAID QUOTE
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The truth about elections has come out "RIGGED" how very sad for every Australian aldridgemark@bigpond.com http://www.abc.net.au/news/2014-02-13/national-press-club-clivepalmer/5258990 I would like all my supporters to watch this, then watch the link below, and then you will realize where some of our majo To Undisclosed-Recipient@ Today at 3:49 PM http://www.abc.net.au/news/2014-02-13/national-press-club-clive-palmer/5258990 I would like all my supporters to watch this, then watch the link below, and then you will realize where some of our major problems lay, between Clive's evidence and mine, we no longer live in a democracy, therefore we live under a dictatorship, and just how evident is that, Clive's speech takes 20 minutes, mine 10. http://www.youtube.com/watch?v=BfYazDsFMPU Spread this far and wide, and consider becoming a scrutineer, because in the last bi-election where I near beat Labor in their safest seat in SA, over 30% of the vote was missing, in the state election over 22,000 BALLOT PAPERS went missing, over 77,000 names went missing of the electoral roll.
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The media will not cover all this, so we must share this and also ask our friends to do the same, I have exposed this for years, Clive has the money and the voice now to expose it, and every Australian should back us up. Mark Aldridge 08 82847482 / 0403379500
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END QUOTE
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My various submissions to the JSCEM (Joint Standing Committee on Electoral Matters in 2002 about these and other issues are well documented but it is so to say to complain to Dracula that he is a blood sucker. Not getting anywhere with it. And on 19 July 2006 when I placed matters before the County Court of Victoria my appeals were upheld unchallenged by any of the Attorney-Generals or the AEC and as such I succeeded on all matters pertaining the appeals. Yet, nothing changed because as I view it the corrupt manner in which the AEC operates. https://au-mg6.mail.yahoo.com/neo/launch?.rand=bcaul03hi4k6d QUOTE
Tony Abbott is negotiating in secret. (2) Jim ----- Original Message ----- From: Paul Ferris, SumOfUs.org Sent: Saturday, February 15, 2014 9:07 AM Subject: Tony Abbott is negotiating in secret. Tony Abbott's Trade Minister is jetting off to Sing To Andrew K.Bruce & Gail H.Daniel Bodkin and 26 More... Today at 12:24 PM ----- Original Message ----From: Paul Ferris, SumOfUs.org Sent: Saturday, February 15, 2014 9:07 AM Subject: Tony Abbott is negotiating in secret. Tony Abbott's Trade Minister is jetting off to Singapore to secretly negotiate the world's biggest corporate power grab, the TPP. They could be about to hand power to secret courts to overturn Australian laws that big business thinks are unfair. Can you tell Tony Abbott and his minister to stand up for Australian democracy and to reject the TPP?
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Tony Abbott's trade minister is about to sign a secret, global pact to allow corporations to sue the Australian government for billions -- just for passing laws to protect our health or the environment.
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The secret meeting in Singapore is happening next week. Tony Abbott wants us to believe the 12-country Trans-Pacific Partnership (TPP) is all about getting a better deal for ordinary Australians. But the truth is that it could end up being one of the biggest corporate power grabs in a generation.
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Abbott and his cronies are refusing to make the deal public (although corporate lobbyists seem to be getting the inside track) -- making it hard to know just what's in the TPP. But leaks so far indicate this is bad news. Thats why Tony Abbott wants it to stay confidential -- hed prefer to quietly sign away our rights without a big fuss.
This deal is too important to leave to the politicians: it could affect the lives of Australians for generations to come.
Can you tell Tony Abbott not to sign away our democratic rights and reject the TPP? The TPP is being negotiated by 12 countries from around the Pacific. Theyre discussing everything from restricting internet freedoms to weakening environmental protections. But thats not the worst of it. One of the key bits of the deal is a system that will allow the worlds biggest companies to overturn our democratically decided laws.
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Tony Abbott hasnt exactly shown himself to be a pro at foreign affairs. Weve seen him time and time again make mistakes on the international stage. Can we be sure to trust Tony Abbott to negotiate the best deal for the Australian people, especially while he refuses to be open about what hes actu ally doing?
Together we decided that working on stopping unfair global trade deals as one of our top priorities for 2014. So weve been busy working on a plan that stretches right around the globe and were going to need lots of help. Already, SumOfUs members have been active in the USA calling on Congress to refuse Obama the right to negotiate without consent. Were also busy building opposition in Canada and in New Zealand too. Now its our turn to send a clear message to our government -- say no to the TPP.
Tony Abbott -- reject the corporate power grab and say no to the TPP.
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Thanks for all you do, Paul, Martin, Hannah and the rest of us.
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More Information:
Mixed feelings on promise of trade deal, The Australian, 05 February 2014
'Toothless' environment protections in secretive global trade pact TPP leaked all over the web, The Register, 15 January 2014
WikiLeaks publishes secret draft chapter of Trans-Pacific Partnership, The Guardian, November 2013.
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SumOfUs is a worldwide movement of people like you, working together to hold corporations accountable for their actions and forge a new, sustainable path for our global economy. Please help keep SumOfUs strong by chipping in $3.
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Reply, Reply All or Forward | More Admin The LNP is just as devious, deceitful and treasonous as the ALP! From: Carol P <prendyspot@gmail.com> Date: Sat, 15 Feb 2014 17:38:25 +1100 To: Brian McDermott <admin@freestatevoice.com.au> Subject: R To TRADITIONAL CHURCH MILITANTSC Q FREESTATE MEMBERSPOLITICIANS Today at 5:54 PM The LNP is just as devious, deceitful and treasonous as the ALP!
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From: Carol P <prendyspot@gmail.com> Date: Sat, 15 Feb 2014 17:38:25 +1100 To: Brian McDermott <admin@freestatevoice.com.au> Subject: Re: FW: Tony Abbott is negotiating in secret. The Queen and Royals from all Nations run this country. It's time we took it back
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The Banksters (which includes the Chinese, NOT the Manchurians), are private corporations, which are a law unto themselves, just like taxi-drivers, however, they DO come under the Corporations Act.....everywhere. Once people discover this, there will be hell to pay by the banksters everywhere, but alas, Aussies are too busy chasing that "Aussie Dream". You have to be asleep to have dreams. EVERYBODY needs to read "Your Will Be Done", thoroughly, followed by Jeffrey Foley's Writ of Habeas Corpus and Sir Harry Gibb's "Explanatory Letter" circa 2005. p99 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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People who are actual thinkers will get it eventually, if they can actually read and then read between the lines. All I need to do what needs to be done, and should have been done years ago, is to raise a ClassAction against ALL political parties in this country, the Crown and its entities, and the Post Office. It seems I am the only one with testicles to do this, and it cannot be done by one person alone. Pity, because the paperwork has been ready for 4 years, but nobody can read it, except the 15 judges at the World Court. I hope somebody else gets it before I die, and also before everything I have of value ceases to be stolen or copied!!!
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On 15 February 2014 11:17, Admin <admin@freestatevoice.com.au> wrote: NOT ONLY THAT, BUT OUR INTELLECTUAL PROPERTY (INVENTIONS) WILL BE GRABBED (STOLEN) BY BTHE BIG CORPORATIONS!
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WE WARNED YOU MANY TIMES BEFORE, TONY ABBOTT IS A DECEITFUL OPERATOR. HE ADMITTED TO ME PERSONALLY IN 1998-9 IN BRISBANE, THAT HE WAS UP HERE ON ONE NATION BUSINESS, BUT I HAVE ENOUGH EXCUSES TO CHARGE MY EXPENSES TO MY (POLITICAL EXPENSE ACCOUNT.
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THAT IS DECEPTION KNOWN IN LAW AS MISLEADING AND DECEPTIVE CONDUCT. YOU CAN SEE IT IN HIS EYES. HE IS A DECEITFUL SOB.
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HE IS A RHODES SCHOLAR, WHICH MEANS HE HAS BEEN INDOCTRINATED TO BELIEVE THAT ONLY A ONE WORLD GOVERNMENT IS THE ANSWER. BOB HAWK IS ALSO A RHODES SCHOLAR. NEED I SAY MORE?
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------ Forwarded Message From: Carol P <prendyspot@gmail.com <http://prendyspot@gmail.com> > Date: Sat, 15 Feb 2014 09:40:56 +1100 To: <undisclosed-recipients:;> Subject: Fwd: Tony Abbott is negotiating in secret.
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If you think your freedom is not worth fighting for, then stay where you are and do nothing ! If you believe in freedom then please sign this. Between all of us, it might just get somewhere Tony Abbott's Trade Minister is jetting off to Singapore to secretly negotiate the world's biggest corporate power grab, the TPP. They could be about to hand power to secret courts to overturn Australian laws that big business thinks are unfair. Can you tell Tony Abbott and his minister to stand up for Australian democracy and to reject the TPP? <http://act.sumofus.org/go/3567?t=1&akid=3955.1410507.o0pg5f> Carol, Tony Abbott's trade minister is about to sign a secret, global pact to allow corporations to sue the Australian government for billions -- just for passing laws to protect our health or the environment.
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The secret meeting in Singapore is happening next week. Tony Abbott wants us to believe the 12-country Trans-Pacific Partnership (TPP) is all about getting a better deal for ordinary Australians. But the truth is that it could end up being one of the biggest corporate power grabs in a generation.
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Abbott and his cronies are refusing to make the deal public (although corporate lobbyists seem to be getting the inside track) -- making it hard to know just what's in the TPP. But leaks so far indicate this is bad news. Thats why Tony Abbott wants it to stay confidential -- hed prefer to quietly sign away our rights without a big fuss.
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This deal is too important to leave to the politicians: it could affect the lives of Australians for generations to come.
Can you tell Tony Abbott not to sign away our democratic rights and reject the TPP? <http://act.sumofus.org/go/3567?t=2&akid=3955.1410507.o0pg5f> The TPP is being negotiated by 12 countries from around the Pacific. Theyre discussing everything from restricting internet freedoms to weakening environmental protections. But thats not the worst of it. One of the key bits of the deal is a system that will allow the worlds biggest companies to overturn our democratically decided laws. Tony Abbott hasnt exactly shown himself to be a pro at foreign affairs. Weve seen him time and time again make mistakes on the international stage. Can we be sure to trust Tony Abbott to negotiate the best deal for the Australian people, especially while he refuses to be open about what hes actually doing? Together we decided that working on stopping unfair global trade deals as one of our top priorities for 2014. So weve been busy working on a plan that stretches right around the globe and were going to need lots of help. Already, SumOfUs members have been active in the USA calling on Congress to refuse Obama the right to negotiate without consent. Were also busy building opposition in Canada and in New Zealand too. Now its our turn to send a clear message to our government -- say no to the TPP. Tony Abbott -- reject the corporate power grab and say no to the TPP. <http://act.sumofus.org/go/3567?t=3&akid=3955.1410507.o0pg5f> Thanks for all you do, Paul, Martin, Hannah and the rest of us.
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More Information: Mixed feelings on promise of trade deal <http://act.sumofus.org/go/3568?t=4&akid=3955.1410507.o0pg5f> , The Australian, 05 February 2014 'Toothless' environment protections in secretive global trade pact TPP leaked all over the web <http://act.sumofus.org/go/3569?t=5&akid=3955.1410507.o0pg5f> , The Register, 15 January 2014 WikiLeaks publishes secret draft chapter of Trans-Pacific Partnership <http://act.sumofus.org/go/3570?t=6&akid=3955.1410507.o0pg5f> , The Guardian, November 2013.
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SumOfUs is a worldwide movement of people like you, working together to hold corporations accountable for their actions and forge a new, sustainable path for our global economy. Please help keep SumOfUs strong by chipping in $3. <https://action.sumofus.org/a/donate-tosumofus-wrapper/?sub=wrapper&t=7&akid=3955.1410507.o0pg5f>
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This email was sent to prendyspot@gmail.com <http://prendyspot@gmail.com> . | Unsubscribe <http://sumofus.org/unsubscribe?email=prendyspot@gmail.com&t=8&akid=3955.1410507.o0pg5f>
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-Kind Regards Carol Phone: 02 9945 0841 Mobile: 0466 977 822 Get Paid When You or others Use the Internet ! Click here to find out How: www.genius.goyobsn.com <http://www.genius.goyobsn.com> <http://www.onlinecashoverflow.com/> 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p101
Certified Therapeutic Essential Oils - www.mydoterra.com/carolprendergast <http://www.mydoterra.com/carolprendergast> <http://www.mydoterra.com/carolprendergast> <http://genius.gosmartmedia.com>
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------ End of Forwarded Message -Kind Regards Carol Phone: 02 9945 0841 Mobile: 0466 977 822 Get Paid When You or others Use the Internet ! Click here to find out How: www.genius.goyobsn.com <http://www.onlinecashoverflow.com/> Certified Therapeutic Essential Oils - www.mydoterra.com/carolprendergast <http://www.mydoterra.com/carolprendergast> <http://genius.gosmartmedia.com>
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http://www.theguardian.com/media/2013/nov/13/wikileaks-trans-pacific-partnership-chapter-secret WikiLeaks has released the draft text of a chapter of the Trans-Pacific Partnership (TPP) agreement, a multilateral free-trade treaty currently being negotiated in secret by 12 Pacific Rim nations. The full agreement covers a number of areas, but the chapter published by WikiLeaks focuses on intellectual property rights, an area of law which has effects in areas as diverse as pharmaceuticals and civil liberties.
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Negotiations for the TPP have included representatives from the United States, Canada, Australia, New Zealand, Japan, Mexico, Malaysia, Chile, Singapore, Peru, Vietnam, and Brunei, but have been conducted behind closed doors. Even members of the US Congress were only allowed to view selected portions of the documents under supervision. "We're really worried about a process which is so difficult for those who take an interest in these agreements to deal with. We rely on leaks like these to know what people are talking about," says Peter Bradwell, policy director of the London-based Open Rights Group. "Lots of people in civil society have stressed that being more transparent, and talking about the text on the table, is crucial to give treaties like this any legitimacy. We shouldn't have to rely on leaks to start a debate about what's in then."
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The 30,000 word intellectual property chapter contains proposals to increase the term of patents, including medical patents, beyond 20 years, and lower global standards for patentability. It also pushes for aggressive measures to prevent hackers breaking copyright protection, although that comes with some exceptions: protection can be broken in the course of "lawfully authorised activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes". WikiLeaks claims that the text shows America attempting to enforce its highly restrictive vision of intellectual property on the world and on itself. "The US administration is aggressively pushing the TPP through the US legislative process on the sly," says Julian Assange, the founder and editor-in-chief of WikiLeaks, who is living in the Ecuadorean embassy in London following an extradition dispute with Sweden, where he faces allegations of rape. "If instituted," Assange continues, "the TPPs intellectual property regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if youre ill now or might one day be ill, the TPP has you in its crosshairs."
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Just Foreign Policy, a group dedicated to reforming US foreign policy, managed to crowdfund a $70,000 (43,700) bounty for Wikileaks if the organisation managed to leak the TPP text. "Our pledge, as individuals, 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p102
is to donate this money to WikiLeaks should it leak the document we seek." The conditions the group set have not yet been met, however, because it required the full text, not individual chapters. Related to the TPP is a second secret trade agreement, the Transatlantic Trade and Investment Partnership (TTIP), which ties together regulatory practices in the US and EU. George Monbiot, writing in this paper, referred to the treaty as a "monstrous assault on democracy". Ken Clarke, the minister without portfolio, replied that it "would see our economy grow by an extra 10bn per annum". Campaign group Fight for the Future has already collected over 100,000 signatures in an online petition against what it calls the extreme Internet censorship plan: contained in the TPP.
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Evan Greer, campaign manager for Fight for the Future, said: "The documents revealed by WikiLeaks make it clear why the US government has worked so hard to keep the TPP negotiatons secret. While claiming to champion an open Internet, the Obama administration is quietly pushing for extreme, SOPA-like copyright policies that benefit Hollywood and giant pharmaceutical companies at the expense of our most basic rights to freedom of expression online."
END QUOTE 15 Was AidAID used as a political slush fund to donate unconstitutionally to political parties both overseas and within Australia? To what extend did this and other government Departments use such a slush funds under the pretext of annual services cost? How much indeed are public servants employed not to work as a public servant for government purposes but in fact are no more but employed to serve the specific interest of the political party/parties in power? Hence their resignation when there is a change of Prime Minister. This, even so a Prime Minister is commissioned to serve as a constitutional advisor to the Governor-General irrespective of his/her political association as like any other Minister of the Crown and as such should not involve employees (public servants) based on party issues. How much of taxpayers moneys was used for political advertising, etc, for the political party in power, rather than for ordinary annual expenditure unrelated to the political association of any Minister/Member of Parliament?
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Mr. WISE: I can see no other course. It has taken 100 years for the United States to pass a Civil Service Act, and now it is not of very much value. If we get a party system, and follow it out in the appointment of civil servants, we will be initiating a system of corruption which would gain strength every day. END QUOTE
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We have now the gigantic rip off by political parties through the public service and its Departments and the Governor-General as Chief executive officer has done absolutely nothing to address this issue.
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We never can nor must accept what constitutional arsonist desire to make from the constitution. The irony is that the one as I view it gangster union, being political parties union, is never investigated for its own unconstitutional and illegal conduct of which I have written in my books in the INSPECTOR-RIKATI series on certain constitutional and other legal issues so often. The unconstitutional deposit for candidates now being used to make it a union only Parliament, something politicians oppose for building sides, etc. The unconstitutional above the line voting pattern which denies equality for candidates. The unconstitutional payments of salaries kind of income to Members of Parliament, both during and after having left parliament. The unconstitutional payments to former Ministers, etc. The unconstitutional Gold Card benefits to members of family of current or former members of parliament.
The kick back is huge and yet no Royal Commission into any of these matters, and there is a lot more. Why not one may ask as this goes to the root of democracy. 5 I never earned a living from any building work side and so have or had any financial interest regarding any building site and/or its unions. To me what is happening with the Parliament and the government and how we are being managed by a corporate government and corporate courts is far more serious and devastating then whatever those involved in the building industry can accomplish. I do not seek to ignore nor approve of any illegal conduct by any building industry but as it appears to me they were taught a good lesson by the political unions how to rip of others as politicians are ongoing doing. The mere fact that the Queen may have (through the Governor-General or otherwise) provided for Royal Assent in itself cannot validate any legislation that is in violation to the legal principles embedded in the constitution. Indeed, in Wakim HCA 27 of 1999 the Cross Vesting Act was struck down as being unconstitutional regardless it had been given Royal Assent, this because the Monarch cannot override the legal principles embedded in the constitution. In the wood case the fact that the Governor-General had chosen Mr Wood to take up a seat in Parliament ultimately had no bearing upon the validity or invalidity of him sitting in Parliament as such. Therefore, any Royal assent that may have been given by or on behalf of the Monarch cannot validate any legislation in violation to the legal principles embedded in the constitution! One has to question where was the authorisation by Parliament by way of Appropriation Bill for Mr Joe Hockey as treasurer to give away $8 billion to a private company called Reserve Bank of Australia within days of having been commissioned as Treasurer, when no Parliament was sitting to approve this, neither could it be in my view constitutional permissible? Not a single building union could in my view what I call the mother of all rip offs of taxpayers Consolidated Revenue Funds by the current political parties/unions in power!
Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. REID.-I suppose that money could not be paid to any church under this Constitution? Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them. END QUOTE
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Well we now have tax free incomes for religious bodies, this even so they are trading as any other business, and so taxpayers are force to fund religious entities by backdoor manner In my view the $8 billion payment was unconstitutional, as I view the same with the recent Cadbury payment and the proposed guarantee of Qantas, a private company. But if we follow the Sue v Hill doctrine that if you long enough distort the true meaning and application of the constitution then it will become how the constitution applies, then why have a constitution at all? Set out of the High Court Australia jurisdiction and validity of judgment
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http://en.wikipedia.org/wiki/Judicial_activism
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Definitions[edit]
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Black's Law Dictionary defines judicial activism as a "philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other factors, to guide their decisions."[5]
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Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:[6] majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.[7] Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with";[8] likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like."[9] Supreme Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."[10][11]
Debate[edit]
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Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.[12] Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times. 20 A third view is that so-called "objective" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices."[13] Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.[14] Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.
Examples[edit]
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The following have been cited as examples of judicial activism:
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Brown v. Board of Education 1954 Supreme Court ruling ordering the desegregation of public schools.[15] Roe v. Wade 1973 Supreme Court ruling decriminalizing abortion.[16] Bush v. Gore The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was elected President.[17]
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Citizens United v. Federal Election Commission 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech.[18][19] Hollingsworth v. Perry 2010 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage.[20] Contempt of Court and disqualification of Pakistani Prime Minister Yusuf Raza Gilani by the Supreme Court of Pakistan chief justice Iftikhar Muhammad Chaudhry
[21]
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END QUOTE
http://www.innertemple.org.uk/downloads/members/lectures_2012/lecture_dyson.pdf
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Lecture Night 23 January 2012 Justice Dyson Heydon AC Threats to Judicial Independence The Enemy Within
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It sets out how some judges basically overpower other judges and so to say by this dictate the ruling of the Court. For many persons Justice Haydon (if he still can be referred to as such as he left the bench) speech may be illuminating what goes on at the Bench but I view he overlooked critical issues that often can be the core problem in misjudgements. As a (retired) professional advocate I would, as I have done in this submission, quote specific parts of what the Framers of the Constitution stated, as I likewise would do in regard of references to specific Authorities. In one case before His Honour Guess J I state (of head) a 2 lined paragraph of the Authority of Prowse v Prowse. His Honour immediately went on the attack that he was the barrister in that case (he lost the case and was severely criticised by the 3 judges) and that no such issue then was before the Court. I then produced a Law Report and read out the same. His Honour then admitted that I appeared to know the case better than he did. And this is a problem that often seeps into hearings where a person presents references to Authorities but does not set out what part he/she precisely is referring to and then leaves it up to the judge(s) to assume whatever part is relevant. Because of the High Court of Australia limiting generally the application, case references, etc, to a mere 10 pages, then this prevents any inclusion of specific quotations critical to the case at hand. Judges then assume that the reference to the Authority is what they may recall from the Authority. Because the constitution was written so that unlettered persons could understand it then I view litigation must be conducted in the same manner. My writings, including in my books published in the INSPECTOR-RIKATI series on certain constitutional and other legal issues are therefore written in plain English language as much as possible. In a format that is easy to follow for unlettered persons. Hence, the problem with the Courts (in particular the High Court of Australia) are often that they prevent a party to set out what that party really is on about and curtailment of their presentation can and does undermine the success of their case. We also have this inhered superiority of judicial officers over those who are appearing at the bar table. More like I am the expert and knows it all and you dont know what you are talking about. Indeed, I had heated exchanges at the bar table with judicial officers, albeit the exchange came from the bench and I remained cool and calm. As when a judicial officer discovers to be in
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the wrong they become at time verbally aggressive, etc. Even to argue that I am in contempt of court, upon which I then point out that setting out the fact never can be contempt of court. In the Colosimo case as an example the judicial officer (as already 5 contempt hearings had been held against Mr Frank Colosimo while at that time he was represented by a barrister and placed under administration on evidence of 2 medical experts) I then exposed that the judicial officer had in the previous hearing claimed that Frank Colosimo had been convicted of contempt, and the medical assessments had been made upon this that Frank Colosimo refused to acknowledge that he was convicted and in breach of law, whereas I pointed out that despite more then 20 lawyers involved against Frank Colosimo no one ever had realised that they had failed to charge him. They had failed to realise the purported evidence was no evidence at all. They had failed to realise that council instigated legal proceedings against Frank Colosimo one week after they issued a certificate that he had been incompliance with relevant laws. What we therefore had was the herd syndrome where very judicial officer as well as every lawyer involved as well as the medical profession were dealing with Frank Colosimo not on basis of true facts but upon an illusion. Little wonder that after I took over the case all orders against Frank were set aside. Opposing counsel filed more than an inch (2.5 millimetres) pile of authorities when presenting her case only for me to flick through it and notice a judgment that was actually defeating counsels submissions. Regretfully the procedures are such that ordinary litigants would be unable to discover this in mere seconds. In this case as a Professional Advocate I alerted Her Honour Harbison J to this, with the desired response in favour of Mr Frank Colosimo. The relevance is that I view the High Court of Australia in its decision in Sue v Hill failed considerably to deal with facts. The judges seems to be so to say obsessed with arriving at a conclusion that the Commonwealth of Australia had become an independent nation as like it could arrive at a conclusion in litigation before it that a tenant somehow had become the landlord. Where was it that the judges considered the constitution from its true meaning and application of the constitution? In my view it is totally irrelevant what may have transpired since the constitution was in place if the conduct was in violation to constitutional provisions. Yet, somehow the judges were more concerned about the so called Australian act rather than how the true meaning and application of the constitution was and how then from there matters may have developed. A tenant may pursue to have certain repair performed at his/her own cost and the landlord may agree to this but that cannot make the tenant to be then the landlord. Likewise, the Commonwealth of Australia Constitution Act 1900 (UK) was designed to give the People of Australia certain political freedoms but this didnt mean that then the politicians and judiciary could rob them of their British nationality rights. A Royal Commission therefore must not assume that merely because there is a Royal Commission Act 1902 and other legal provisions that then it can stampede anyone it holds falls within the authority of the Royal Commission without bothering to check the facts. The Royal Commission Act 1902 was given Royal Assent under the authority of the British Crown. Unlike the Singaporean constitution (quoted below) no such provision exist as to transfer the meaning and application of the Royal Commission Act 1902 to the purported independent nation Commonwealth of Australia. Here we have a shift from a POLITICAL UNION under the British Crown with a public Government and public judiciary to a purported INDEPENDENT NATION as a country also called Commonwealth of Australian monarchy where no single constitution amendment act was ever enacted to facilitate for this. Are we then to have a Royal Commission acting within the authority of the British Crown but conducting hearings and issuing summonses, etc, under the purported Australian Crown? There
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seems to be a complex confusion as to identity and I for one cannot accept that a commissioner acting within the powers provided for within Royal assent of the British Crown for the POLITICAL UNION Commonwealth of Australia then somehow can conduct matters under the Queen of Australia for an INDEPENDENT Commonwealth of Australia as a country.
WATSON v_ LEE (1979) 144 CLR 374;( JUDGE3 STEPHEN J.) QUOTE As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB 349, at p
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361 , speaking there of sub-delegated legislation, "there is one quite general question . . . of supreme importance to the continuance of the rule of law under the British constitution, namely, the right of the public affected to know what that law is". The maxim that ignorance of the law is no excuse forms the "working hypothesis on which the rule of law rests in British democracy" but to operate it requires that "the whole of our law, written or unwritten, is accessible to the public - in the sense, of course, that at any rate its legal advisers have access to it at any moment, as of right". END QUOTE
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QUOTE it requires that "the whole of our law, written or unwritten, is accessible to the public - in the sense, of course, END QUOTE
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I am not aware that those lawyers who were admitted to the bar giving alliances to the British Crown somehow made a new alliance to the Queen of Australia since then. Indeed, the judges of the Sue v Hill case themselves were under the British Crown admitted to the Bar and somehow by their own judgment had become under the Queen of Australia and transferred their judicial authority from the Commonwealth of Australia a POLITICAL UNION to the Commonwealth of Australia a purported INDEPENDENT country, This even so the Framers of the Constitution made clear no such powers existed within the constitution. Persons, like myself who had naturalised in 1994 under the British Crown, without being allowed any input or say otherwise had been robbed of their British nationality merely by a unilateral decision by judges of the High Court of Australia without having been given any opportunity to present their cases. In my view, no matter what the High Court of Australia may have held to be in the Sue v Hill case (a matter heard on behalf of the Parliament and so a political matter not a judicial matter as such) judges since should not have followed that decision merely because it was a majority decision where clearly on basis of factual matters the decision was plainly wrong!
QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
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That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to my mind. In my judgment that case was wrongly decided, and should be overruled. END QUOTE
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QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278 The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately right.. Whatever else may be said with respect to previous decisions - and it is necessary here to consider the principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p108
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court should be expressed. END QUOTE
The Commonwealth Electoral Act 1918 provides that the High Court of Australia sitting as a Court of Disputed Returns can adjudicate for and on behalf of the politicians (Parliament), and as such this is then not a judicial decision but a political decision. Holmes v Angwin, (1906) 4 (Pt 1) CLR 297 at 309. Barton J said; "The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants." What we have is a complex situation where the High court of Australia somehow seems to be prevented by the Commonwealth Electoral Act 1918 to exercise original jurisdiction as to certain constitutional matters and legislative provisions, precisely in violation to the constitution! When there is a conflict of law such as involving the Governor-General and Governors then this cannot be interfered with by the Court of Disputed Returns as legislative provisions of the Parliament are not a matter that are a in House matter of either houses of Parliament. Commonwealth of Australia Constitution Act 1900 (UK)
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47 Disputed elections 25
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of
END QUOTE

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49 Privileges etc. of Houses

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
END QUOTE
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The Governor-General and the Governors failing to comply with the provisions of the constitution, as well as the embedded legal principles, and so any legislation enacted within it surely cannot be held to fall within section 49 of the constitution nor that within section 47 of the constitution then the Parliament can undermine the constitutional provisions of s75(v), as it did in my case, at least going by the high Court of Australia decision. The High Court of Australia being part of the constitution and not being part of the Government of the Day, therefore cannot be controlled by the Parliament nor the executives as to exercising original jurisdiction. However this is now eventuating. Yet in Sue v Hill the High Court of Australia then dealing with a case stated from the Court of disputed Returns somehow then decide to rob me of my British nationality and so others without any of us to have any say or being given any right to challenge this. In fact it concocted the Commonwealth of Australia to be an independent nation this even so the constitution gives no such judicial powers to make such a judicial statement.
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Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759 QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p109
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The fundamental rule of English (Australian) law is that " No man can be a judge in his own case". It has long been held that if there is bias or the appearance of bias such as to deny justice or create the impression that justice has not been done, then that bias, or apparent bias, is sufficient to invalidate the decision of those who made the decision. END QUOTE Reg v. The London County Council (1894) XI .L.R. 24 Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17. Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17. Black v. Black (1951) N.Z.L.R. 723 Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458
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QUOTE R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236 However in some cases the words or conduct of a judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v Watson; Ex Parte Armstrong (132 CLR at 262). The critical question, however, is not whether a judge believes he or she has prejudged a question, but whether that is what a party or the public might reasonably suspect has occurred (see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a judgement cited with approval by this court in R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might well convey the impression of "protesting to much... END QUOTE
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Judges of the High Court of Australia having made their contemporary decision about the purported state of the Commonwealth of Australia including citizenship by this clearly would have to contradict their own judgments if they were to deal with the constitutional issue of citizenship. This is an implied bias!
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Where is the INDEPENDENCE of the judiciary if one had to appeal to the High Court of Australia as a judiciary which had the same judges already pronounced their judgment in a political manner?
Commonwealth Electoral Act 1918

Act No. 27 of 1918 as amended QUOTE
353 Method of disputing elections

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(1) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.
END QUOTE 45 Again: QUOTE and not otherwise END QUOTE It is therefore critical for any Royal Commission to set out if it is conducting matters within the framework of the Commonwealth of Australia Constitution Act 1900 (UK) under the British Crown or under some misconceived identity.
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The mere fact that the Parliament may have provided for the High Court of Australia to act as a COURT OF DISPUTED RETURNS itself cannot override the true meaning and application of the constitution that the Court must be and must be seen to be IMPARTIAL. It is very obvious that if a person, like myself were to challenge the decision in Sue v Hill, on legal grounds then there is no longer any INDEPENDENT judiciary existing to hear the case. The danger is that if judges are acting for the Parliament (persona designata) and portray this as a judicial decision rather than a political decision then in effect the Parliament could exercise itself judicial matters, as the High Court of Australia gave it this power by Sue v Hill. Nothing prevents the Parliament to replace/substitute s353 with that a Court of Disputed Returns now is to be conducted by the Parliament itself with all such powers of adjudication that was exercised by the Court of Disputed Returns when matters were heard and determined by the High Court of Australia sitting as a Court of Disputed Returns.
Hansard 15-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE [start page 681] Mr. BARTON: I would ask Sir Edward Braddon not to have his amendment formally put. This matter was also a subject of very considerable discussion in the Constitutional Committee, and the clause now represents the result of that discussion It amounted to this: There were a good many of us who thought that matters of this kind should be decided by the Judges, instead of what we have found to be a fallacious tribunal, a Committee of the Houses of Parliament. At the same time, it was thought better to leave the matter as it stands in the Constitution, only you must put a proviso in the beginning. That is to say, the words will be placed in the section, "until The Parliament otherwise provides." It seems to me that it is a matter for the Parliament of the Commonwealth to determine whether the Houses, after they are called together, shall determine this question, or whether the Judges should do it. It is a matter for the Federal Parliament to deal with. It increases the freedom of action of the Parliament of the Federation, and for that reason it is also desirable to leave it in the hands of the Parliament. Mr. SYMON: It is quite open to the Parliament to decide.
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Mr. BARTON: It is quite open to it, and if the Parliament will not undertake the matter itself, it will delegate it to the High Court. But that is a matter of internal arrangement. END QUOTE
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Following the Wakim case principle that anyone not party to the previous litigation on a constitutional issue can challenge the matter, I did so in the litigation before the County Court of Victoria on 19 July 2006 and succeeded unchallenged in this! As correspondence to the CEA legal representatives quoted below underlines. It should be understood that the litigation before the High Court of Australia sitting as a Court of Disputed Returns is different than that of the High Court of Australia sitting as a High Court of Australia. Likewise as I experienced the Federal Court of Australia sitting as a Court of Disputed Returns, where incidental it had no forms to file and I was directed by the Registrar of the Federal Court of Australia to design my own forms to loge the dispute, as I did) then we have that the sittings are incidental to legislative powers and not incidental to judicial powers of such Court of Disputed Returns. This is also translated at times in its decisions as dictated by the Commonwealth Electoral Act 1918 that a Court of Disputed Returns can dismiss a petition regardless if it is held a valid petition if it holds that the election result would not be any different to alter the outcome. http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-zdocs/ReviewoftheRoyalCommissionsActIssuesPaperSub190509.pdf
QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p111
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9. Despite the fact that the skills and attributes of judicial officers appear to frequently coincide with those required by chairs of public inquires, the involvement of judges in such inquires has been historically controversial.
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10. Royal Commissions and other public inquires are activities based on the powers of the executive branch of government. As the High Court stated in Lockwood v Commonwealth: The duties of the commission are to inquire and report The commission can neither decide not determine anything and nothing that it does can in any way affect the legal position of any person. Its powers and functions are non judicial. 2 11. It has been settled in law since at least 1906 that individual judges, in their own personal capacity as persona designata, are free to accept these types of administrative posts. 3 12. One argument against their involvement, however, concerns the perceived negative impact on judicial independence arising from a judicial officer being appointed to a potentially controversial non-judicial position.
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13. According to the theory of judicial independence and separation of powers, any role attracting unusual public controversy to a judge is capable of negatively impacting 1 A J Brown, The Wig or the Sword? Separation of Powers and the Plight of Australian Judges, (1992) 21 FLR 54. 2 (1954) 90 CLR 177. 3 Holmes v Angwin (1906) 4 CLR 297 at 304, per Griffith J. on judicial impartiality, and is thus automatically inconsistent or incompatible with judicial office to a greater or lesser extent.4
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14. This theory is often cited as an objection to judicial involvement in Royal Commissions, particularly given the often highly politicisied nature of the subject matter dealt with during such inquiries. It is thought that by becoming involved in such inquires, judicial officers may themselves become politicised. For example, it has been contended that when a report is non -binding, unenforceable and not subject to appeal, critics will seek to discredit its findings by criticising the judge.5 It is thought that the independence of the judicial officer participating in the Royal Commission may be further undermined by the fact that it is the government that sets up an inquiry and the terms of reference, and that appoints the person to conduct it.6 END QUOTE http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1906/64.html?stem=0&synonyms=0&query=title(Holmes%20v%20Angwin%20) QUOTE Holmes v Angwin, [1906] HCA 64; (1906) 4 CLR 297 (24 October 1906) Holmes Appellant; and Angwin Respondent. H C of A
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Appeal from a Court of Disputed Returns in the State of Western Australia. 24 October 1906 Griffith C.J., Barton and Higgins, JJ. Moss K.C. (with him Barsden), for the appellant. Le Mesurier (with him Joseph) for the respondent, moved to rescind the order for special leave.
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Moss K.C., for the appellant. Le Mesurier in reply. Oct. 24 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p112
Griffith C.J. This is an appeal from an order which is in form an order of the Supreme Court of Western Australia. It is intituled "In the Supreme Court of Western Australia," and after reciting that the petition of the respondent had been tried by the Chief Justice of Western Australia, it adjudges and declares that the appellant was not duly elected as a member of the Legislative Assembly of Western Australia for the East Fremantle Electoral District, at the election held on 27th November 1905, and that the said election was absolutely void. Prim facie, then, it is a judgment of the Supreme Court of Western Australia, and it comes, prim facie again, within the words of sec. 73 of the Constitution, which provides that the High Court shall have jurisdiction, subject to certain regulations and restrictions, to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Court of any State. This is an absolute right of appeal given to suitors, and no State legislation can deprive them of that right. The order was made by the Chief Justice in the exercise of the jurisdiction conferred by the Electoral Act 1904, which provides by sec. 159 that the validity of any election or return may be disputed by petition addressed to the Supreme Court, and that the Supreme Court shall have jurisdiction to hear and determine the same. The appeal is objected to as incompetent, on the ground that, notwithstanding these words and their prim facie meaning, the decision appealed from in this case is not a decision of the Supreme Court in the sense in which that term is used in the Constitution. That is really the question which we have to determine. Before dealing with the Electoral Act 1904 on the meaning of which, to a great extent, the question must depend, I will refer to some considerations which have a general bearing on the matter. The Supreme Court of Western Australia was originally constituted under a Statute of Will. IV., but its constitution is now defined in the Supreme Court Ordinance of 1861. By that Ordinance it was provided that there shall be established in the Colony a Court of Judicature which shall be a Court of record under the style and title of the Supreme Court, and the Court was invested with and empowered to exercise in the Colony and its dependencies all the powers and jurisdiction of the Courts of Queen's Bench, Common Pleas and Exchequer at Westminster; and also all the powers and jurisdiction of the Lord Chancellor and of the Ecclesiastical Courts as they then existed in England as well as of Courts of Oyer and Terminer and general gaol delivery. The Supreme Court of this State therefore was a Court originally created to administer justice between suitors in respect to all kinds of civil rights, that is, all rights that could be enforced by legal procedure in any of the Courts of England, and also to administer the criminal law. The constitution of the Supreme Courts of all the other States was practically the same. These were the Courts which the framers of the Constitution had in view when the right of appeal was given from every decision of the Supreme Court of a State to the High Court; and I think that, prim facie, sec. 73 should be construed as referring to Supreme Courts exercising jurisdiction of that kind. No doubt, if by Statute some new right was created, which would be enforceable in the Supreme Court if no other provision were made, an appeal from a decision with respect to it would lie to this Court. On the other hand, it must be borne in mind that it is always competent for a legislature of plenary jurisdiction to create a new tribunal for any purpose it thinks fit, and to declare that its decision shall be final and without appeal; subject, of course, to the prerogative of the Sovereign and to any over-riding statutory right of appeal. It is a general rule that when a new Court is created, whatever jurisdiction is conferred upon it, there is no appeal from the decision of that Court unless it is conferred by Statute. In that respect the case may be considered as analogous it is not, of course, a perfect analogyto the case of a domestic tribunal created by contract between parties, of which a familiar instance is afforded by a fire insurance policy in which the right to recover is made dependent upon a preliminary determination of fact by a tribunal chosen by the parties. So the new right conferred by a Statute may have attached to it as an incident that a necessary fact on which the right depends shall be determined by a designated tribunal, and, if so, there is no appeal from the decision of that tribunal unless given by Statute. In the case of an inferior Court to which new jurisdiction is given, the Supreme Court can, in the exercise of its general powers, control it if it exceeds or refuses to exercise its jurisdiction. This, then, being the general rule, can a State legislature confer a new jurisdiction upon the Supreme Court subject to a similar limitation that there shall be no appeal from it to any outside jurisdiction? The answer to that question depends upon the Constitution. If the legislature merely conferred a new jurisdiction upon the Supreme Court, as intended by the Supreme Court Ordinance and contemplated by the Commonwealth Constitution, there might be considerable difficulty in saying that any words could deprive this Court of its jurisdiction to entertain an appeal from a decision made in the exercise of the new jurisdiction. It is necessary, therefore, to see what is the real effect and meaning of what the legislature has done in the present case. Did it merely create a new civil right to be administered by the Supreme Court with the ordinary incidents of litigation, including the consequent right of appeal, or did it in substance create a new and separate tribunal, consisting of a Judge of the Supreme Court as a persona designata? In answering that question regard must be had to the substance rather than to the mere verbiage of the Statute. Before the Act of 1904 there was an Act in force, passed in 1899, by which a Court of Disputed Returns was constituted. That Court consisted of two Judges of the Supreme Court, but it was not the Supreme Court, and did not exercise the jurisdiction of the Supreme Court. The two members of the Supreme Court were personally designated to exercise the p113 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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powers of the new Court, which were conferred in language almost verbally identical with that of Part XV. of the Act of 1904 now under consideration. Now, it is to be remembered that the jurisdiction to determine the validity of an election to a legislative body, is a matter not originally pertaining to the judiciary. According to our system of government the powers of the State are regarded as divided into the legislative, the executive, and the judicial branches, which are kept apart as far as practicable. The legislative branch always asserted the right to determine of whom its members should consist, and whenever they have thought fit to delegate a part of that duty to another tribunal, as they have done from time to time, they have nevertheless retained control to a certain extent. In all legislatures, since we have first known of them in Europe, one of the first duties of a body newly called together has been to verify the credentials of the persons claiming to be members of it. That is a matter very different from the kind of matters which the Supreme Courts of this and the other States were primarily constituted to deal with. Bearing these principles in mind, I will proceed to examine briefly Part XV. of the Electoral Act 1904. Sec. 159 provides that the validity of an election or return may be disputed by petition addressed to the Supreme Court, and not otherwise, and that the Supreme Court shall have jurisdiction to hear and determine the same. Sec. 160 directs what the petition is to contain, and sec. 161 requires the deposit of a sum of 50 as security for costs. Sec. 162 enacts that no proceedings shall be had on the petition unless the requirements of the preceding sections have been complied with. By sec. 163 it is enacted that the Court shall be constituted by "a Judge sitting in open Court," who shall have power to declare that any person who was returned as elected was not duly elected; to declare any candidate duly elected who was not returned as elected; to declare any election absolutely void; to dismiss or uphold any petition in whole or in part; and to award costs. The Court is required by sec. 164 to inquire whether or not the requisites of sec. 160 have been observed, and to inquire into the identity of persons, and whether their votes were improperly admitted or rejected; but the Court is not to have power to inquire into the correctness of any roll. Sec. 165 directs that the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms and technicalities. This provision of itself suggests that it was not intended that an appeal should lie to a Court bound by legal rules. Then we come to sec. 167, which says: "All decisions of the Court shall be final and conclusive without appeal, and shall not be questioned in any way." Sec. 168 directs that the Master of the Supreme Court shall forthwith, after the filing of the petition, forward to the Clerk of the House of Parliament affected by the petition a copy thereof, and after the trial of the petition shall forthwith forward to such Clerk a copy of the order of the Court. Costs may be awarded, and the order certified by the Court may be entered as a judgment of the Supreme Court and enforced accordingly. Sec. 171 provides that if any person returned is declared by the Court not to have been duly elected he shall cease to be a member of the Council or Assembly; and if any person not returned is declared to have been duly elected, he may take his seat accordingly; and if any election is declared absolutely void a new election shall be held. The necessary steps for that purpose are taken, not by the Supreme Court as incident to the execution of its judgment, but by the House to which the result of the investigation is certified. Upon consideration of the whole of these sections it appears to me that the inquiry directed to be held by a Judge of the Supreme Court is an inquiry merely incidental to and for the purpose of the determination of the right of a particular person to sit in the House of Parliament. It is an inquiry and determination for the information of that House, and effect is given to it by the House as it was before, but not until after it is informed of the result of the inquiry made by the Judge. I think, therefore, that, although sec. 159 says that the Supreme Court shall have jurisdiction, yet in substance it is not the Supreme Court, in the sense in which that term is used in the Constitution, that has jurisdiction, but that the real tribunal is a new tribunal consisting of a Judge of the Supreme Court as a persona designata, to whose arbitrament the necessary questions of fact are to be referred for the assistance of the House of Parliament. For these reasons I am of opinion that this decision is not a decision of the Supreme Court within the meaning of sec. 73 of the Constitution. So regarded, this appeal is not competent, and we have no jurisdiction to entertain it. The point upon which the special leave was given was that the Judge of the Supreme Court who undertook the inquiry had no jurisdiction to hear the petition, by reason of the failure to comply with the imperative condition of sec. 160 of the Local Act, which prescribes that the petition shall be filed within forty days of the return of the writ. It was said that the petition had not in fact been filed within that time (or that it did not appear that it had) and that this defect ousted the jurisdiction of the Judge. If that really was a defect in jurisdiction, possibly there might have been some remedy by way of application to the Supreme Court to prevent this new tribunal from proceeding in a matter in which it had no jurisdiction. I say possibly; but I do not suggest that the Supreme Court should be asked to assume such a jurisdiction. This suggested point of jurisdiction appears to me to be a matter that is left by the Statute to the designated Judge to determine for himself, and I think that his decision on this point is not reviewable by any other Court on the ground that he made a mistake in his determination. I think the case falls within the rule stated by Lord Esher M.R., in The Queen v. Commissioners for Special Purposes of the Income Tax[1]. I am of opinion, therefore, that the decision of the learned Chief Justice is not reviewable by the High Court, and that the appeal must be dismissed on that ground. Barton J. p114 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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I am in agreement with His Honor on all the questions formally before the Court which are necessary for the determination of the competency of this appeal. I will add a few words with regard to the character of the jurisdiction with which we are dealing. The validity of elections, and kindred questions, such as that of membership, were, until the passing of recent statutory law, within the exclusive privilege of elective Houses of legislature. They had the right to determine, by their own domestic tribunals, questions of that kind as they arose, and had always asserted that right, so far as the House of Commons was concerned, and the legislative bodies of Australian and other Colonies were in fact given power to assert it by the various Constitution Acts, and used to assert it by such tribunals as their own Committees of Elections and Qnalifications composed respectively of members of the House concerned. It was found, no doubt, that the feeling of partisanship which necessarily arose from such a method of determination tinged that method with disadvantages outweighing the advantage of keeping in the hands of Parliament the right of determining these questions. Parliament has therefore in many instances (and, as one instance, in this State), transferred the right to a separate tribunal, not on the ground that it wished to deal with these questions as matters of litigation; but, as I judge, on the ground that it wished to remit such matters to men of experience and known fairness of mind, who should merely declare their findings upon the questions involved, and any enforcement of such decision by the substituted tribunal itself was, in the absence of clear legislative authority, quite out of the question. Thus the Act of this State makes provisions as to the effect to be given to the decision of the Court, but it does not make the decision of the Court enforceable in the ordinary way as a judgment. There is a provision in sec. 170 which enables such action to be taken with regard to costs that is, for the purpose of allowing civil execution for costs to issue if it becomes necessarybut there is a striking difference between that section and the remaining sections of the Act with respect to the enforcement of the determination of the Court on the merits. So far as the direction of the Statute does not ensure enforcement independently of the Court, then it remains for the Houses to enforce the determination themselves. Now, that is not, in my view, the thing which was in contemplation by the framers of the Federal Constitution when they provided in the 73rd section of that instrument that the High Court should have jurisdiction to hear and determine appeals from "all judgments, decrees, orders, and sentences" of the Supreme Courts of the several States. It is my opinion that the appellant must bring himself within those words before he can sustain his right to have his appeal heard by this Court. The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants. It is that domestic jurisdiction which in this State has been transferred first to the Court of Disputed Returns, afterwards to the Supreme Court, but in the latter case with the retention of provisions which of themselves show that the character of the tribunal and the method of procedure are such as did not characterise the ordinary tribunals of justice. The legislation is marked in the difference which it constitutes in that respect, not merely as to the enforcement of the decisions, but as to questions of procedure. But, although there is power to make rules for the purpose of procedure, nevertheless upon reference to the 156th section, it appears that it is not in the character of lawyers, but in the character of men whose arbitrament would be fair and should be final that the power is committed to the Supreme Court whether designated as Judges or collectively designated as the Court. If then, as my opinion is, this is not the creation of a new jurisdiction but the transfer of an incident to the legislative and deliberative power to the Court for special purposesthe legislature being capable of course of the resumption of the jurisdiction at any momentthen it seems to me that there is a clear line drawn between the decision of the Supreme Court upon an election petition and that judgment, decree, order, or sentence, which is the object of the provision in the Constitution. Therefore I again express my concurrence with the view that this appeal should be dismissed for want of competency. Higgins J. I have come to the same conclusion. It is not easy to define the exact boundary of the class of cases referred to in sec. 73 of the Constitution as "judgments, decrees, orders, and sentences ... of the Supreme Court of any State"; but it is easy to see clearly that a decision as to an election appeal does not come within the class; and I think that the High Court is not at present under any obligation to go further. As has been stated, election appeals were originally within the competence of the House as to which the return was disputed. They were originally decided by the whole House of Commons. Afterwards, in 1770, Grenville's Act was passed which left the decision to a Committee of the House; and there was an Act passed in 1839 modifying the provisions as to committees; and then in 1868 (as regards the House of Commons) the decision of disputed elections was left to two Judges selected from the Queen's Bench Division of the High Court of Justice the Court of Disputed Returns. The course of legislation in Western Australia appears to be similar; and in 1899 the local legislature delegated their powers to a Court of Disputed Returns, consisting of two Judges. I do not think it is disputed that there would be no appeal from a decision of that Court of Disputed Returns, as then constituted; and the only distinction that has been made since is that by the Electoral Act 1904, in place of two Judges of the Supreme Court, there has been substituted one Judge of the Supreme Court. This decision of the Judge of the Supreme Court is not subject, like ordinary judgments of the Supreme Court, to an appeal to the Full p115 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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Court. It is not a judgment of the Supreme Court as to person or as to property; if it were, there would be no need for the special provisions which are contained in part XV. of the Electoral Act 1904, giving power to award costs, &c. If it were an ordinary judgment of the Supreme Court, that power would follow without express words; but, according to sec. 170, the costs awarded are to be recoverable as if the order of the Court were a judgment of the Supreme Court. From the very form of the words it is clear that it is not a judgment of the Supreme Court, but that these costs are to be recoverable as if it were a judgment of the Supreme Court. The substance of the position then is, that under the Electoral Act 1904 the return of the returning officer decides who is to be the member. Under sec. 131 the returning officer has to ascertain the total number of votes polled for each candidate, and the candidate who receives the greatest number of votes shall be elected. That return is final, subject to only one conditiona finding by a Judge of the Supreme Court. It seems to me that the nearest analogy in the practice of the Courts to the position in this case is the finding of a Master in Chancery, or, under more recent procedure, a Chief Clerk of the Court. It is referred to him to make inquiry and report. Then we find under Part XV., again, that in analogy to that procedure the Supreme Court forwards to the Clerk of the House of Representatives a copy of the decision of the Judge. Then, as my colleagues have stated, effect is given to the decision, not by the Court (except as regards costs awarded by the Court), but by Parliament. If an election be declared absolutely void, effect is to be given to that decision of the Court (according to sec. 171), by the holding of a new election. It is not the Court that holds the election it is Parliament that causes it to be held. For these reasons I concur in the decision that the appeal should be dismissed. Appeal dismissed with costs. Solicitors, for the applicant, Moss & Barsden. Solicitors, for the respondent, Le Mesurier. [1] 21 Q.B.D., 313).
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END QUOTE
The High Court of Australia however stated the following:

Sue v Hill [1999] HCA 30 (23 June 1999)
QUOTE
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1.
II THE JUDICIAL POWER OF THE COMMONWEALTH Section 354(1) of the Act states that this Court "shall be the Court of Disputed Returns" and shall have jurisdiction (i) to try the petition itself or (ii) to refer the petition for trial to the Federal Court or to the Supreme Court of the State or Territory in which the election was held or the return made. Sub-section (2) confers jurisdiction upon the court to which the reference is made by this Court. In addition, sub-s (3) empowers the High Court to refer part of a petition consisting of a question or questions of fact and, subject to any directions by the High Court, jurisdiction is conferred by sub-s (4) upon the court to which reference is made by this Court to deal with that part of the petition. Counsel for Mrs Hill relied upon what was said to be involved in the reasoning in the judgments in Holmes v Angwin[28]. Section 354, like its predecessor, s 193 in the 1902 Act, differs from the provisions of the Electoral Act (WA) which were considered in Holmes v Angwin. The Western Australian statute was construed as, in substance, creating a new and separate tribunal consisting of a judge of the Supreme Court of Western Australia as a persona designata. On the other hand, s 354(1) fixes upon "the High Court" and specifies two matters in respect of the High Court. First, the High Court "shall be the Court of Disputed Returns" and secondly, it "shall have jurisdiction" to try or otherwise deal with the petition. Elsewhere in Pt XXII there is reference to "the Court of Disputed Returns", "the court" and to "the High Court of Australia". To a significant degree, the rather confused drafting is a reflection of the circumstance that jurisdiction is conferred not only upon the High Court but, in the circumstances indicated above, upon the Federal Court and the Supreme Courts of the States and Territories. An example, as Gaudron J points out in her reasons for judgment, is the provision in s 373 dealing with costs.
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In the oral argument, no submission for Mrs Hill to the effect that Div 1 selects the Justices of this Court as personae designatae was pressed. As already indicated, any such submission would not be well founded. It also is apparent from the first reading speeches upon the Bill for the 1902 Act, to which reference has been made in Section I of these reasons, that the legislative intention was to confer jurisdiction upon the High Court and for it to be identified, in the exercise of that jurisdiction, as the Court of Disputed Returns. This was achieved without the creation of any new federal court under ss 71 and 72 of the Constitution, or the selection of Justices to exercise functions as personae designatae. p116 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
3.
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However, it is submitted for Mrs Hill that the power invoked by the petitions in respect of her election is not the judicial power of the Commonwealth, with the result that the petitions are incompetent. The broad submission is made that the authority to determine questions of a disputed election to either chamber of the Parliament cannot be conferred upon this Court or any other court exercising the judicial power of the Commonwealth because such authority is unequivocally legislative in character. Reference was made to developments, concerning disputed elections to the House of Commons, leading to the enactment of the 1868 Act and to the discussion of the subject by Higgins J in Holmes v Angwin[29]. However, what emerges is that the passing of the 1868 Act was, to adapt an observation of Mason J in Berrill v Hughes[30]: "the product of the controversial and unsatisfactory history of Parliamentary review of disputed elections".
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5.
It is true that in Holmes v Angwin, Barton J said[31]: "The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary determination of the rights of parties who are litigants." Griffith CJ was of similar mind[32]. Their Honours were speaking at a time before it was recognised in this Court that, whilst some powers when entrusted to a repository other than a court may be characterised as legislative or administrative and non-judicial, when they are entrusted in an appropriate context to a court they may involve the exercise of judicial power[33]. This functional analysis appears to have been first recognised by Isaacs J in 1926.
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6.
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In Federal Commissioner of Taxation v Munro[34], Isaacs J included "the determination of the validity of parliamentary elections" among matters which were subject to no a priori exclusive delimitation but were capable of assignment by Parliament to more than one branch of government. Such a matter, his Honour continued, was "capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances"; to deny that proposition would be to "seriously affect the recognized working of representative government"[35]. In this respect, it is important to appreciate that, in dealing with the validity of an election or a return on petition presented pursuant to Div 1 of the Act, the Court of Disputed Returns is not applying the amalgam of centuries of practice and piecemeal statutory provision which constituted "the Common Law of Parliament" referred to in the definition of "Corrupt Practices" in s 3 of the 1868 Act. Rather, as indicated in Section I of these reasons, what is involved in Australia, where the existence of illegal practices and the like are asserted, is contravention of the particular legislative provisions identified in s 352(1) of the Act. That is what was decided by Gaudron J in Hudson v Lee[36]. In issue is not the application of "the Common Law of Parliament" but the contravention of norms which owe their existence to laws made by the Parliament itself, in exercise of the power conferred by s 51(xxxvi) of the Constitution. Where the contravention is of qualification requirements imposed by s 44 of the Constitution itself, the position is even plainer. The lex parliamentarii did not know of such things. It should be noted that, even with respect to "the Common Law of Parliament", the view that the character of the jurisdiction exercised to try election petitions was purely incidental to legislative power, as stated by Barton J in Holmes v Angwin[37], has not gone without comment in this Court. In delivering the judgment of the Court in R v Richards; Ex parte Fitzpatrick and Browne [38], Dixon CJ noted the tendency to regard the privileges and powers of the House of Commons as something essential or proper for its protection rather than as strictly judicial. His Honour added[39]: "This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically - perhaps one might even say, scientifically - they belong to the judicial sphere."
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Dixon CJ was speaking in the course of considering the relationship between s 49 and Ch III of the Constitution. Had specific provision with respect to disputed elections not been made by s 47 of the Constitution, such matters may have fallen within the general provisions of s 49. This states:
"The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as p117 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth."
In that event, it may be that, consistently with R v Richards; Ex parte Fitzpatrick and Browne[40], questions as to "the Common Law of Parliament" would have been drawn in by s 49 and would fall outside Ch III. This would have had to have been so, even though a dispute concerning the operation of s 49 would have otherwise been a matter arising under or involving the interpretation of the Constitution within the meaning of s 76(i). But that is not the regime that the Constitution established. 10. Given the terms of s 47 of the Constitution, the provisions in s 46 for the recovery in a court of competent jurisdiction of penalties at the suit of any person suing for them, and the existence since 1902 of comprehensive legislation regulating elections and dealing with disputed returns, no such questions arise. There is nothing in the nature of the resolution of disputed elections which places such controversies necessarily outside the exercise of the judicial power of the Commonwealth. 11. There is a further point to be noted. As indicated in Section I of these reasons, the complaint in each petition is that Mrs Hill, as a citizen of a foreign power, was rendered by s 44(i) of the Constitution incapable of being chosen as a Senator. It is upon that footing that the validity of her election is challenged by the petitions under s 353(1) of the Act. In this operation, s 353(1), in conjunction with s 354, constitutes a law conferring original jurisdiction on the High Court in a matter arising under the Constitution or involving its interpretation. The observations of Isaacs J in Federal Commissioner of Taxation v Munro[41], applying a functional analysis to the determination of the validity of parliamentary elections, are directed to the determination of disputes as to legislatively proscribed practices in relation to elections rather than to questions of constitutional disqualification. To decide whether a person was incapable of being chosen as a Senator or Member of the House by reason of that person answering the description in one or more of the paragraphs of s 44 of the Constitution may involve the determination of facts. But these facts will be constitutional facts and the determination of constitutional facts is a central concern of the exercise of the judicial power of the Commonwealth. No resort in the present case to "functional analysis" is necessary to uphold the jurisdiction of the Court to determine whether Mrs Hill was not duly elected. If the Court were to exercise its power under s 360(1)(v) to declare that Mrs Hill was not duly elected, the Court thereby would recognise that which the operation of the Constitution itself brought about. 12. A more focused attack was made upon the validity of Div 1 by directing attention to particular provisions. These, it was said, indicate that the powers conferred by the Division were to be exercised in a manner inconsistent with the exercise of the judicial power of the Commonwealth. Gaudron J indicates in her reasons for judgment that the provisions fall into three groups: those said to confer general discretions to be exercised without regard to legal standards; those giving directions of a kind not normally given to courts; and those relating to decisions of the Court of Disputed Returns. We agree with her Honour's analysis of these provisions. 13. We would add four points. The first concerns s 354(6). This is a law supported by s 79 of the Constitution and states that the jurisdiction conferred by s 354 "may be exercised by a single Justice or Judge". The provision is permissive rather than mandatory. It is consistent with the operation of s 18 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") whereby, as in the present proceedings and in Sykes v Cleary [No 2][42], cases have been stated for the Full Court of this Court. The Full Court is, of course, exercising original jurisdiction. 14. Secondly, the availability of procedures under s 18 diminishes what otherwise would be the impact of s 368. Section 18 provides:
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"All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way." As Gaudron J has pointed out, in its application to the appellate jurisdiction of this Court, s 368 is to be supported as a prescription by the Parliament of an exception within the meaning of s 73 of the Constitution. However, were it not for the availability of the procedures under s 18 of the Judiciary Act, particularly with respect to questions arising under the Constitution or involving its interpretation, a question may have arisen as to the validity of s 368. The joint judgment in Cockle v Isaksen[43] indicates that the power to prescribe exceptions does not extend to laws which "eat up or destroy" the general regime specified in s 73 of the Constitution as to the appellate jurisdiction of the High Court. 15. Thirdly, s 364 should be noted. This states: p118 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
50
"The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
Provisions of this type are not inimical to the exercise of the judicial power of the Commonwealth. They do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness[44]. 16. Finally, a reference should be made to s 360(2) of the Act. This provides: "The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient."
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The powers in question are set out in pars (i)-(x) of s 360(1). Paragraphs (i)-(iv) deal with such matters as adjournments, the compulsory attendance of witnesses and production of documents and the taking of evidence. There is nothing hostile to the exercise of the judicial power of the Commonwealth in providing for the exercise of the discretion involved in such matters in accordance with what the Court thinks just and sufficient. So also with respect to the power to award costs conferred by par (ix) of s 360(1), supplemented by s 360(4). 17. Paragraphs (v)-(viii) of s 360(1) confer powers to dispose of a petition by declaratory and other orders dismissing or upholding the petition in whole or in part. Where there has been a finding that a successful candidate has committed or has attempted to commit bribery or undue influence, s 362(1) requires the Court to declare the election void. Provision is made by s 362(3) which directs the Court as to what should be done where other malpractices have been found. Thus, s 362 operates to limit what otherwise might have been thought to be the width of the discretion under s 360(2) and the words "just and sufficient" therein. Where what is involved is ineligibility by reason of contravention of s 44 of the Constitution, justice and sufficiency would, as in this case, at least require a declaration that the person who was returned as elected was not duly elected, within the meaning of s 360(1)(v). The reasons of Gaudron J in the present case illustrate that what further or other relief should be given depends upon the circumstances disclosed by the particular case. 18. In the context in which s 360(2) appears in the Act, it does not confer some uncontrolled discretion exercisable by recourse to other than legal norms. Like that considered by Kitto J in R v Commonwealth Industrial Court; Ex parte the Amalgamated Engineering Union, Australian Section [45], the discretion involved is "not so indefinite as to be insusceptible of strictly judicial application"[46]. Indeed, as Mason and Murphy JJ remarked in R v Joske; Ex parte Shop Distributive and Allied Employees' Association [47]: "[T]here are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v Cominos[48])."
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19. We turn now to consider the substantive question, respecting the construction and application of s 44(i) of the Constitution.
END QUOTE
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While this set out may seem to defeat my argument that the High Court of Australia was acting as a Court of Disputed Returns without judicial authority, it is in my view not that simple.
QUOTE No
V 1145 of 2001 2-11-2001
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FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FINKELSTEIN J DIRECTION No V 1145 of 2001 GERRIT HENDRIK SCHOREL-HLAVKA and GOVERNOR GENERAL and OTHERS
END QUOTE No QUOTE No
V 1145 of 2001 2-11-2001
V 1145 of 2001 2-11-2001 p119 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
HIS HONOUR: In section 353 of the Commonwealth Electoral Act, it says: The validity of any election may be disputed by petition addressed to the court of disputed returns and not otherwise.
5
5 MR SCHOREL-HLAVKA: And if your Honour may have taken the opportunity of reading my affidavit, then you will find that in paragraph 3 that is exactly that part I have referred to. What happened is when I was here on Wednesday and I was told they didn't have the forms, I subsequently spoke to Anna-Marie Mussolini. She's the deputy registrar of the High Court. I spoke 10 to her and I faxed her a copy and I had it - court of dispute of return High Court. The registrar, she said she's going to send me a letter - said, "No, Mr Schorel, it is not." She said, "It's after the election that we are the court of dispute of return." I said, "Well, in my view, it would be before," because that - has not authorised. Your Honour, if you read my affidavit you will see I have 15 exactly set out this in very detail that was my conception. The High Court has - as your Honour may also see in the Electoral Act section 354 has the power to - - HIS HONOUR: Sole jurisdiction unless it remits the matter to the Federal 20 Court. MR SCHOREL-HLAVKA: Yes, but it can refer matters to the - so therefore, when the registrar told me to file this matter into the Federal Court, as such, I believe she has given credence to section 354 to now have this matter heard as 25 an injunction. What the registrar was arguing is that the prerogative relief sought by me was within the jurisdiction of the Federal Court. She pointed out in fact, your Honour, that - and I have indicated it in my affidavit paragraph 3, page 2 - how they - that she referred to section 355E indicating within 14 days after the return and there is no scope for the matter to be placed before the 30 court of dispute of return prior to any election being held. So that was the argument of the registrar, the deputy registrar of the High Court, your Honour, here in Melbourne. I have given considerable consideration as to where I should file this document. 35 HIS HONOUR: There may be a very real question - just assume for the minute that you're right about everything, it may be that there is no way you can in advance challenge the validity of an election. In other words, you have to wait and see what happens.
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40 MR SCHOREL-HLAVKA: Sorry, your Honour, I have a little bit of a hearing problem. One hearing aid works and the other one doesn't.
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HIS HONOUR: What I was suggesting was that it may be possible that the way this legislation works, nobody has standing to challenge the lawfulness of 45 an election before the election, and that the only way to do it is after the election. MR SCHOREL-HLAVKA: Your Honour, I honourably disagree with that because - - END QUOTE No QUOTE No
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V 1145 of 2001 2-11-2001 MR SCHOREL-HLAVKA: Your Honour, may I ask you, because it's been a problem. I had quite a discussion with the registrar of the High Court. Instead of the governor-general and the governors, because so many, were all issued writs. Because they 5 wrote the writs, it's a little bit different because they act on the advice of the government, the executive government. I had the queen, but the registrar of the High Court found that the queen you do in criminal, but not in this case. Would your Honour accept that I - if I served the government's solicitors for behalf of the government, that would be sufficient or would p120 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
10 your Honour have special directions to that, being that it's so limited time? I can fax them. There's no doubt about that, and I will.
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HIS HONOUR: I think what you should do is you should ring now the Australian Government Solicitor, ignore the state government solicitors for the 15 time being, speak to the Australian Government Solicitor because you might be able to come to some arrangement with a person in that office that service on the Australian Government Solicitor will be good enough service on the government of the Commonwealth, but more importantly, the Commonwealth of Australia. 20 MR SCHOREL-HLAVKA: Yes, your Honour.
15
HIS HONOUR: I'm sure that if you have a sensible chat to the extent that you can - - 25 MR SCHOREL-HLAVKA: I've been trying to send it to them. In fact, I've asked the lawyers for the department of the electoral commission whether they could join me as an applicant. 30 HIS HONOUR: But if you speak to the Australian Government Solicitors office, then you probably will avoid the need of going to the governor's house or sending the process server - - MR SCHOREL-HLAVKA: Yes, I understand that, your Honour. 35
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HIS HONOUR: If you try and do that, you'll probably get arrested or something. END QUOTE No V 1145 of 2001 2-11-2001
QUOTE No
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V 1145 of 2001 2-11-2001 MR SCHOREL-HLAVKA: Your Honour, I really appreciate your hearing me 40 so urgently on this matter. But all I'm saying is this, that I believe that if we don't sort it out now and done after the election it's going to be - and that would be an enormous cost and burden to the community. HIS HONOUR: Although, the normal way that elections are disputed is after 45 the election. MR SCHOREL-HLAVKA: I'm not necessarily, at the moment, disputing the election. I'm disputing the writs.
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HIS HONOUR: I understand. MR SCHOREL-HLAVKA: So that's different, sir. At least nobody can say I'm crying sour grapes for not winning or whatever an election - - 5 HIS HONOUR: Because you haven't lost yet.
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MR SCHOREL-HLAVKA: That's right. I haven't lost yet, so I'm doing before it. Thank you, your Honour. 10 HIS HONOUR: I'll adjourn it to Wednesday.
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MATTER ADJOURNED AT 3.54PM UNTIL WEDNESDAY, 7 NOVEMEBER 2001 END QUOTE No V 1145 of 2001 2-11-2001 p121 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
From the above stated it must be clear that I disputed the writs on legalities, which and had the Governor-General and other Governors as defendants. It was a legal matter of statute requirement of writs, and not a dispute as to vote counting, etc. 5
QUOTE No
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V 1145 of 2001 7-11-2001 FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY MARSHALL J DIRECTIONS No V 1145 of 2001 GERRITT HENDRIK SCHOREL-HLAVKA and THE GOVERNOR-GENERAL and OTHERS MELBOURNE 10.19 AM, WEDNESDAY, 7 NOVEMBER 2001
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MR G.H. SCHOREL-HLAVKA appeared on his own behalf MR P.J. HANKS QC (instructed by Australian Electoral Commission) appeared on behalf of the respondents END QUOTE No V 1145 of 2001 7-11-2001
QUOTE No
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V 1145 of 2001 7-11-2001 MR SCHOREL-HLAVKA: I have no problem with the counsel being here for the Electoral Commission. HIS HONOUR: But what he's concerned about is whether the reference to the Commonwealth of Australia as a respondent in the proceeding where you have 35 in brackets "also for the Australian Electoral Commission" should be read as a reference to the Australian Electoral Commission. MR SCHOREL-HLAVKA: Well, your Honour, there's a problem there because as I understand it it's the prime minister of Australia who requested the 40 governor-general for issue of writs, and it does. HIS HONOUR: What I'll do is short-circuit this debate, which seems to be one that ultimately will go nowhere, is see if you have any objection to the Australian Electoral Commission being added as a party to the proceeding. 45 MR SCHOREL-HLAVKA: I have no objection. HIS HONOUR: I'll order that the Australian Electoral Commission be added .V1145/2001 7.11.01 P-3
Commonwealth of Australia
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as the third respondent to the proceeding, the first respondents being the governor-general and the various governors of the various states, the second respondent being the Commonwealth of Australia and the third respondent being the Australian Electoral Commission. Mr Hanks, you appear for the third respondent. Is that the case? END QUOTE No V 1145 of 2001 7-11-2001
QUOTE No
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V 1145 of 2001 7-11-2001 MR HANKS: Can I just explain that the outline deals with a number of issues. It deals with the issue of jurisdiction under the heading of section 353 that's on the second page - and it raises what we maintain is a substantial obstacle to this application in the following paragraphs up to paragraph 15. Thereafter it deals with what one might describe as the substance of the claims 35 made by the applicant, but I don't need to take your Honour to those. What I should do is take your Honour to the section under the heading of section 353(1). If your Honour were to turn to the act, your Honour would see that 353(1) 40 provides that the validity of any election or return may be disputed by a petition addressed to the court of disputed returns and not otherwise. As your Honour knows, the Court of Disputed Returns is the High Court of Australia. That's pursuant to section 354(1). Your Honour will also see from section 355 that a petition which disputes an election is to be filed in the 45 registry of the High Court and is to be filed within 40 days after the return of p122 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
the writ. Particularly 353 and its associated provisions on its face have two significant results. The first is that the only forum in which the validity of an election may be disputed is the Court of Disputed Returns. There is no other
.V1145/2001 7.11.01 P-8 Commonwealth of Australia forum in which that issue can be raised. END QUOTE No V 1145 of 2001 7-11-2001
QUOTE No
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V 1145 of 2001 7-11-2001 HIS HONOUR: Yes, thank you, Mr Hanks. I'll hear a response on the jurisdictional issue only. 10
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MR SCHOREL-HLAVKA: Yes, your Honour. I thank the gentleman for his history lesson about section 47. Actually, as I have read it over the last few days, parliament in its wisdom held it was better to give the power of disputed returns to the courts because they felt that it was being stacked otherwise by the 15 house itself and that was not a fair judgment. So over the years they decided that, whereas originally the house had the right to determine the validity of an election - it held that it should be the Court of Disputed Returns, which was the High Court because they held the judges were impartial. Therefore, your Honour, what may have been in the past I don't think is applicable 20 because the intention of the parliament has been clearly shown in the Constitution that, unless parliament provides otherwise - and the parliament clearly provided for the High Court to sit as a court of disputed return. Your Honour, after the constitutional grounds your Honour may notice that in 25 the first affidavit I had filed there is in fact a reference in paragraph 21 that section 5 of the Australian Constitution provides: This act and all laws made by parliament of the Commonwealth under the Constitution shall be binding on the courts, judges and 30 people of every state of the Commonwealth. As such, I have relied on that, that this is applicable in relation to the Electoral Act. Your Honour, what we ought to do is to look at what I have also indicated in my recent affidavit, that which was sworn on 5 November. I invite you to 35 go to paragraph 23. In paragraph 23 on page 10 I give the version of section 383 as it was available on the Internet. I also indicate to this court in that affidavit that the parliament recently has amended section 83 to include the wording "the Federal Court of Australia", the Federal Court. So whereas I understand that counsel is relying on past decisions made by the High Court, 40 we should look at it - that was in the context that at the time the Federal Court had no jurisdiction as such. So section 353, which his Honour Finkelstein also raised, was done in a sense the Federal Court of Australia at that time had no jurisdiction at all to deal with 45 applications. However, the federal parliament in its wisdom in the last few years or the last year felt that injunctions ought to be placed before the Federal Court of Australia. It seems to me, your Honour - - END QUOTE No V 1145 of 2001 7-11-2001
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What therefore is an issue is that while the High Court of Australia can invoke original jurisdiction the Federal Court of Australia doesnt have such a position. The fact therefore that the Parliament provided for the Federal Court of Australia to hear and determine matters in a Court of Disputed Returns existing as the Federal Court of Australia clearly seems to so to say undermine the argument of the High Court of Australia in Sue v Hill. What I view is that the correct manner would have been was for the High Court sitting as Court of Disputed Returns to place a case stated to the High Court of Australia sitting as High Court of Australia (albeit with different judges) on certain matters involving the interpretation of the constitution. Then when the High Court of Australia had determined matters as a High Court of Australia exercising its original jurisdiction it could refer the matter back to the High Court of
Australia sitting as a Court of Disputed Returns (which is a political exercise for the politicians in the House to which the matter relates).
QUOTE CEA1918
354 The Court of Disputed Returns
(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either to try the petition or to refer it for trial to the Federal Court of Australia (the Federal Court). (2) When a petition has been so referred for trial, the Federal Court shall have jurisdiction to try the petition, and shall in respect of the petition be and have all the powers and functions of the Court of Disputed Returns. (3) The High Court may refer to the Federal Court part of a petition in respect of an election or return, being a part that consists of a question or questions of fact. (4) Subject to any directions by the High Court, if the High Court refers part of a petition to the Federal Court under subsection (3): (a) the Federal Court has jurisdiction to deal with the part of the petition that has been referred; and (b) the Federal Court has, in respect of the petition, the powers and functions of the Court of Disputed Returns, other than the powers referred to in paragraphs 360(1)(v), (vi), (vii) and (viii) and in section 379; and (c) subject to any directions by the High Court, further proceedings in relation to the part of the petition are as directed by the Federal Court. (5) The High Court may have regard to the findings of the Federal Court in dealing with the petition and may in its discretion receive further evidence on questions of fact. (6) The jurisdiction conferred by this section may be exercised by a single Justice or Judge.
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355 Requisites of petition
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Subject to section 357, every petition disputing an election or return in this Part called the petition shall: (a) set out the facts relied on to invalidate the election or return; (aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief; (b) contain a prayer asking for the relief the petitioner claims to be entitled to; (c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment; (d) be attested by 2 witnesses whose occupations and addresses are stated; (e) be filed in the Registry of the High Court within 40 days after the return of the writ; or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution, within 40 days after the notification of that choice or appointment.
END QUOTE CEA1918 QUOTE
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360 Powers of Court
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(1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: (i) To adjourn; (ii) To compel the attendance of witnesses and the production of documents; (iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents; (iv) To examine witnesses on oath; (v) To declare that any person who was returned as elected was not duly elected; (vi) To declare any candidate duly elected who was not returned as elected; (vii) To declare any election absolutely void; (viii) To dismiss or uphold the petition in whole or in part; (ix) To award costs; (x) To punish any contempt of its authority by fine or imprisonment. (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election. (4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so.
END QUOTE
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What is shown is here that the issue to award cost would be ordinary applicable if the Court were to exercise original jurisdiction but clearly the fact that this is provided for by legislation in my view means that without this provision the court couldnt make an y orders for cost. As the court ordinary has inherent powers to issue orders for cost then clearly this underlines the judgment in Holmes v Angwin, [1906] HCA 64; (1906) 4 CLR 297 (24 October 1906)
QUOTE Griffith C.J. XV. of the Electoral Act 1904. Sec. 159 provides that the validity of an election or return may be disputed by petition addressed to the Supreme Court, and not otherwise, and that the Supreme Court shall have jurisdiction to hear and determine the same. Sec. 160 directs what the petition is to contain, and sec. 161 requires the deposit of a sum of 50 as security for costs. Sec. 162 enacts that no proceedings shall be had on the petition unless the requirements of the preceding sections have been complied with. By sec. 163 it is enacted that the Court shall be constituted by "a Judge sitting in open Court," who shall have power to declare that any person who was returned as elected was not duly elected; to declare any candidate duly elected who was not returned as elected; to declare any election absolutely void; to dismiss or uphold any petition in whole or in part; and to award costs. END QUOTE
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Holmes v Angwin, [1906] HCA 64; (1906) 4 CLR 297 (24 October 1906) Griffith C.J. 45
QUOTE Barton J. Thus the Act of this State makes provisions as to the effect to be given to the decision of the Court, but it does not make the decision of the Court enforceable in the ordinary way as a judgment. There is a provision in sec. 170 which enables such action to be taken with regard to costs that is, for the purpose of allowing civil execution for costs to issue if it becomes necessarybut there is a striking difference between that section and the remaining sections of the Act with respect to the enforcement of the determination of the Court on the merits. So far as the direction of the Statute does not ensure enforcement independently of the Court, then it remains for the Houses to enforce the determination themselves. Now, that is not, in my view, the thing which was in contemplation by the framers of the Federal Constitution when they provided in the 73rd section of that instrument that the High Court should have jurisdiction to hear and determine appeals from "all judgments, decrees, orders, and sentences" of the Supreme Courts of the several States. It is my p125 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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opinion that the appellant must bring himself within those words before he can sustain his right to have his appeal heard by this Court. The character of the jurisdiction which has been exercised by Parliaments as to election petitions is purely incidental to the legislative power; it has nothing to do with the ordinary END QUOTE
5 Holmes v Angwin, [1906] HCA 64; (1906) 4 CLR 297 (24 October 1906) Griffith C.J.
QUOTE Higgins J This decision of the Judge of the Supreme Court is not subject, like ordinary judgments of the Supreme Court, to an appeal to the Full Court. It is not a judgment of the Supreme Court as to person or as to property; if it were, there would be no need for the special provisions which are contained in part XV. of the Electoral Act 1904, giving power to award costs, &c. If it were an ordinary judgment of the Supreme Court, that power would follow without express words; but, according to sec. 170, the costs awarded are to be recoverable as if the order of the Court were a judgment of the Supreme Court. From the very form of the words it is clear that it is not a judgment of the Supreme Court, but that these costs are to be recoverable as if it were a judgment of the Supreme Court. The substance of the position then is, that under the Electoral Act 1904 the return of the returning officer decides who is to be the member. Under sec. 131 the returning officer has to ascertain the total number of votes polled for each candidate, and the candidate who receives the greatest number of votes shall be elected. That return is final, subject to only one condition a finding by a Judge of the Supreme Court. It seems to me that the nearest analogy in the practice of the Courts to the position in this case is the finding of a Master in Chancery, or, under more recent procedure, a Chief Clerk of the Court. It is referred to him to make inquiry and report. Then we find under Part XV., again, that in analogy to that procedure the Supreme Court forwards to the Clerk of the House of Representatives a copy of the decision of the Judge. Then, as my colleagues have stated, effect is given to the decision, not by the Court (except as regards costs awarded by the Court), but by Parliament. If an election be declared absolutely void, effect is to be given to that decision of the Court (according to sec. 171), by the holding of a new election. It is not the Court that holds the election it is Parliament that causes it to be held. For these reasons I concur in the decision that the appeal should be dismissed. END QUOTE
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Yet, we then have that the commonwealth unconstitutionally dictates the State Courts to be closed courts when it so desires.; http://www.austlii.edu.au/cgi-bin/download.cgi/cgibin/download.cgi/download/au/legis/cth/num_act/jaa1984192.txt
QUOTE JUDICIARY AMENDMENT ACT 1984 NO. 7, 1984 JUDICIARY AMENDMENT ACT 1984 NO. 7, 1984 - TABLE OF PROVISIONS
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1. Short title. 2. Commencement 3. Judiciary Amendment Act 1984 No. 7 of 1984 - SECT 1 Short title. An Act to amend the Judiciary Act 1903
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Short title, &c.
(Assented to 4 April 1984) 1. (1) This Act may be cited as the Judiciary Amendment Act 1984. (2) The Judiciary Act 1903*1* is in this Act referred to as the Principal Act. Judiciary Amendment Act 1984 No. 7 of 1984 - SECT 2 Commencement
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2. This Act shall come into operation on the day on which it receives the Royal Assent.
Judiciary Amendment Act 1984 No. 7 of 1984 - SECT 3 3. After Part VII of the Principal Act the following Part is inserted: ''PART VIII-ENFORCEMENT OF CERTAIN ORDERS CONCERNING COURT PROCEEDINGS Interpretation ''46. In this Part'Australia' includes the external Territories;
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'court' means a court of Victoria, and includes a Judge of such a court and any Magistrate, Justice of the Peace or Coroner of Victoria; 'make', in relation to an order being a direction, includes give;
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'order' includes a direction; 'proceedings' means criminal proceedings arising out of, or in any way relating to, the incident that occurred at the Sheraton Hotel in Melbourne on the night of 30 November 1983 involving the Australian Secret Intelligence Service. Application ''47. This Part applies to and in relation to-
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(a) all natural persons, whether resident in Australia or not and whether Australian citizens or not; and
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(b) all bodies corporate, whether incorporated in Australia or not, and extends to acts done or omitted to be done outside Australia. Crown to be bound ''48. This Part binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island. Contravention of order to constitute contempt ''49. (1) If a court makes an order to which this sub-section applies in relation to proceedings before the court on the ground, or on grounds that include the ground, however the ground is expressed, that the making of the order is necessary or desirable in the interests of the national or international security of Australia or in the interests of the physical safety of the accused, of a witness or of any other person, a person shall not contravene or fail to comply with the order so far as it is applicable in relation to the last-mentioned person. ''(2) By force of this sub-section, an order referred to in sub-section (1) applies, except so far as is inconsistent with the express terms of the order, in like manner as this Part applies by virtue of section 47.
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''(3) Sub-section (1) applies to(a) an order that the proceedings are, or part of the proceedings is, to take place in a closed hearing;
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(b) an order that a person is, or persons included in a specified class of persons are, to be excluded from the whole or part of the proceedings; 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p127
(c) an order prohibiting or restricting the disclosure of information with respect to the whole or part of the proceedings;
(d) an order prohibiting or restricting the publication of a report of or relating to the whole or part of the proceedings; (e) an order for the purpose of ensuring that no person without the approval of the court has access, whether before, during or after the hearing of the proceedings, to any indictment, affidavit, exhibit or other document used in the proceedings or to the records of the court relating to the proceedings; or (f) an order combining any 2 or more of the foregoing orders.
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''(4) If a person contravenes or fails to comply with an order referred to in sub-section (1), the Federal Court of Australia has the same powers to punish the person for the contravention or failure as if the order had been made by that Court. Reports ''50. (1) Subject to sub-section (2), the Attorney-General of the Commonwealth shall, as soon as practicable after each 30 June, lay before each House of the Parliament a report setting out-
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(a) the number of proceedings in which, to his knowledge, orders referred to in sub-section 49 (1) were made during the year that ended on that date; and (b) particulars of those proceedings, including particulars of the judgments. ''(2) Sub-section (1) does not require the making of a report in terms that would be inconsistent with any order referred to in sub-section 49 (1).''. Application of this Part
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''51. This Part does not apply in relation to an order made later than 2 years after the commencement of the Criminal Proceedings Act 1984 of Victoria.''.
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Judiciary Amendment Act 1984 No. 7 of 1984 - NOTE NOTE 1. No. 6, 1903, as amended. For previous amendments, see No. 5, 1906; No. 8, 1907; No. 34, 1910; No. 31, 1912; No. 11, 1914; No. 4, 1915; No. 38, 1920; No. 39, 1926; No. 9, 1927; No. 60, 1932; Nos. 34 and 65, 1933; No. 45, 1934; No. 5, 1937; No. 43, 1939; No. 50, 1940; No. 10, 1946; No. 52, 1947; No. 65, 1948; Nos. 51 and 80, 1950; Nos. 17 and 35, 1955; No. 50, 1959; Nos. 32 and 109, 1960; No. 91, 1965; Nos. 55 and 93, 1966; No. 134, 1968; No. 39, 1969; No. 216, 1973; No. 164, 1976; No. 36, 1978; Nos. 19, 86 and 138, 1979; No. 61, 1981; No. 26, 1982; and Nos. 39, 91 and 114, 1983. END QUOTE
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The Framers of the Constitution however held that the Commonwealth of Australia must accept the State Courts as they are and cannot interfere with them. As such, while the Kable decision did no more but to make clear the embedded legal principle in the constitution the legislation by the Commonwealth of Australia actually is interfering with the State court judicial powers unconstitutionally. As such, the Commonwealth of Australia can by this unduly interfere and undermine legal proceedings in a State Courts as to favour any outcome it desires. This indeed is a very dangerous situation as it prevents State citizens to be aware what transpires in their courts to which they are entitled upon as to be able to inform their legislatives what if any amendments they require to existing laws to protect the rights of fellow citizens.
HANSARD 11-03-1891 Constitution Convention Debates QUOTE Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments. END QUOTE
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HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. SYMON.Then, I think myself, some confusion may arise in consequence of the reference to the state in the words "Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the regulation of its own legal proceedings. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are just to both. END QUOTE Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: END QUOTE
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How on earth can anyone afford to challenge even each and every power abuse by the Commonwealth of Australia one may ask? All the commonwealth of Australia needs to do is to declare a State Court to be a closed court and citizens will be denied to know what really went on and what really were the issues litigated. Hence, the abuse of the courts is aided and abetted by the judiciary to allow for this. As with the AVERMENT in which I succeeded despite that the Commonwealth of Australia with hits highly paid lawyers seeking to enforce AVERMENT on 4 August 2005 before the magistrates Court of Victoria at Heidelberg, the commonwealth of Australia nevertheless ever since still in subsequent litigation against other citizens continue to use AVERMENT without disclosing, as I understand it, to the courts that it is not entitled to rely upon this legal provision as it is unconstitutional and they were defeated by me on this issue, that it is unconstitutional for the Commonwealth of Australia to dictate the State Courts how to conduct proceedings, etc. No one in his right mind can expect every citizen to be able to defend themselves nor being provided a FAIR and PROPER hearing where the highly paid lawyers of the commonwealth of Australia, for example Mr Peter Hanks QC, are perverting the course of JUSTICE by concocting Authorities having made certain findings which in fact are untrue. We have the lawyers in the Parliament and in the government and in the courts, where the judges so to say are to serve their political masters and the lawyers appearing before the bar are Officers of the Court who then have to sacrifice the rights and entitlements of their client to serve the Court. We have Registrars who are not Officers of the Court but are issuing court orders/warrants like lollies as if there is no tomorrow and we have now a private company that does the same and ignores any constitutional and other legal right of complainants. In the process many a person ends up to commit suicide and yet this unreported issue is ignored in general as after all it doesnt serve the politicians to expose their own rot. But there is more: A further issue is the wording of the Commonwealth Electoral Act 1918, such as
QUOTE Commonwealth Electoral Act 1918 p129 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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362 Voiding election for illegal practices etc.
(1) If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void.
(2) No finding by the Court of Disputed Returns shall bar or prejudice any prosecution for any illegal practice. (3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected, or declare any election void: (a) on the ground of any illegal practice committed by any person other than the candidate and without the knowledge or authority of the candidate; or (b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption; unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. (4) The Court of Disputed Returns must not declare that any person returned as elected was not duly elected, or declare any election void, on the ground that someone has contravened the Broadcasting Services Act 1992 or the Radiocommunications Act 1992.
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END QUOTE Commonwealth Electoral Act 1918
These parts (3) and (4) is basically dictating a court what it can or cannot do. If it was operating as a High Court of Australia exercising original jurisdiction then clearly this would be interfering with the judiciary.
QUOTE Commonwealth Electoral Act 1918
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363A Court must make its decision quickly
The Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances.
364 Real justice to be observed
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The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
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Again these parts are dictating the judiciary, that is if it is acting as a High Court of Australia exercising original jurisdiction what to do. Fancy the High Court of Australia to interfere in such manner with the legislators or the federal executives!
QUOTE Commonwealth Electoral Act 1918 367A Disposal of petition where election cannot be decided
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(1) The Court shall give its decision on a petition filed by the Electoral Commission under subsection 357(1A), and shall make an order on the petition, within 3 months after the day on which the petition was filed. (2) In the case of a petition under subsection 357(1A), subsection 360(1) applies as if for subparagraphs (v), (vi), (vii) and (viii) the following subparagraphs were substituted: (v) to declare a candidate elected; (vi) to declare the election absolutely void;.
368 Decisions to be final 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p130
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All decisions of the Court shall be final and conclusive and without appeal, and shall not be questioned in any way.
369 Copies of petition and order of Court to be sent to House affected, Governor-General and Speaker
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The Chief Executive and Principal Registrar of the High Court must, forthwith after the filing of the petition, give to the Clerk of the House of Parliament affected by the petition a copy of the petition, and, forthwith after the trial of the petition, give to: (a) that Clerk; and (b) in the case of a general election or a House of Representatives election the writ for which was issued by the Governor-Generalthe Governor-General; and (c) in the case of a House of Representatives election the writ for which was not issued by the Governor-Generalthe Speaker; a copy of the order of the Court.
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In my case the s75(v) application for issues such as MANDAMUS was outside the provisions of the Commonwealth Electoral Act 1918 as were the First Defendants. The High Court of Australia had no judicial powers to order the Governor-General/Governors what to do but it had judicial powers to declare the writs ULTRA VIRES for reason having been issued at least a day before the proclamation in the Gazette was published. By this, as like the decision of the High Court of Australia sitting as Court of Disputed Returns to hold the WA (Western Australia) Senate election held on 7 September 2013 to be invalid, the Court did not and neither can instruct the governor what to do by orders.
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380 Order to be sent to House affected
After the hearing and determination of any reference under this Part the Chief Executive and Principal Registrar of the High Court shall forthwith forward to the Clerk of the House by which the question has been referred a copy of the order or declaration of the Court of Disputed Returns.
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Firstly, where there is no right of appeal and without appeal then this undermines the ordinary processes of a Court exercising its jurisdiction. Hence, the wording and without appeal indicates that the Court is sitting as a Court of Disputed Returns for and on behalf of the Parliament, and not otherwise. Again, where the Governor-General/Governor were Frist defendants then this was beyond the scope of a Court of Disputed Returns. Also the High Court of Australia holding that no direct appeal was to the High Court of Australia from the Federal Court of Australia but that I should have first appealed to the Full Court of the Federal Court of Australia clearly contradicts also s353 of the Commonwealth Electoral Act 1918. On the one hand the High Court of Australia dealt with the matter as a issue within the powers of a Court of Disputed Returns with no appeal possible while on the other hand holding that I ought to have appealed first to the Full Court of the Federal Court of Australia. It basically is the judges themselves are ill-trained to deal with constitutional issues and as I understand it one judge , when appointed to the bench, refused to hand down a judgment in an appeal, where t3 judges were for the appeal to be upheld while 3 were dismissing the appeal and as result the appeal was dismissed. The one judge I understood refusing to hand down a judgment was because he didnt know the constitutional issue involved, having just been appointed to the court. To me this is an utter disgrace for a judge being paid to so to say go on
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strike and a n appellant then loses his case. Surely judges should be trained prior to being appointed to the bench of the High Court of Australia? Also, where there are ordinary litigations before the High Court of Australia then no provision exists for non-parties of the proceedings to be directed to be provided with a copy of the petition such as to either House of the Parliament. Only if the Governor-General/Governor. It must therefore be clear that the Commonwealth Electoral Act 1918 is specifically designed to have the High Court of Australia exercising no more but the powers of any House regarding elections but not as a High Court of Australia exercising original jurisdiction. The terminology The Chief Executive and Principal Registrar of the High Court must, forthwith after the filing of the petition, is a direction upon the Registrar (albeit not being an Officer of the Court to do something that may or may not ordinary where the High Court of Australia were to conduct hearings exercising original jurisdiction undermine the independence of the judiciary. I know of no Court rules that provide that a Registrar can be ordered to disclose details of litigation held before the High Court of Australia while exercising original jurisdiction. In my view, the only way this can be insisted/dictated upon is when the High Court of Australia exercises the function of persona designata for and on behalf of the Senate.
Hansard 25-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. O'CONNOR: You cannot ask a judge to serve two masters. END QUOTE
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In my view the Court cannot exercise both original jurisdiction as well as persona designata exercising original jurisdiction. As I view it the issue as to the status of (Senator) Heather Hill in itself should have been dealt with as a case stated to the High Court of Australia exercising original jurisdiction. While the same judges of the High Court of Australia may have had to determine this case stated nevertheless it would have separated the High Court of Australia exercising original jurisdiction from acting in the capacity of persona designata for and on behalf of the Senate. The following section 373 using the wording as if the order of the Court were a judgment of the High Court of Australia ought to underline that the High court of Australia is not and cannot be deemed to act as the High Court of Australia in original jurisdiction. After all it is either a judgment of the High Court of Australia or it is not and as such an order of the High Court of Australia sitting as a Court of Disputed Returns.
QUOTE Commonwealth Electoral Act 1918 373 Other costs
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All other costs awarded by the Court, including any balance above the deposit payable by the petitioner, shall be recoverable as if the order of the Court were a judgment of the High Court of Australia, and such order, certified by the Court, may be entered as a judgment of the High Court of Australia, and enforced accordingly.
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The wording may be entered as a judgment of the High Court of Australia , and enforced accordingly also indicates that the judgment is not and cannot be deemed to be a judgment of the High Court of Australia exercising original jurisdiction, as otherwise it would have been unnecessarily to have such provision included in the Act. The following also would be ridiculous if the High Court of Australia could exercise original jurisdiction. Clearly, the mere fact that the Parliament provided for the High Court of Australia to
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have powers to make Rules of the Court, which the High Court of Australia already possesses when exercising original jurisdiction must therefore be seen that the High Court of Australia when conducting hearings as a Court of Disputed Returns it is not exercising nor can be deemed to be exercising original jurisdiction but as a Court of Disputed Returns is permitted by the Parliament to on its behalf make Rules of the Court of the Court of Disputed Returns.
QUOTE Commonwealth Electoral Act 1918 375 Power to make Rules of Court
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(1) The Justices of the High Court or a majority of them may make Rules of Court not inconsistent with this Act for carrying this Part of this Act into effect and in particular for regulating the practice and procedure of the Court the forms to be used and the fees to be paid by parties. (2) Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to Rules of Court made under this section as if references in those sections of that Act to regulations were references to Rules of Court.
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The following section also must make it very clear that the High Court of Australia cannot operate in its original jurisdiction when conducting matters as a Court of Disputed Returns because section 375A would be a violation of the Court process if it were to allow the Parliament to dictate the court to allow access to the to documents. The Electoral Commission may hold that litigation before the High Court of Australia exercising original jurisdiction would be useful for the purpose of performance of his duties even so the litigation itself may not be relevant to the Electoral Commission. It would be an absurdity to allow this kind of interference into the court processes and hence this only can be justified if the High Court of Australia is acting as a Court of Disputed Returns and not exercise original jurisdiction.
QUOTE Commonwealth Electoral Act 1918 375A Right of Electoral Commission to have access to documents
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Unless the Court orders otherwise, the filing of a petition does not deprive the Electoral Commission of any right to have access to a document for the purposes of the performance of its functions.
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The following makes it also clear that the Court of Disputed Returns is to be acting for and on behalf of the House from which the matter is referred.
Division 2Qualifications and vacancies

376 Reference of question as to qualification or vacancy
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Any question respecting the qualifications of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.
377 President or Speaker to state case
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When any question is referred to the Court of Disputed Returns under this Part, the President if the question arises in the Senate, or the Speaker if the question arises in the House of Representatives, shall transmit to the Court of Disputed Returns a statement of the question upon which the determination of the Court is
desired, together with any proceedings, papers, reports, or documents relating to the question in the possession of the House in which the question arises
While the President of the Senate or the Speaker of the House may refer a question to the High Court of Australia exercising its original jurisdiction, this would be in regard of any legal issues that may arise in a House such as the constitutional validity of a Bill before the Parliament. Hence the clarification of the above relating to the members themselves or the lack thereof but not to the legal issues regarding the validity of Bills.
HANSARD 14-4-1897 Constitution Convention Debates QUOTE Mr. REID: If it appeared on the face of the Bill, we have to assume first that the Government would bring in a Bill which on the face of it was illegal, and that there would not be one pure soul in the House to call attention to it, and that even the immaculate Senate would not contain an angelic mind that would do its duty to the Constitution. Heaven help the Constitution if it is to be run on these lines! The Upper House will not allow its rights to be violated if they are put in the Constitution, and the object of the amendment is simply to prevent an unfortunate accident, which would happen over and over again in Acts of Parliament, from rendering an Act after it has received the Royal assent, and which might be, perhaps, the deliberate policy of the country, accepted by vast majorities in both Houses, invalid. I would not have proposed this amendment in face of the serious debate it has provoked. I proposed, if no member of the Convention has a previous amendment: END QUOTE
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Hansard 8-3-1898 Constitution Convention Debates QUOTE Mr. HOLDER.Surely there would be at least one representative out of the whole Senate and one member of the House of Representatives, who would have individuality enough, and strength enough, to get up and challenge the order of any particular measure which might be disorderly under this clause of the Constitution.
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Mr. ISAACS.-They would not all sit on the same side of the House. Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members of the Opposition, or all members of any particular party; and I cannot believe that any Bill which contained anything objectionable at all could pass through both Houses of the Federal Legislature without finding some one member of either of the two Houses who would rise to a point of order , and have such a Bill laid aside of necessity as being out of order under this provision. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE
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Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a proposed law has to go through, and the opportunity afforded to a member of either House or a member of the Executive to call attention to any infraction or infringement of the Constitution. It does not require a majority of the members of the House of Representatives to insist that the Constitution shall be obeyed in the matter of procedure; it only requires one solitary member to rise to a point of order , and the Speaker has to give a legal interpretation of the rules of procedure. It only requires one member of the Senate to call the attention of the President to the fact that a Bill is introduced contrary to the Constitution for that proposed law to be ruled out of order. It does not require a majority of the states to insist that the Constitu tion shall be obeyed, because a majority of the states cannot by resolution infringe the Constitution. Neither House could pass the standing order which would give the majority power to dissent from the Speaker's or President's ruling. The standing orders only confer certain explicit power. They give no power to either House to pass an order which would enable its members to amend the Constitution. END QUOTE
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As such, it should be clear that for the High Court of Australia to invoke original jurisdiction there must be a constitutional issue, but not a political issue for the Parliament. Where now the Federal Court of Australia can hear and determine matters as a Court of Disputed Returns it then
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obviously means that no original jurisdiction with the Federal Court of Australia and one would create the dubious situation that the High Court of Australia as a Court of Disputed Returns claims to be able to exercise original jurisdiction whereas the poor litigant directed to the Federal Court of Australia, as I was by the Registrar of the High Court of Australia then is denied such judicial powers. In my case Counsel for the Commonwealth and the AEC didnt even know that the Commonwealth Electoral Act 1918 was amended to provide for the Federal Court of Australia to hear and determine matters as a Court of Disputed Returns. In fact he was citing out-dated Authorities and also misstating Authorities. The following quotations are from submissions to the County Court of Australia on 19 July 2006 which were not challenged by the Commonwealth of Australia (AEC)
QUOTE ADDRESS TO THE COURT County Court of Victoria, Case numbers T01567737 & Q10897630
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It is not the counter argument itself that the Defendant is worried about, but the deceptive conduct employed in the past by the lawyers acting for the Australian Electoral Commission in their litigation to the extend as to deliberately replace words in what is claimed to be an Authority being quoted as to pretend to the Court that a judge made a certain ruling even so the ruling is a fraudulent version to deceive the Court. Such as Mr Peter Hanks QC did before the Federal Court of Australia and later again made a deceptive statement to the High Court of Australia. For example, checking the transcript of the hearing, it is noted that Mr Peter Hanks QC in his argument in point 22 and 22.1 of the OUTLINE stated the following;
25 QUOTE In Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to the general rule that not less than so many days refers to clear days unless the context or the statutory intention reveals a contrary intention. END QUOTE His quotation is again false and misleading! 22 Mr Peter Hanks QC quoted of the judgment the following; QUOTE unless the context or the statutory intention reveals a contrary intention END QUOTE This ought to be; QUOTE unless the context or the subject matter reveals a contrary intention END QUOTE Clearly, that is a gross deception. In legal terms there can be a significant difference in a case for the Court to deal with a statutory intention versus subject matter. 45 Mr Peter Hanks QC stated to the Court (7 November 2001); The researches of counsel have been unable to find provisions using simular language (not less that or at least a number of days) where the language is as clear and specific as found in ss156(1) and 157. Thousands upon thousands of Internet references can be found upon a search shall not be less than or shall not be less that. As such this statement by Mr. Peter Hanks QC for the Australian Electoral Commission was a fraudulent statement. Likewise other statement were found by the defendant to be deceptive and/or misleading.
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We also have the fact that Counsel Mr peter Hanks QC argued the authority of the 5 ASSOCIATED DOMINIONS ASSURANCE SOCIETY PTY. LTD. v. BALMFORD (1950) 81 CLR 161 What counsel did however was to make a false and misleading presentation of what the case really was on about. As the authority stated: The notice actually served did not "specify" such a period: it "specified" a period which was too short by one day, and the Acts Interpretation Act does not affect this position. 15 Mr Peter Hank QC didnt argue that the authority wasnt relevant, to the contrary he argued its relevance only by misrepresenting how it applied and what the authority really was on about. As such, it had nothing to do with within as Mr Peter Hanks QC argued as clearly the usage within was in a different context and not at all as Mr Hanks sought to imply and did imply. It ought to be considered a serious matter that a barrister employs these kind of tactics, indeed deceptive tactics, but it seems the Australian Electoral Commissioner does not seem to worry about the means as long as it achieves his end results. Because I expect the Commonwealth Director of Public Prosecutions to come up with any nonsense and unable to verify the correctness of any claims they may make about any AUTHORITY they may refer to I am left no alternative but to present my own research. Lawyers are OFFICERS OF THE COURT but I experienced that when it comes to the Australian Electoral Commissioner being the instructing party then it seems to me from experiences their oath of alliance is worthless and they cannot be trusted, as set out also further in this ADDRESS TO THE COURT. It is my view, that had Mr Peter Hanks QC not concealed matters and not presented fraudulent Authorities and how they applied then the Federal Court of Australia would not have ruled that it had no legal jurisdiction, and would in fact have granted the orders I sought. And in the end this case would never have eventuated before this Court as then matters could have been addressed appropriately before any federal election had been held! I take the position that Subsection 245(14) of the Constitution is not and cannot be regarded to limit the right of a objection to be only a (theistic belief ) religious objection but includes also any secular belief objection. 40 If Subsection 245(14) was limited to being theistic belief then it would be unconstitutional.
QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006
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WITHOUT PREJUDICE Commonwealth Director of Public Prosecutions 4-6-2006 C/o Judy McGillivray, lawyer Melbourne Office, 22nd Floor, 2000 Queen Street, Melbourne VIC 3000 GPO Box 21 A, Melbourne Vic 3001 Tel 03 9605 4333, Fax 03 9670 4295 ref; 02101199, etc T01567737 & Q01897630 AND WHOM IT MAY CONCERN Re; religious objection (Subsection 245(14) of the Commonwealth Electoral Act 1918) offend Section 116 if the Constitution if it excludes secular belief based objections.
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Madam, As you are aware I continue to refer to my religious objection albeit do wish to indicate that while using the religious objection referred to in subsection 245(14) of the Commonwealth Electoral Act 1918 I do not consider that this subsection 14 limits an objection only to an theistic belief based religious objection but in fact it also includes any secular belief based religious objection, as it must be neutral to whatever a person uses as grounds for an objection. This, as Section 116 of the Constitution prohibit the Commonwealth of Australia to limit the scope of subsection 245(14) to only theistic belief based religious objections. Therefore, any person having a purely moral, ethical, or philosophical source of religious objection have a valid objection. Neither do I accept that a person making an religious objection requires to state his/her religion, and neither which part of his/her religion provides for a religious objection as the mere claim itself is sufficient to constitute what is referred to in subsection 245(14) as being a religious objection. Therefore, the wording religious objection is to be taken as objection without the word religion having any special meaning in that regard. If you do not accept this as such, then there is clearly another constitutional issue on foot! I request you to respond as soon as possible and set out your position in this regard. Awaiting your response, G. H. SCHOREL-HLAVKA
END QUOTE 4-6-2006 CORRESPONDENCE FAXED 10.36 pm 4-6-2006 END QUOTE ADDRESS TO THE COURT County Court of Victoria, Case numbers T01567737 & Q10897630 QUOTE ADDRESS TO THE COURT County Court of Victoria, Case numbers T01567737 & Q10897630
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The Defendant submits, that albeit the Defendant is not required to give any evidence as to the precise grounds of religious objection nevertheless some details have been set out which indicate that the Defendant for many years had such religious objections. No duty was upon the Defendant to specifically refer to this to the Australian Electoral Commission when it questioned about their alleged failure to vote, as all along the Defendant contested the validity of the Australian Electoral Commission to do so where the Defendant all along had his constitutional based objections on foot against the elections being held. Considering other matters set out extensively the issue of if the Defendant voted and if not why not is not relevant unless and until first all constitutional based objections have been appropriately dealt with. If for example the Courts were to declare that indeed section 245 of the CEA1918 is beyond constitutional powers then it was so ab initio and it then is clearly for this also not relevant if the Defendant did or didnt vote, and if he did not vote why not as there is no legislation applicable for this. Indeed , the Defendant in his correspondence to the Australian Electoral Commission made known that Fact sheet 17, that was provided by the Australian Electoral Commission about various court decisions (authorities) regarding VOTING that none of them were deemed by the Defendant to be relevant as they did not reflect the intentions of the Framers of the Constitution. IN RE WOOD (1988) 167 CLR 145 F.C. 88/018 END QUOTE
"The election is either valid or invalid. If invalid, the reason of the invalidity is not material so far as regards its consequences. We think it follows that, upon the avoidance of the election itself by the Court of Disputed Returns, the case is to be treated for all purposes, so far as regards the mode of filling the vacancy, as if the first election had never been completed, unless there is something in the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" Constitution to lead to a contrary conclusion."
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END QUOTE
The following details were shown on the FREEDOM OF INFORMATION released computer records of the Commonwealth of Australia as to copies of the Gazette having been transferred, after printing. 11/03/02 GO BOI 53/2 11/10/01 GO SGAZ421 . 9/10/01 GO CAS0153391 9/10/01 GO ICN0910ADL 9/10/01 GO ICN1076CAN 9/10/01 GO ICN0907MEL 9/10/01 GO ICN0886PER 9/10/01 GO ICN0881TOV 8/10/01 GO FGS0153363 8/10/01 GO FGS0153363 GAZETTES Subs Issue Trf to CA ICN to AD ICN to CA ICN to ME ICN to PE ICN to TH CANPRINT CANPRINT Wr-Off Adj Dist Transfr Transfr Transfr Transfr Transfr Transfr PO-Fins Receipt 20 -6 -2 -1 -3 -1 -1 -1 35 35 0.20 -0.06 -0.02 -0.01 -0.03 -0.01 -0.01 -0.01 0.35 0.35 MGIRVAN HEMSAN BMO5IAI DCRANE DCRANE DCRANE DCRANE DCRANE GHANNA GHANNA
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CA AD CA ME PE TN
ZZ ZZ ZZ ZZ ZZ ZZ
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While 35 copies of the Special Gazette S421 was requested to be printed and the computer records show they were on 8 October 2001, it also shows that not until 9 October 2001 first 2 copies and later a further 3 copies had been transferred to Canberra (CA) As such the Proclamation was not published until at the earliest 9 October 2001, and therefore in regard of all writs governing the House of Representatives and the Senate sets for the territories there were no vacancies when the writs were issued on 8 October 2001. Despite a request by the Defendant in his 19 September 2002 correspondence, for example, to the Australian Electoral Commission as to provide certain details to prove the validity of the elections basically little had been forthcoming and no evidence at all as to the Proclamation in fact having been published on 8 October 2001! To the contrary, evidence provided proves that not until 9 October 2001 the proclamation was published in Canberra and on later dates in States and Territories. As such, where the writs were for this also defective then none of the members of the House of Representatives were validly elected and neither the Senators for Territories. IN RE WOOD (1988) 167 CLR 145 F.C. 88/018 QUOTE
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The return does not meet the exigency of the writ (Drinkwater v. Deakin, at p 638) because Senator Wood was incapable of filling the 12th place. That is not to say that, putting to one side "a mere abuse of the right of nomination or an obvious unreality" (Harford v. Linskey (1899) 1 QB 852, at p 862 and cf. Pritchard v. Mayor, &c. of Bangor (1888) 13 App Cas 241), the Electoral Officer who makes a return has authority himself to determine the qualifications of a candidate (who declares and maintains that he is duly qualified: HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s170.html" s.170 (a)(ii) of HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Act ) or to refuse to return the name of an otherwise successful candidate whose qualifications are in issue: see HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/s172.html" s.172 of HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Act and Evans v. Thomas (1962) 2 QB 350. But the performance by the Electoral Officer of his ministerial functions in these respects does not determine the validity of the return or the efficacy of the election of an unqualified person to a vacant place in the Senate.
END QUOTE
Clearly, the declaration by the Commonwealth Electoral Commission itself did not purportedly validate the election and neither any candidate declared elected where there was no valid election. 5 Where then Mr John Howard was not elected in 2001, so neither others, then he neither could have been Prime minister for any longer then 3 Months, as Section 64 limits the appointment of a non elected person to no longer then a period of three months. 10 Hence, Mr John Howard was neither then Prime Minister to advise the Governor-General for a general election in 2004! Indeed, neither was Mr John Howard in any legal position to be involved in the appointment of the Governor-General Michael Jeffrey and as such that also the appointment also is unconstitutional and invalid (without legal force- ULTRA VIRES). THE DEFENDANT SUBMITS, THAT WITHOUT A GOVERNMENT OR A CARE TAKING GOVERNMENT IN OFFICE THE COUNTRY GRINDS TO A HOLD. Where there was no valid government since November 2001 then neither was there any authority for the Australian Electoral Commission to pursue the Defendant as to alleged breaches of law, and the Commonwealth of Public Prosecutions (Prosecutor) neither for this could have legal authority to pursue the Defendant regarding the alleged FAILING TO VOTE in the purported 2001 Federal election and the purported 2004 Federal election. As the Senate elections also were ULTRA VIRES, because the writs had not been issued according to relevant legislative provisions, then when half of the senators retired in 2002 there were no duly elected replacements for them. Further, when the half of the Senate that retained their seat in 2002 retired in 2005 then not a single Senator was left in the Senate as none had been duly elected. All Bills passed since 2001 are for this also NULL AND VOID and without legal force.
END QUOTE ADDRESS TO THE COURT County Court of Victoria, Case numbers T01567737 & Q10897630
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Considering that after the 3 months of being commissioned (s64 of the constitution) Prime Minister in 2001 John Howard no longer was so in view that he was not validly elected to the Parliament nor any other candidate validly made a Member of the House of Representatives, then none of them either were Ministers at the time of the Invasion into Iraq. While this may be ignored, legally this matter is very serious because we have now a court system that ignores the merits of a case just so to say shore up their political masters.
QUOTE Commonwealth Electoral Act 1918 383 Injunctions
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(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the Federal Court) may, on the application of: (a) in a case where the conduct relates to an electiona candidate in the election; or (b) in any casethe Electoral Commission; grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing. (2) Where:
(a) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and (b) the refusal or failure was, is, or would be, a failure to comply with, or an offence against, this Act or any other law of the Commonwealth in its application to elections; the Federal Court may, on the application of: (c) in a case where the refusal or failure relates to an electiona candidate in the election; or (d) in any casethe Electoral Commission; grant an injunction requiring the first-mentioned person to do that act or thing. (3) Where an application is made to the Federal Court for an injunction under subsection (1), the Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application. (4) The Federal Court may discharge or vary an injunction granted under subsection (1), (2) or (3). (5) Where an application is made to the Federal Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the person has engaged in conduct of that kind whether or not it appears to the Federal Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kindwhether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. (6) Where an application is made to the Federal Court for the grant of an injunction requiring a person to do a particular act or thing, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the person has refused or failed to do that act or thingwhether or not it appears to the Federal Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
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(b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing whether or not the person has
previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.
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(7) Where the Electoral Commission makes an application to the Federal Court for the grant of an injunction under this section, the Federal Court shall not require the Electoral Commission or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages. (9) An appeal lies to the High Court from a judgment or order of the Federal Court exercising jurisdiction under this section. (10) The powers conferred on the Federal Court under this section are in addition to, and not in derogation of, any other powers of the Federal Court, whether conferred by this Act or otherwise.
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END QUOTE Commonwealth Electoral Act 1918 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p140
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Transcript of the proceedings before Marshall J on 7 November 2001 proves that I did set out the court had jurisdiction as the Act was amended, whereas Mr Peter Hanks QC for the Commonwealth of Australia and the AEC pursued that only the High Court of Australia had jurisdiction. Marshall J held subsequently there was no jurisdiction, this even so the Act proved otherwise. A combination of this and the fraudulent submissions by Mr Peter Hanks QC resulted that an invalid election went ahead. It also proved that when it comes to elections any Prime Minister can ignore statutory provisions and pervert the course of justice, and hold elections contrary to what is statutory provided for and so make a mockery of legislative provisions. This enhances dictatorship. The Governor-General and Governors rely upon the advice of the Prime Minister who in turn relies upon the advice of the Australian Electoral Commission. What we have there are no check and balances and the AEC being the culprit to provide the incorrect details then use this nevertheless to excuse itself. The same could be pursued by any Royal Commission as to disregard what is constitutionally appropriate and ending up no more but so to say a political football for the politicians in power.
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Hansard 6-3-1891 Constitution Convention Debates QUOTE Mr. THYNNE: I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says: One of the characteristics of a federation is that the law of the constitution must be either legally immutable or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution. That opens up a matter of very large consideration for this Convention. In the first place, what is the authority above and beyond the legislatures which is to have the power of changing the law of the constitution, or of regulating it in any form? The answer, of course, is that it is the people of these colonies who are to be charged with that important function; and I would, therefore, point out-and I think several hon. members who have had considerable experience in leading what may be called democratic parties in these colonies have forgotten for a moment-what the democracy of Australia is to be. END QUOTE
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I for one cannot and do not accept that judges of the High Court of Australia can retrospectively rob me of being a Subject of the British Crown and that is what effectively they did or purportedly did by the Sue v Hill judgment.
HANSARD 19-4-1897 Constitution Convention Debates QUOTE
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Mr. KINGSTON: It seems to me that section 82 more properly deals with the powers of the Commonwealth with reference to various matters, that clauses 83 and 84 deal with incidental matters, clause 85 deals with what is to happen until uniform duties are imposed, and that clause 86 deals with what shall happen so soon as the powers referred to as regards the imposition of uniform duties have been exercised by the Commonwealth. Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill, there are several clauses not quite in their right place in it, and it would be well to alter their order. The Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses. With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of Statutes," 1st edition, page 192, this passage: It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts, that the presumption against a retrospective operation is strongest. Every Statute which takes away or p141 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus the provision of the Statute of Frauds, that no action should be brought to charge any person on any agreement made in consideration of marriage, unless the agreement were in writing, was held not to apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8 & 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or maintained for a wager, applied only to wagers made after the Act was passed. Sir GEORGE TURNER: There is no doubt about those cases, I should say. Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary. Mr. SYMON: Hear, hear.
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END QUOTE QUOTE 19-7-2006 ADDRESS TO THE COURT -County Court of Victoria
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Where then Mr John Howard was not elected in 2001, so neither others, then he neither could have been Prime minister for any longer then 3 Months, as Section 64 limits the appointment of a non elected person to no longer then a period of three months. Hence, Mr John Howard was neither then Prime Minister to advise the Governor-General for a general election in 2004! Indeed, neither was Mr John Howard in any legal position to be involved in the appointment of the Governor-General Michael Jeffrey and as such that also the appointment also is unconstitutional and invalid (without legal force- ULTRA VIRES).
QUOTE 19-7-2006 ADDRESS TO THE COURT -County Court of Victoria HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. LYNE: First of all, he raised the question of the appointment of the Governor-General for the Federal Executive. Now, I think there is no desire on the part of any large section of this community to take what I may term the first step towards a severance from the mother-country, but the first step would be in the election of the Governor-General instead of allowing his appointment to be made by the Home Government. It is but a small connecting link between the Australasian colonies-between a Federated Australia and the mother-country-to allow the appointment to be made by the Home Government; and I should like to know what power that Government would have over any Governor-General elected in the manner desired. END QUOTE HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. END QUOTE
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Re- appointment Governor-General: 50 HANSARD 1-4-1891 Constitution Convention Debates QUOTE

people of the colonies? Sir GEORGE GREY: I am afraid I shall lose my chance of moving an amendment to this clause if I do not do it at this stage. I move: p142 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted with a view to the insertion of the words "There shall be." The intention is that the governor may be elected. I feel that in bringing this subject under the notice of the Convention I am entering upon very delicate and very debatable grounds But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the manner in which this question is dealt with. This is a question of the interests of nearly 4,000,000 persons at the present moment who look to us; and it appears to me extremely inexpedient that the power of appointing the governor-general to rule so vast a confederacy should be left in the hands of any minister of the day in Great Britain. The terms used are "the Queen shall appoint"; but we all know perfectly well that that means that the minister for the time-being shall appoint such person as he pleases, whilst such appointment might be absolutely obnoxious to her Majesty herself. The meaning of the thing is that a friend or any other person chosen by the minister may be appointed without the people of this great confederacy being in any way consulted. I understand that the reason usually alleged for that by persons who support the appointment being made by the Queen is that a social appointment is to be made. That is the term usually applied-it is a social question, and not a political question. I contend that the question is twofold, and those two things cannot be separated. The governor has political functions to exercise and he has social functions to exercise, and in either case I hold that a person so appointed is much less fitted to exercise those functions than a governor-general chosen by the people of the country would be. I do not understand how it can be said that any social ends whatever, or, at all events, of [start page 562] any magnitude, are attained by the appointment of the governor-general by the Crown; but I do hold that social ties and social questions of the strongest possible kind require that the governor-general should be elected by the people of the confederacy. Take the case of a widowed mother, herself well educated, perhaps brought up as a teacher in one of your public schools, and possessing great ability; imagine her with her orphaned children, deprived of a father, night after night teaching those children, with a hope that the highest offices of the state of every kind may be open to them all. Is not that a social question-a social gathering of the highest and noblest kind? And hundreds, I may say thousands, of such social gatherings would be witnessed every night in this great commonwealth, if all the highest offices of state were filled by election by the people. If you follow it out, you will find that in all social relations of the family-fathers, mothers, children, brothers, sisters-this question is intimately concerned as being something which binds the whole family together for common objects, and opens paths of distinction to every one of them, if they prove themselves great and deserving men. Why should you say to all these 4,000,000 of people, "No one of you, nor any one of the other millions who are to occupy this country, shall have the slightest chance of ever attaining to an honor of that kind"-that it shall always be open, as it certainly, or almost certainly would be, to distant persons with no claim whatever upon the inhabitants of this country, all of whom would be shut out from so great an opening as that of which I speak? It is more materially necessary that we should consider this point now, and that we should come to a just decision upon it, because I will show hereafter, as the discussion on the bill proceeds, that in every instance all hope is shut out from the great masses of the colony to succeed to any one of the important posts which under this bill will be open to the people of Australia. I say that, looking to our duty to our Sovereign, we owe it to her to select the worthiest man we know to represent her here-to be certain that the man so chosen is worthy to represent her; and in no other way than by his being chosen by ourselves from people whom we know can we be certain that the worthiest man will be chosen to represent the Queen within the limits of the great confederacy which we are about to constitute. Considering the openings that would be given to every inhabitant of Australasia under such a system as I propose, with so many families, as will necessarily do it, directing their every exertion and effort to raise up children worthy of the great opportunities laid open to them, I ask whether this is not to us a greater social question than a few balls and dinners given at Government House, at which none but those in the immediate vicinity can be present? I ask what comparison is there between these two things-one great and far-reaching, extending to millions, the other a mere sham, as it were, representing what passes in another place, as if one were looking through the wrong end of a telescope at some procession that was going on? All matters connected with Government House are diminished here as compared with Great Britain and the influence exercised there. There it is the influence of an hereditary monarch descended from a long line of ancestors. There it is the influence belonging to certain professions-the army and navy-who look to receiving honor from the hands of such a sovereign. Here there are no ties whatever of that kind; and yet for a mere imaginary show, or what is called the performance of social duties-entertaining strangers and also citizens immediately surrounding the viceregal court, which are the only benefits that are abso- [start page 563] lutely gained-all those benefits that I speak of are lost. Let us look at it in another way, which is also worthy of our consideration. What is the necessary consequence of having a governor-general of this kind, with an enormous salary, and vast expenditure upon various subjects-a salary more than adequate to the duties to be performed? You will find set down in this bill a salary of 10,000 a year. p143 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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END QUOTE You cannot have that without any amendment to the constitution authorised by way of referendum by the people politicians can twist and infringe upon the true meaning and application of the constitution as they desire. Since Isaac Isaacs was appointed without recommendation by the Home Government we effectively had since then no valid appointment of a Governor-General. The delegates to the Constitutional Convention held that it would not be appropriate to have a political appointment as Governor-General either by the Australian Government or elected by the people as this could cause friction. Without a validly appointed GovernorGeneral there can be no validly appointed commissioner to conduct a Royal Commission. I do not promote anarchy as we already are under an anarchy/dictatorship with the compliments of the judiciary and the politicians manipulating whatever to get their way. I seek a return to democracy, to the true meaning and application of the constitution but I can have hope in hell to achieve this unless there is a VELVET REVOLUTION to reclaim our constitutional and other legal rights. End Set out of the High Court of Australia jurisdiction and validity of judgment The judges in Sue v Hill & Anor S179/1998 (13 May 1999) were; 20
Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE GLEESON CJ GAUDRON J McHUGH J GUMMOW J KIRBY J HAYNE J CALLINAN J END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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MR ELLICOTT: The persons who were British subjects, my client, for instance, if adult, if 18 - I think 18 applied then - would have been entitled to stand for Parliament. HAYNE J: What is the principle or proposition that this argument is deployed in aid of, Mr Ellicott? What is the proposition you are advancing? MR ELLICOTT: The proposition I am advancing, your Honour, is that it is often said that this Court will consider matters in the context of events which had occurred since Federation. If it be the fact that there is unfairness and inequality in our community as a result of the application of a particular decision, then that is a matter that the Court ought to take into account. END QUOTE
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Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE GUMMOW J: For the purposes of section 44. MR ELLICOTT: There are reasons which I will advance why the international law test, even if it is not the applicable law, is worthy of consideration. That is to say, to ask in each case, where does the real loyalty of the person lie? Now, we would say, on the facts before you, that our clients real loyalty, indisputably, lies with Australia. There is no doubt about it. She has been here since 1971; she has married here; she has two children here. She has only been out of the country to visit relatives in the United Kingdom, yes - - McHUGH J: Yes, but she took out a British passport. MR ELLICOTT: Yes, she had to. p144 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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McHUGH J: And she owed her allegiance. Lord Haw-Haw, who was an American citizen, Joyce was hung because he had a British passport even though he was an American citizen - he was hung for treason. MR ELLICOTT: Your Honour, there are - hard cases do not make good law, your Honour, and that is a pretty hard case. We would submit that looking at the matter in its broad context, that a person who has - like the two people in Sykes v Cleary, have been here for 40 years and they have taken out Australian citizenship and sworn oaths of loyalty, and then they are told, having lived here for 40 years, that they cannot stand for Parliament. HAYNE J: At some point the argument has also to confront, does it not, the fact that although citizenship is one of the matters dealt with in 44(i), there is also reference to entitlement to "rights or privileges" as well, also, as "acknowledgment of allegiance", et cetera. MR ELLICOTT: Yes. HAYNE J: Although, of course, the argument largely focuses on citizenship, 44(i) is by no means restricted to that. MR ELLICOTT: No:
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entitled to the rights or privileges of a subject or a citizen Now - - HAYNE J: And entitlement in this respect to a right or privilege may be said against you to include the right or privilege to a passport.
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MR ELLICOTT: Yes, but if they have done it for limited reasons or if they have never taken up other rights or privileges, it is possible to conclude as a question of fact that they have done all that is reasonably necessary to renounce their foreign citizenship. CALLINAN J: Mr Ellicott, I think some children of people who are born in the United Kingdom, children of parents who are born in the United Kingdom but who themselves were born in Australia, have various rights and privileges of working in the United Kingdom not enjoyed by other Australian citizens.
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MR ELLICOTT: Yes. I am saying in relation to that that if you find that people are not taking up those rights in any way which would be inconsistent with their renunciation of Australian citizenship, then that can be taken on board as just one of the facts. CALLINAN J: What I am suggesting is that a literal reading of rights or privileges might operate to disqualify a much larger number of people than even the number you have suggested, for the reason that I put to you. END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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HAYNE J: In 1900, did South Africa or did Canada constitute a foreign power? MR ELLICOTT: No. HAYNE J: Does either of them now? MR ELLICOTT: They may, but that is for different reasons. KIRBY J: What about Burma.
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MR ELLICOTT: No, it may not have in 1900. It does now. KIRBY J: So you do acknowledge a change in content. MR ELLICOTT: No, but I am concerned about the United Kingdom and I am - - KIRBY J: I know you are concerned, but we have to test it by a general proposition. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p145
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MR ELLICOTT: - - - concerned about the special relationship which exists and has existed beyond 1900 and before 1900, and I am concerned to direct the Court to that relationship. It is not about whether - and your Honours can ask questions and ask me to answer them in relation to the dominion of Canada or New Zealand and ask me whether they are foreign powers, I have to answer yes, they are foreign powers - but so far as the United Kingdom is concerned, it is our submission that the United Kingdom is not a foreign power and never was and whilst the Constitution remains as it is, never will be. In other words, it is an immutable part of the Constitution and it is ingrained in its meaning, I would submit, and that is because it was antipathetic, not just to political and social thoughts in 1900. It was antipathetic to the Constitution for the simple reason that the Constitution is enacted in a United Kingdom statute. It is a product of United Kingdom law. It still is a product of United Kingdom law and it still, not only historically, but finds its basis in United Kingdom law. KIRBY J: I think in your written submissions you said that only Justice Murphy had expressed a different view and that that had not found favour, but I do not think that is correct. I think that a number of the Justices in more recent times have said that though it is true historically, the Constitution began as an enactment of the United Kingdom Parliament at some stage in the last century. The fundamental basis of it is recognised as the people of Australia: they made it; they took it to London in those days for it to be enacted; they alone can amend it; their judges interpret it; and, therefore, that in the hundred years, the fundamental foundation of it has changed and is now recognised as the people of Australia and their will. MR ELLICOTT: Yes. Your Honour I do not - - KIRBY J: I do not think that was just a view of Justice Murphy.
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MR ELLICOTT: - - - equate the two matters, your Honour. I do not equate them with the Justice Murphy view. The Justice Murphy view was laid - - KIRBY J: I think the distinction of Justice Murphy was that it all changed in 1901. MR ELLICOTT: The Justice Murphy view was quite convincingly laid to rest in the judgment of Justice Stephen in the China Case. But so far as the proposition your Honour has put to me, yes, there is as much "we the people" in our Constitution as there is in the United States Constitution, but it is nevertheless part of an enactment of the United Kingdom Parliament, and it still is. There is no question of it. It still is. Why did we go, why did we go to London in 1986 to get the Australia Act passed. Were we talking to a foreign power? KIRBY J: That is a very good question.
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MR ELLICOTT: Well, I will put another question, your Honour. Why - what was I doing with Mr Whitlam in 1973 in April when I sat down with him and over the other side of the table was Mr Heath the Prime Minister of England and the law officers, and asked them to pass a law of the United Kingdom Parliament to abolish appeals to the Privy Council? Were we talking to a foreign government? We were not talking to a foreign government. Why is the Royal Style and Titles Act reserved for the opinion of the assent of the Queen? The fact is that Australia politically, whatever the Judges might think, has accepted that, and I would have thought that Justice Mason in Kirmani's Case accepted, and that was in 1985, that there was a living relationship between Australia and the United Kingdom. KIRBY J: No one doubts that. That is not the question.
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MR ELLICOTT: Your Honour, it is a relationship in law. It is not just a part of history. It is a legal relationship, and that is why the Australia Act was passed. GUMMOW J: I know, but having been passed, section 1 of that is a statement by the United Kingdom Parliament that hereafter no Act of that legislature: shall extend.....to the Commonwealth, to a State or to a Territory -
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Why is that any different from the section of the Indian Independence Act of 1947? MR ELLICOTT: If we had had a Treaty of Paris, that might have been - - McHUGH J: Which one? There are a number of them. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p146
MR ELLICOTT: If we had had a treaty with the United Kingdom, if we had revolted or gone about the matter another way, that may be different. GUMMOW J: This is very important. Are you saying the British Parliament - - MR ELLICOTT: I am saying the British Parliament still has - - -
GUMMOW J: - - - can repeal section 1 of their Australia Act? MR ELLICOTT: Theoretically, yes. It never will, but theoretically, yes. GAUDRON J: And we judge that by our law or by their law? It is the same question. There is a choice of law rule now to be applied; must be.
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MR ELLICOTT: Your Honour, as lawyers, one has to find the source of power, and if it is a statutory provision such as the Constitution, where did it come from - - GUMMOW J: And where is it now? MR ELLICOTT: Yes, but, your Honour, you cannot just divorce oneself and say it never existed, otherwise the judicial method disappears.
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McHUGH J: It is a question of identifying sovereignty. Sovereignty is basically a political concept. I appreciate it is a legal concept in a sense, but sovereignty must now reside in the Australian people, although prior to 1986, in my view, it resided in another place. END QUOTE
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In my view the 1986 Act not being a Constitution Act couldnt have altered the true meaning and application of the Commonwealth of Australia Act 1900 (UK) one of an iota. Again:
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It was an act by the will of the people and not by the will of a then non-existing Government/Parliament, that was created by the constitution. And as I have referred to below the legal principle was enshrined in the constitution that any person coming from the United Kingdom being a subject of the British Crown taking up residence in the Commonwealth of Australia would by this obtain citizenship, being a political status and be entitled (if at the correct age) to become a Member of the Federal Parliament.
Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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MR ELLICOTT: Your Honour, I would submit - - McHUGH J: And I have said so. I said it in McGinty, notwithstanding some theoretical difficulties about it, that sovereignty now resides in the Australian people. MR ELLICOTT: I would submit that sovereignty resided in the Australian people a long time before that, that this country was a sovereign nation - - 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p147
HAYNE J: In what sense are you using that expression? Without care, the expression "sovereignty" obscures much more than it illuminates. Are you referring to it being a sovereign nation in the sense of being able to transact dealings internationally, or are you talking about the source of power to enact laws that have effect within this country?
MR ELLICOTT: I am talking in the statement I made about its position in the world of nations. That is to say, it is an independent nation, and its nationhood, its sovereignty as a nation, undisputedly has existed for many decades. The difficulty of saying when it occurred need not trouble the Court at the moment but the other question of the power - that is the sovereign power of Parliament - we would submit, still has to be answered, albeit theoretically - - GUMMOW J: But when you say "theoretically", what do you mean by "theoretically"? MR ELLICOTT: "Theoretically" simply means that they would never exercise it. END QUOTE
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Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE MR ELLICOTT: I am looking at reality. The United Kingdom Parliament could theoretically pass a law. It is not going to pass such a law. In practical terms, the only way of amending it is under section 128. HAYNE J: Could I understand what you mean by this theoretical possibility? Let it be assumed that the Westminster Parliament, for whatever reason, chose to pass an Act which repealed section 1 of the Australia Act of the United Kingdom. Would not the question then become: what if any consequence in Australian law is to be given to that repeal? MR ELLICOTT: Yes. HAYNE J: And what do you say is the consequence that should be given to that repeal?
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MR ELLICOTT: The consequence of that would be, the Australia Act had been repealed, to that extent, and as in force in Australia. McHUGH J: Well, that is a question what the judges would do about it. I mean, in Madzimbamuto's Case, or whatever it is in the Privy Council, the Privy Council at first said what was done in Rhodesia was illegal, but eventually the judges came to recognise the Smith regime, and that was the end of it; sovereignty then resided in the Rhodesian people.
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MR ELLICOTT: But we do not have to that. END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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McHUGH J: Well, I know we do not, but for my purposes it may be important to determine whether or not, as you claim, sovereignty has always resided in the Australia people or, as I suggested to you, it only became vested in the Australian people in 1986. Now, if you take Lord Bryce's view, in his studies of history and jurisprudence, under a rigid Constitution ultimate sovereignty resides in the body that can make and amend the Constitution. Now the people, in that sense, are never silent, because they share it with the Parliament under section 128; the Imperial Parliament, the Queen in Parliament did not. It could make the Constitution, it could amend it, but in 1986 it abandoned that claim. Thereafter, surely sovereignty must reside in the Parliament and the people under section 128. GAUDRON J: And not only did the United Kingdom Parliament abandon it, the Australian Parliament also enacted that no law of the United Kingdom Parliament would extend to Australia.
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MR ELLICOTT: Yes, and did so under the external affairs power. KIRBY J: And that, in my humble view, was enough; I do not know, and I will never know, why we went to the United Kingdom to ask a foreign Parliament to enact matters relevant to our laws. MR ELLICOTT: Well that is because it was not a foreign Parliament, your Honour. Your Honour has a view about it, but it is not a foreign Parliament, and - - p148 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
KIRBY J: Well, by 1986 they had no business enacting laws in relation to Australia. MR ELLICOTT: That, with respect, is a political statement and not, with respect, one that is - - KIRBY J: No, you yourself acknowledged, Mr Ellicott, that we do not have to trouble at what point this change occurred, but that it occurred is undoubted and ultimately the foundation of a constitutional arrangement must be fact. MR ELLICOTT: Justice Hayne asked me a question, which arose out of something I had said to Justice McHugh which was, with respect, properly put to me to make a distinction. The sovereignty, that I am referring to is existing for some time, is, what is spoken about here, Australia as a sovereign independent and federal nation in the Australia Act. It acknowledges that we are a sovereign independent and federal nation and that is something we had always - when I say "always", for many years prior thereto been. There were some people who were troubled by some United Kingdom ties, but the fact was, legally, we were sovereign independent and a federal nation, and this Australia Act did not affect that. What it did do is either, we would submit, enacted provisions which, by their force, mean that the United Kingdom Parliament can go on passing laws, but they will not have any effect in Australia, because the Australian Parliament under the external affairs power, has passed a law saying that they shall not operate. GUMMOW J: Well, it was under section 51(xxxviii), I think, Mr Ellicott. McHUGH J: There was a reference under 51(xxxviii) by the States, not the external affairs power, it was done under 51(xxxviii). That is the Australia Act.
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MR ELLICOTT: Yes, your Honour. But, so far as the external affairs power is concerned, it would support section 1. It would support section 1 because it is an external affair that any law of the United Kingdom, whatever its status is for the purposes of our argument, it is, indeed, an external affair because - - McHUGH J: But it is subject to the Constitution - 51 is subject to the Constitution. MR ELLICOTT: Yes, I appreciate that, but, nevertheless, there is nothing that would exclude the external affairs power from supporting section 1. We would submit that, theoretically, and it is immensely theoretical, the link has not been severed in a legal sense. It is still there and it will never have any - - McHUGH J: I do not know whether it means in a legal sense, and it really means - the issue is whether or not the courts of this country will take their law from England, or France, or the United States, or now from our legislatures.
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MR ELLICOTT: Can I put it this way? If the Commonwealth Parliament had not passed the Australia Act itself, then we would submit that the United Kingdom Act could be repealed and that it would, therefore, not have severed the link and that it does not sever the link for the Australian Parliament to pass this law. What it does is for the Australian Parliament to make sure that whatever power the United Kingdom may still have, it cannot exercise it, not the question validly, towards Australia but it is a futile exercise of it because under our external affairs power we have excluded it. I am not going any further than to say that, theoretically - it is theoretical in the sense of, it is not an issue which can now arise but - - McHUGH J: But does that mean anything more than the judges of this country will give effect to the law of the Australian Parliament as opposed to the law of the United Kingdom. MR ELLICOTT: That is all it means, but it does not mean that the constitutional link, both historically and presently, is not there, because our sovereignty in the non-political sense depends, and this is where Justice Kirby says, "I do not understand why we ever had to do it", but our sovereignty, in a legal sense, depends on an Act of the United Kingdom Parliament. GLEESON CJ: Has anything happened in recent years to the sovereignty of the United Kingdom Parliament? MR ELLICOTT: I suspect that something has.
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McHUGH J: Well, a good deal has, I think, has it not? MR ELLICOTT: And by virtue of the European Union, there are significant changes occurring but that is another issue. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p149
McHUGH J: Plus devolution. MR ELLICOTT: And devolution. Now - - HAYNE J: Mr Ellicott, can I put to you the point that was put by Wade in his article on the basis of legal sovereignty which is 13 Cambridge Law Journal, a 1955 article. Wade says of the controversy, on the one hand, between Bryce, and on the other, Anson and Dicey, about what is meant by sovereignty: What neither side quite acknowledges is that the seat of sovereign power is not to be discovered by looking at Acts of any Parliament but by looking at the courts and discovering to whom they give their obedience. When we come to discuss sovereignty in the present context, is not the critical question, to which Parliaments would this Court, and the courts beneath it in the judicial system, look, in determining the laws that are to be applied in this country? MR ELLICOTT: They looked at the Constitution, from which they gather their authority, either under Chapter III or section 106, or maybe the Charter of Justice, but certainly they will look to those provisions and they will be reflected in Acts of the Parliament of the Commonwealth and the States. There can be no doubt about that. But it does not, with respect, determine the - because that could have been said as it was in 1955 when the link that I am addressing the Court about still clearly existed, the Statute of Westminster operated and it was part of our constitutional arrangements. The fact that it has now been repealed or amended in some way does not, we would submit, affect the situation, and that the only way in which the socalled ultimate sovereignty in a legal sense has come home to Australia is because of an Act of the Australian Parliament which it was enabled to pass, we would submit, under provisions of our Constitution and not otherwise, and which are found in the United Kingdom Act passed in 1900. Now, your Honours, that discussion does not arise if our submission is correct that in the beginning, that is, in 1900 the words "sovereign power" did not mean the United Kingdom, and in the Constitution - - McHUGH J: Did not mean or did not apply? You say did not mean?
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MR ELLICOTT: Did not mean; not just it did not apply to, but did not mean. It had a meaning which excluded the United Kingdom and that was because it was an Act itself. It was found in Act itself of that very Parliament. It just was not capable of having that meaning, and it was not an intention whether you say of the founding fathers or to be gathered from the Act, however you wish to put it, it was not an intention that it would cover the United Kingdom at any stage. Now, that must be so if one is to look at the Constitution itself, because the covering provisions themselves have the effect - - END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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MR ELLICOTT: It could be said that the interim has passed. Parliament might repeal the Commonwealth Electoral Act, theoretically but that again I would submit, does not affect the force of the argument that the Parliament could have waited beyond this point of time. HAYNE J: That is, consistently with the existence of sovereign independence, section 34 could have remained operative today. Is that the argument?
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MR ELLICOTT: The argument is that section 34 did not dictate to Parliament when it had to otherwise provide. HAYNE J: I understand that, but could 34 survive in that form and it still be open to conclude that Australia had become a sovereign and independent nation? MR ELLICOTT: Yes. All it had to do, as it did, was to pass an Act that every Australian citizen was a British subject. That is exactly what happened until 1981. That is part of the so-called injustice I referred to earlier, but I will not go back to that. GAUDRON J: There was a change at some point, that Australians were British subjects and then they - did it not come about that they shall have the status as British subjects, as if British subjects, or something like that? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p150
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MR ELLICOTT: In 1984 the Act was substantially changed and it came into effect on 1 May 1987 and that took out of the Act the provision that said "Australian citizens shall be deemed to be British subjects", but it still left the requirement that persons must be British subjects in order to be qualified for election to the Parliament until 1981; that is, not the Citizenship Act, but the Commonwealth Electoral Act.
McHUGH J: The great irony if your argument is wrong is that in Asia there would be many people, perhaps a vast majority, would think it odd to say that the United Kingdom was a foreign power so far as Australia was concerned. MR ELLICOTT: Yes. KIRBY J: Fortunately the decisions are made in this Court.
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CALLINAN J: Well, I do not accept that; I think Asian people are very sophisticated and perfectly capable of understanding the subtleties of the relationship. I know it is commonly said but I just do not accept it. It really does not give you - - MR ELLICOTT: Those who have had experience may not think that that is so but, nevertheless, it is a common view that is expressed within the bounds of our country. I mean, we have got an Australian citizen who is the Deputy Prime Minister of Cambodia, I think. That is a strange situation perhaps, but that can happen. The other aspect of the Constitution which is important is the phrase which actually is in section 34, "subject of the Queen". Now, much has been said about the Royal Style and Titles Act as if it indicated a step in this period of change. Now, if one looks at the Act, both in 1953 and 1973, it still retained within it a statement which included all the areas, all those parts of the world, over which the Queen had dominion: Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth Now, it is sometimes read as if it stopped as "Queen of Australia"; it does not do anything other than state the position in a way which is relevant, more relevant for people in Australia. In 1953, which your Honours will recall was the first year of a royal visit to Australia - - KIRBY J: No, that was 1954. MR ELLICOTT: , well, in 1953 the Royal Style and Titles Act is amended, and it is amended to bring Australia specifically into it and in so doing - I will just read it:
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of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. Now, that in itself made the Queen or the Crown more relevant to Australia, because Australia was noted. Then in 1973, on the eve of another visit by the Queen, in October 1973, I suspect, this Act is passed, and, with a new government and an intention to emphasise Australia again, it is: Australia and Her other Realms and Territories Queen, Head of the Commonwealth -
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Now, the importance of that is that, although one finds references to "Queen of Australia", the Act really operated in no way to make a constitutional change; it is still "the Queen". KIRBY J: Well, it could not; it is not a referendum-supported Act. MR ELLICOTT: It is not a referendum, so it is still "the Queen".
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END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE HAYNE J: Does it, therefore, mean that a person can be a member of the House or a senator who is bound by reasons of allegiance, obedience or adherence to another country, for example, to be engaged in military service for that country, in circumstances that are at the least antithetical to the interests of this country as decided in this country? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p151
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MR ELLICOTT: Parliament has passed a law which says that, in order to be a member of Parliament, you must be an Australian citizen. That only demonstrates that Parliament can confine the problem that your Honour seeks to raise by that question. Section 44 is a disqualifying provision and all it does is to exclude people from the capacity to be chosen or sit. If my argument means that Canadians will not be affected by section 44(i), then that is not a large matter because section 34 is always, in the capacity of our own Parliament, to alter. In other words, it is possible to put a problem based on my argument and based on a person being a British subject somewhere else but, nevertheless, if one is asking the question "What does subject of the Queen mean?", in our submission, it is not a question of one and indivisible. It is a question of whether or not it is a person as distinct from a legal concept that we are concerned about, and my submission is that it is a person and not a legal concept. GAUDRON J: But is not foreign power a legal concept? MR ELLICOTT: Foreign power is but, if you are the subject of the Queen and it is the same person who is the Queen, if you like, in right of Australia, it is the same Queen in right of the United Kingdom, then how can they be foreign to one another?
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GAUDRON J: Am I not correct in thinking that the notion of "British subject or subject of the Queen" is now changed to a "citizen of the United Kingdom"? END QUOTE
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Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE MR ELLICOTT: What we are wrestling with is a definition or a meaning of the Constitution and the words "subject of the Queen". HAYNE J: No, we are wrestling with "foreign power", are we not?
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MR ELLICOTT: Yes, but we are wrestling with it in terms of whether the words "subject of a foreign power" can include a subject, albeit called a British citizen, who is a subject of the Queen in right of the United Kingdom. HAYNE J: And is the purpose of the provision to be identified by Mr Barton's interjection in the convention debates where he said in connection with this: A man might have to go out of our Parliament to serve against us.
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Sir George Turner added to the interjection: He may be Minister of Defence. That is, is the purpose of section 44(i) a purpose that at least includes the avoidance of members being subjected to obligations of military service in operations that would be regarded as antithetical to the interests of this country.
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MR ELLICOTT: Your Honour, can I answer that by taking your Honours to Sykes v Cleary 176 CLR 77 and there is a passage at 106 and 107. In the Nottebohm Case, Liechtenstein sought to exercise its right of diplomatic protection in respect of acts of Guatemala.....The International Court of Justice pointed out that, where the question had arisen with regard to the exercise of diplomatic protection, international arbitrators had recognized the "real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved" as that which gave rise to a right to exercise diplomatic protection. Then they quote the court.
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"[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connexion of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than that with that of any other State. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p152
Going to the middle of the page, having pointed out that the critical words in 44 do not permit the Court to adopt the approach which has been taken by international law they go on to say: But, there is no reason by s 44(i) should be read as if it were intended to give unqualified effect to that rule of international law. To do so might well result in the disqualification of Australian citizens on whom there was imposed involuntarily by operation of foreign law a continuing foreign nationality, notwithstanding they had taken reasonable steps to renounce that foreign nationality. That is something that one of your Honours referred to earlier. It would be wrong to interpret the constitutional provision in such a way as to disbar an Australian citizen who had taken all reasonable steps to divest himself or herself of any conflicting allegiance. It has been said that the provision was designed to ensure: "the members of Parliament did not have a split allegiance and were not, as far as possible, subject to any improper influence from foreign governments." Now, just stopping there, I was advancing the argument in relation to subject of the Queen, to say that a British citizen or a British subject, who is also an Australian citizen, does not have a split allegiance, because the allegiance is to the one Crown, which is personified in the Queen and the word being "allegiance" that if, in both respects, the person, albeit that the Crown or the Queen is advised separately in relation to the matters of the two States, that if the person has allegiance to the same Crown, it cannot be allegiance or that person cannot be the subject of a foreign power, and that is how I put the argument. END QUOTE Hansard 27-1-1898 Constitution Convention Debates QUOTE Sir GEORGE TURNER.-Will you briefly restate the point? Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a position in which all the colonies have adopted a particular law, and it is necessary for the working of that law that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union, because every state has come under it. As I read clause 52, the Federal Parliament will have no power, until the law has thus become absolutely federal, to impose taxation to provide the necessary revenue for carrying out that law. Another difficulty of the sub-section is the question whether, even when a state has referred a matter to the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the question? I should be inclined to think it had no such power, but the question has been raised, and should be settled. I should say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not be possible for it afterwards to revoke its reference. It appears to me that this sub-section, which is certainly one of the very valuable sub-sections of this clause, affording, as it does, means by which the colonies may by common agreement bring about federal action, without amending the Constitution, needs to be rendered more explicit. One point more especially which needs to be rendered clear is whether, when we have this federal action, there shall not be a federal means of providing for the necessary revenue that may be required or for imposing the necessary charges under such legislation. Sir JOHN DOWNER.-Is that not implied?
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Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of this clause, as I have shown-originating as it does in a body with practically no financial power-casts a certain suspicion on that reading of it, although, of course, the provision when embodied in this Act would have a different effect. Still, why not make it clear whether we mean that, when the Federal Parliament has passed federal legislation for some of the colonies, we shall allow that same legislation to deal with any necessary raising of revenue from those colonies which may be required to give effect to the legislation? Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be obviated by some such provision as that which he suggested. But this matter has struck me also from another point of view, and it seems to me that the provision affords an easy method of amending the Federal Constitution, without referring such amendments to the people of the various states for their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal p153 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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Constitution without the consent of the people of the various states. On the other hand, if that be not so, and the states can, after making such reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution. Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.
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Hansard 17-4-1897 Constitution Convention Debates QUOTE Mr. SYMON: There can be no doubt as to the position taken up by Mr. Carruthers, and that many of the rules of the common law and rules of international comity in other countries cannot be justly applied here. END QUOTE Sue v Hill & Anor S179/1998 (13 May 1999) QUOTE
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HAYNE J: The principle underpinning it being that it is the combination of the separate valid expressions of valid preference that is what is described as the expression "of the will of the people". MR FINCH: Exactly, your Honour, we say - - HAYNE J: It is not a political question. It is a legal principle that is to be applied. END QUOTE
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If one was to accept the reasoning of the High Court of Australia then irrespective of the documented legal principles embedded in the constitution any constitution could somehow be altered by mere legislation in defiance of any referendum. In my view, the following applies:
Hansard 6-3-1891 Constitution Convention Debates QUOTE Mr. THYNNE: I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says: One of the characteristics of a federation is that the law of the constitution must be either legally immutable or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution. That opens up a matter of very large consideration for this Convention. In the first place, what is the authority above and beyond the legislatures which is to have the power of changing the law of the constitution, or of regulating it in any form? The answer, of course, is that it is the people of these colonies who are to be charged with that important function; and I would, therefore, point out-and I think several hon. members who have had considerable experience in leading what may be called democratic parties in these colonies have forgotten for a moment-what the democracy of Australia is to be. END QUOTE
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I was naturalised on 28 March 1994 and I view it was beyond anyone to interfere with my rights as a British subject as enshrined in the constitution. Not even s128 referendum could have interfered with this because the constitution itself is no more but the 9th part of the entire Commonwealth of Australia Constitution Act 1900 (UK) and s128 referendums only can be applied to the 128 sections and no more. And as long as there was no constitution amendment act passed by the British Parliament nothing can be changed to the first 8 parts of this constitution act. In my view only a VELVET REVOLUTION to abandon the British monarchy and establish some kind of Australian nation might achieve an independent nation but it couldnt be then be a POLITICAL UNION as now exists. If the Commonwealth of Australia were under whatever name become a sovereign country then the States cannot be held liable to how the States were
created within the Commonwealth of Australia Constitution Act 1900 (UK) but may opt for a different kind of arrangements. The danger is that if we were to go along with the Sue v Hill judgment then nothing stops it to be used time and time again to transform this into a dictatorship. As quoted above that the constitution didnt allow for it to be altered from being a POLITICAL UNION and this I view is an essential criterion to be considered. What indeed is the worth of the constitution if the true meaning and application can be altered not because the people themselves voted for this but because politicians and judges desire to do so?
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Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all. But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate such a thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year should be a citizen of the Federation. You are putting that power in the hands of Parliament. Mr. HIGGINS.-Why not?
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Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as aliens, and so on. END QUOTE http://www.geocities.com/englishreports/77ER377.html QUOTE 4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the antenati remain aliens as to the Crown of England, because they were born when there were several Kings of the several kingdoms, and the [7-Coke-27 b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several Kings ; yet it was resolved, that all those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto. END QUOTE http://www.geocities.com/englishreports/77ER377.html QUOTE
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3. Where the King hath several kingdoms by several titles and descents, there also are the ligeances several: but the King hath these two kingdoms by several titles and descents; therefore the ligeances are several. These three arguments are collected also from the words of the plea before remembered. 3. Leges. From the several and distinct laws of either kingdom, they did reason thus: 1. Every subject that is born out of the extent and reach of the laws of England, cannot by judgment of those laws be a natural subject to the King, in respect of his kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and reach of the laws of England; therefore the plaintiff by the judgment of the laws of England cannot be a natural subject to the' King, as of his kingdom of England . END QUOTE http://www.geocities.com/englishreports/77ER377.html QUOTE By all which it is manifest, that the protection and government of the King is general over all his dominions and kingdoms, as well in time of peace by justice, as in time of war by the sword, and that all be at his command, and under his obedience. END QUOTE http://www.geocities.com/englishreports/77ER377.html QUOTE 3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. For the first, it is termed actual obedience, because, though the King f' England hath absolute right to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are subjects to the King of England. 2. The place is observable, but so as many times ligeance or obedience without any place within the King's dominions may make a subject born, but any place within the King's dominions may make a subject born, but any place within the King's dominions without obedience can never produce a natural subject. And therefore if any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions. But if enemies should come into any of the King's dominions, and surprise any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King's ligeance or obedience. But the time of his (a) birth is of the essence of a subject born; for he cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King. And that is the reason that antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience, of another King) are aliens born, in respect of the time of their birth. END QUOTE Hansard 2-3-1898 Constitution Convention Debates QUOTE
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Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the provision which is now before us confer upon the Federal Parliament the power to take away a portion of this dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the Union. END QUOTE
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The States were as Colonies the dominions of the British Crown and retained this position. While the Framers of the Constitution provided for the Commonwealth of Australia for and on behalf of
the British Parliament to naturalise aliens, as was previously applicable for the colonies, nevertheless this restricts the Commonwealth of Australia to do so not in its own rights but on behalf of the States. I view the hidden agenda was with politicians and judges alike that any separation from the British monarchy would somehow increase their powers as politicians and/or judges.
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HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS: Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution. When once that Constitution is framed we cannot get behind it. END QUOTE
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Hansard 2-4-1891 Constitution Convention Debates QUOTE Mr. J. FORREST: We propose to form a commonwealth of Australia, and are we to prohibit people of our own race, born in other portions of the British dominions, from becoming senators until they have been resident in the commonwealth for a certain period? No such prohibition is placed upon Australians residing in the old country. Any Australian, resident in England, can at once, if the electors desire, become a member of the House of Commons, and I see no reason why a distinguished Englishman coming to these colonies should not at once be eligible for the position of senator if the legislature of one of the colonies desired his appointment. END QUOTE
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Hansard 1-4-1891 Constitution Convention Debates QUOTE Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that the only laws which can apply are laws for the peace, order, and good government of the commonwealth.
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END QUOTE HANSARD 26-3-1897 Constitution Convention Debates QUOTE Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that it is based on the people's will, and that in it every personal unit of the population shall be recognised and his individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall also have its individuality preserved and its independence assured. I do not think we can afford to dispense with either of these two things. We cannot afford to dispense with the guarantee of the personal individual rights of every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense with the individual or separate rights or interests of each of the separate States-if my hon. friend Mr. O'Connor prefers that term. We cannot neglect to provide for their due recognition. The next principle I shall lay down is this: That in dealing with this federal authority we should confer on it no powers which it cannot exercise more wisely and well and effectively than the States can exercise those powers. I would even go a step further, and lay down as the principle which should govern our conduct: To the States all that is local and relating to one State, to the Federal authority all that is national and inter-State. I wonder whether I can secure the absolute adherence, no matter where it may lead us, of a majority of this Convention to that principle: To the State everything that is local and relating to one State, to the Federal power everything that is national and of inter-State importance. I pass from these two general principles to a discussion of the only other preliminary I shall have to touch, and that is the question of the appointment of the representative of the British Crown in the person of the Governor-General. I do not take it that the words of the Enabling Act requiring us to frame a Constitution for a Federation "under the Crown" bind us in the matter of whether or not we shall elect our own Governor-General, because I take it that the legal bonds which bind us to the mother-country, to the great British Empire, are chiefly, first the right of veto which the Imperial authorities have over any Acts our local Legislature may pass, and which the Federal Legislature may pass, and next the right of the Imperial Legislature at any time to pass legislation which may affect us, or which may revoke any legislation affecting us. These are the great legal bonds which bind us to the British Empire. But above all this, the greater and wider, and, to my mind, much more important [start page 145] bonds than the legal bonds are those of kinship, of language, and of sympathy that must always bind us to the motherland. The mere appointment by the Crown of the Governor-General is not a real bond. That this is so is recognised to-day in that we have presiding, now and again, in the position of Acting-Governor of one or other of these colonies, gentlemen who so preside by virtue of their position upon the legal bench. In the 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p157
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appointment of the Governor we have only one link, and that link is again and again missing when gentlemen, owing to their legal position, temporarily occupy the office. Mr. SYMON: By vice-regal appointment.
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Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it is actually called into existence by the absence of the Governor; but we can at this moment, if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that would qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is clear that to that extent it lessens the argument that the main link that binds us to the mother-country is the appointment of the Governor, and shows that it is an argument which has not half so much weight as some of the speakers would have us believe. But I take a very strong position against the election of the Governor-General by the Federation, not because I believe it would mean losing a link which binds us to England, but that we should have a man of such power and authority, derived directly from the people, that he would certainly clash with the other powers and authorities we propose to set up under this Constitution. END QUOTE
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Hansard 3-3-1898 Constitution Convention Debates QUOTE Sir JOHN FORREST.-What is a citizen? A British subject? Mr. WISE.-I presume so. Sir JOHN FORREST.-They could not take away the rights of British subjects. Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with the view of inserting the words "the Commonwealth." I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a definition of citizenship every state will have inherent power to decide who is a citizen. That was the decision of the Privy Council in Ah Toy's case. Sir JOHN FORREST.-He was an alien. Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to determine who should have the rights of citizenship within its borders. Mr. KINGSTON.-That it had the right of keeping him out. END QUOTE
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HANSARD 2-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects of the British Crown. END QUOTE Hansard 12-3-1891 Constitution Convention Debates QUOTE. Mr. CUTHBERT:
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I am proud to say, as the result of a conference which took place in London, and to which we sent delegates, that for the first time, I think, in English history the colonies have entered into a partnership by which they are enabled to have the advantage of the support of what may be termed an Australian squadron. Under the British flag we may rest in security, leaving it to the squadron in this part of her Majesty's dominions to protect our commerce, and taking upon ourselves the duty of defending our shores.
END QUOTE Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: END QUOTE Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. DEAKIN: p158 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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In the first instance, the power of the Crown itself is nowhere defined, and cannot be defined under this constitution. END QUOTE
Hansard 6-4-1897 Constitution convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the powers exercised by ministers of the Crown in any other country. Dr. COCKBURN: They are much superior to the powers of ministers here! Sir SAMUEL GRIFFITH': Not in the east. Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!
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Clearly the Ministers of the Federal Parliament now may consider no longer bound by the constitution and this is very dangerous. The Courts cannot have it that they allow a manipulation of the constitution to suit parliamentarians and the government and then expect they will remain immune. For example the separation of powers between the legislators (Parliament) the executives (government) and the judiciary already is being undermined. While the Commonwealth of Australia has no constitutional powers to interfere with the High Court of Australia original jurisdiction, nevertheless with treaties now in place essentially foreign businesses can go to an international court to seek adjudication where the High Court of Australia defeated their claims. By this, on the one hand we so to say got rid of the Privy Council as to make the High Court of Australia the ultimate tribunal, and yet the Government of the Day can for political reasons engage in a treaty that undermines the courts original jurisdiction. Why indeed should the politicians respect the courts rights of independence when the courts do not give a darn about the true meaning and application of the constitution and so in effect itself gave the powers to the politicians to do as they like? If the Commonwealth of Australia Constitution Act 1900 (UK) is a constitution of a foreign power then why enforce it? Likewise, why then rely and enforce upon any legislation enacted by this foreign power such as the Royal Commission Act 1902?
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With Singapore there was a new constitution that was defined and related also to British law, etc. If therefore we were to so to say get rid of the British Crown then it is for the People and not for politicians and judges to determine what a new constitution may entail. Below I quote various parts of the constitution of the Republic of Singapore and view that albeit Australians may not desire to have the same inclusions of all quotations they may desire many of them. Therefore, if we abandon the British Crown then it must be a decision by the People and not politicians and judges going beyond their constitutional powers.
QUOTE
PART I PRELIMINARY
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Citation. 1. This Constitution may be cited as the Constitution of the Republic of Singapore.
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Amendment of Constitution. 5. (1) Subject to this Article and Article 8, the provisions of this Constitution may be amended by a law enacted by the Legislature. (2) A Bill seeking to amend any provision in this Constitution shall not be passed by Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of the elected Members of Parliament referred to in Article 39 (1) (a). 16/84. Act 17/94 wef 1.10.94 vide S 367/94
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PART III PROTECTION OF THE SOVEREIGNTY OF THE REPUBLIC OF SINGAPORE

No surrender of sovereignty by merger or in any other manner, nor relinquishment of control over the Police Force or the Armed Forces unless supported by not less than two-thirds of total votes cast by electors at a referendum.
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No amendment to this Part unless supported by not less than two-thirds of total votes cast by electors at a referendum. 8. --(1) A Bill for making an amendment to this Part shall not be passed by Parliament unless it has been supported, at a national referendum, by not less than two-thirds of the total number of votes cast by the electors registered under the Parliamentary Elections Act.
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END QUOTE QUOTE

Part VA;
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"existing law" means any law having effect as part of the law of Singapore immediately before the commencement of this Constitution;
END QUOTE QUOTE
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"law" includes written law and any legislation of the United Kingdom or other enactment or instrument whatsoever which is in operation in Singapore and the common law in so far as it is in operation in Singapore and any custom or usage having the force of law in Singapore;
END QUOTE
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Legislation therefore includes all laws inhered from the United Kingdom, including the Magna Carta, the Bill of Rights and other legislation. Moreover, it includes also that the legal provision that the British Parliament can always amend its own laws remains applicable. Therefore the United Kingdom by signing the European Union treaty and so its acceptance of its Constitution, in effect has ensured that the right of the British parliament to compliment the Constitution of Singapore was never extinguished. Again:
"law" includes written law and any legislation of the United Kingdom or other enactment or instrument whatsoever which is in operation in Singapore
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the right of any parliament to amend its own legislation, including a constitution can only be limited by the provisions of the Constitution, but the right to provide complimentary legislation, such as the The European Convention for the protection of Human Rights and Fundamental Freedoms (the ECHR) is clearly not avoided, as any legislation applicable to British law automatically applies to all British law, with the exception that constitutional law cannot be interfered with by implied amendments.
The purpose of the The European Convention for the protection of Human Rights and Fundamental Freedoms (the ECHR) is not to undermine the THE REPUBLIC AND THE CONSTITUTION but rather is complimentary to the provisions of the Constitution.
QUOTE (constitution of the Republic of Singapore)
PART II THE REPUBLIC AND THE CONSTITUTION

Republic of Singapore. 3. Singapore shall be a sovereign republic to be known as the Republic of Singapore. Supremacy of Constitution. 4. This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
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END QUOTE (constitution of the Republic of Singapore)
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Participation in co-operative international schemes which are beneficial to Singapore. 7. Without in any way derogating from the force and effect of Article 6, nothing in that Article shall be construed as precluding Singapore or any association, body or organisation therein from (a) participating or co-operating in, or contributing towards, any scheme, venture, project, enterprise or undertaking of whatsoever nature, in conjunction or in concert with any other sovereign state or with any Federation, Confederation, country or countries or any association, body or organisation therein, where such scheme, venture, project, enterprise or undertaking confers, has the effect of conferring or is intended to confer, on Singapore or any association, body or organisation therein, any economic, financial, industrial, social, cultural, educational or other benefit of any kind or is, or appears to be, advantageous in any way to Singapore or any association, body or organisation therein; or (b) entering into any treaty, agreement, contract, pact or other arrangement with any other sovereign state or with any Federation, Confederation, country or countries or any association, body or organisation therein, where such treaty, agreement, contract, pact or arrangement provides for mutual or collective security or any other object or purpose whatsoever which is, or appears to be, beneficial or advantageous to Singapore in any way.
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END QUOTE (constitution of the Republic of Singapore) QUOTE (constitution of the Republic of Singapore)
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Liberty of the person. 9. --(1) No person shall be deprived of his life or personal liberty save in accordance with law. (2) Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him. (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. (4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a magistrate and shall not be further detained in custody without the magistrates authority. 16/84. (5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker. [M5 28/86. (6) Nothing in this Article shall invalidate any law 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p161
(a) in force before 16th September 1963 which authorises the arrest and detention of any person in the interests of public safety, peace and good order; or (b) relating to the misuse of drugs or intoxicating substances which authorises the arrest and detention of any person for the purpose of treatment and rehabilitation, by reason of such law being inconsistent with clauses (3) and (4), and, in particular, nothing in this Article shall affect the validity or operation of any such law before 10th March 1978.
END QUOTE (constitution of the Republic of Singapore)
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This part does not refer to the imposition of a death penalty, but relates to arrest and detention, and as such must be deemed to be an implied prohibition to use a death penalty!
QUOTE (constitution of the Republic of Singapore) PART V THE GOVERNMENT
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CHAPTER 1 The President The President. 17. --(1) There shall be a President of Singapore who shall be the Head of State and shall exercise and perform such powers and functions as are conferred on the President by this Constitution and any other written law. END QUOTE (constitution of the Republic of Singapore) QUOTE (constitution of the Republic of Singapore) Discharge and performance of functions of President. 21. --(1) Except as provided by this Constitution, the President shall, in the exercise of his functions under this Constitution or any other written law, act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet. (2) The President may act in his discretion in the performance of the following functions: (a) the appointment of the Prime Minister in accordance with Article 25; (b) the withholding of consent to a request for a dissolution of Parliament; (c) the withholding of assent to any Bill under Article 22E, 22H, 144 (2) or 148A; (d) the withholding of concurrence under Article 144 to any guarantee or loan to be given or raised by the Government; (e) the withholding of concurrence and approval to the appointments and budgets of the statutory boards and Government companies to which Articles 22A and 22C, respectively, apply; (f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G; (g) the withholding of concurrence under Article 151 (4) in relation to the detention or further detention of any person under any law or ordinance made or promulgated in pursuance of Part XII; (h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony Act; and Cap. 167A. (i) any other function the performance of which the President is authorised by this Constitution to act in his discretion. (3) The President shall consult the Council of Presidential Advisors before performing any of his functions under Articles 22, 22A (1), 22B (2) and (7), 22C (1), 22D (2) and (6), 144, 148A, 148B and 148G. (4) Except as otherwise provided in clause (3), the President may, in his discretion, consult the Council of Presidential Advisors before performing any of his functions referred to in clause (2) (c) to (i). (5) The Legislature may be law make provision to require the President to act after consultation with, or on the recommendation of, any person or body of persons other than the Cabinet in the exercise of his functions other than (a) functions exercisable in his discretion; and 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p162
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(b) functions with respect to the exercise of which provision is made in any other provision of this Constitution. END QUOTE (constitution of the Republic of Singapore)
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THEREFORE, I VIEW THE PRESIDENT IS OBLIGATED TO ENSURE THAT THE CONSTITUTION IS APPROPRIATELY COMPLIED WITH AND SO ANY LAWS VALIDLY ENACTED WITHIN THIS CONSTITUTION. MEANING, THAT ANY LAWS PROVIDING FOR THE IMPOSITION OF THE DEATH PENALTY ARE ULTRA VIRES AND PROHIBITED FROM BEING ENFORCED.
CHAPTER 2 The Executive Executive authority of Singapore. 23. --(1) The executive authority of Singapore shall be vested in the President and exercisable subject to the provisions of this Constitution by him or by the Cabinet or any Minister authorised by the Cabinet. END QUOTE (constitution of the Republic of Singapore)
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The constitution using the wording by him or the Cabinet thereby allows the president to exercise Executive powers without the Cabinet, subject to the Constitution.
QUOTE (constitution of the Republic of Singapore) Cabinet. 24. --(1) There shall be in and for Singapore a Cabinet which shall consist of the Prime Minister and such other Ministers as may be appointed in accordance with Article 25. (2) Subject to the provisions of this Constitution, the Cabinet shall have the general direction and control of the Government and shall be collectively responsible to Parliament. END QUOTE (constitution of the Republic of Singapore)
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While this entitles the Cabinet to control the Government it does not rule out the President from exercising powers in regard of enforcement of law and/or treaties enacted subject to the Constitution, and as such to honour any treaty which Singapore made with the Commonwealth of Australia.
QUOTE Commonwealth citizenship. 139. --(1) In accordance with the position of Singapore within the Commonwealth, every person who is a citizen of Singapore enjoys by virtue of that citizenship the status of a Commonwealth citizen in common with the citizens of other Commonwealth countries. (2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation to a citizen of the Republic of Ireland who is not also a Commonwealth citizen as it applies in relation to a Commonwealth citizen. END QUOTE
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Considering s44 of the Commonwealth of Australia Constitution Act 1900 (UK) then this would immediately result that every Australian in the Commonwealth of Australia is unable to be and remain to be a Member of Parliament. 50
QUOTE
44 Disqualification 5
Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or (ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But subsection (iv) does not apply to the office of any of the Queens Ministers of State for the Commonwealth, or of any of the Queens Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queens navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
END QUOTE
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Therefore the Sue v Hill judgment technically bars any Australian to be a member of Parliament by this.
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QUOTE (constitution of the Republic of Singapore) Application of Third Schedule. 140. Until the Legislature otherwise provides by law, the supplementary provisions contained in the Third Schedule shall have effect for the purposes of this Part. END QUOTE (constitution of the Republic of Singapore)
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QUOTE (constitution of the Republic of Singapore) Restrictions on preventive detention. 151. --(1) Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention (a) the authority on whose order any person is detained under that law or ordinance shall as soon as may be, inform him of the grounds for his detention and, subject to clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be; and (b) no citizen of Singapore shall be detained under that law or ordinance for a period exceeding 3 months unless an advisory board constituted as mentioned in clause (2) has considered any representations made by him under paragraph (a) and made recommendations thereon to the President. (2) An advisory board constituted for the purposes of this Article shall consist of a chairman, who shall be appointed by the President and who shall be or have been, or be qualified to be, a Judge of the Supreme Court, and two other members, who shall be appointed by the President after consultation with the Chief Justice. (3) This Article does not require any authority to disclose facts the disclosure of which would, in its opinion, be against the national interest. [M 151 (4) Where an advisory board constituted for the purposes of this Article recommends the release of any person under any law or ordinance made or promulgated in pursuance of this Part, the person shall not be 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p164
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detained or further detained without the concurrence of the President if the recommendations of the advisory board are not accepted by the authority on whose advice or order the person is detained. END QUOTE (constitution of the Republic of Singapore) QUOTE (constitution of the Republic of Singapore) Date of coming into operation of Constitution. 156. Subject to the provisions of Part XIV, this Constitution shall come into operation immediately before 16th September 1963. END QUOTE (constitution of the Republic of Singapore)
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It ought to be understood that the Constitution of Singapore didnt interfere with s44 prior to the sue v Hill judgment of the High court of Australia while Australians were enjoying their ordinary status of being Subject of the British Crown. It appears to me that the judges in Sue v Hill simply ignored this and numerous other serious implications to the rights, duties and obligations of Australians.
QUOTE (constitution of the Republic of Singapore) Rights, liabilities and obligations. 161. --(1) All rights, liabilities and obligations of Her Majesty in respect of the Government shall on and after the commencement of this Constitution be rights, liabilities and obligations of the State of Singapore. (2) In this Article, rights, liabilities and obligations include rights, liabilities and obligations arising from contract or otherwise, other than rights to which Article 160 applies. [104 Existing laws. 162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution. END QUOTE (constitution of the Republic of Singapore)
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QUOTE (constitution of the Republic of Singapore) Existing laws. 162. Subject to this Article, all existing laws shall continue in force on and after the commencement of this Constitution and all laws which have not been brought into force by the date of the commencement of this Constitution may, subject as aforesaid, be brought into force on or after its commencement, but all such laws shall, subject to this Article, be construed as from the commencement of this Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution. END QUOTE (constitution of the Republic of Singapore)
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At least Singaporeans will know the position of laws, whereas with Australians the validity of legislation is not so clear at all. We may have the High Court of Australia making decisions in time to come nullifying current existing legislation because they were under Royal Assent of the British Crown and not from the purported Queen of Australia. This cannot be permitted to continue and I view the Privy Council ought to determine the true meaning and application of the constitution (Commonwealth of Australia Constitution Act 1900 (UK)) to clarify this uncertainty.
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The above quotation also very clearly does provide for the application of the The European Convention for the protection of Human Rights and Fundamental Freedoms (the ECHR)! Australians do not want a constitution perverted by politicians and judiciary but one that if it is going to be a different kind of constitution then it must be the Peoples will political and civil rights (and include specific provisions for human rights), etc One has to compare the legal principles embedded in the Commonwealth of Australia Constitution Act 1900 (UK) versus what is now fabricated how this constitution applies, and it will be obvious that it has resulted to a perversion of the rights of the people having minimised their rights considerably while so to say expanding the rights of politicians and judges. To me, this cannot be accepted by the People. The constitution must always be held to be that expresses the will of the people and not some concocted version of the constitution that judges in their contemporary views may wish to inflict upon the general community and those living afterwards, that has absolutely nothing to do with the true meaning and application of the constitution.
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The judiciary, and so the judges involved, in my view didnt just let down the People but I view betrayed their rights and liberties. In my view none of the judges involved could ever be trusted. This as they should have known that it was beyond their powers to alter the true meaning and application of the constitution. As a matter of fact Sykes v Cleary also I view was wrongly decided in that s44 specifically was restricted to a person who at the time of taking up the seat (and not when the election was held) was in a position of contract with the Commonwealth and not with a State. This too I have set out considerably in my published books in the INSPECTOR-RIKATI series on certain constitutional and other legal issues. To have political opponents and/or former political opponents forced to appear before a Royal Commission (into trade union governance and corruption) as to perhaps gain political millage from such expensive Royal Commission is not and never should be a purpose to establish a Royal Commission. To investigate local State internal matters within the building industry in my view neither can justify a Federal Government establishing a Royal Commission. As such I object to the Royal Commission (into trade union governance and corruption) to investigate matters which are within State jurisdiction. Taxpayers should not have to feed an expensive Royal Commission merely so to say for the mates of a political party in power to have some so to say quick get rich scheme. The issue of jurisdiction or the lack thereof as much applies to a Royal Commission as it does to the judiciary.
QUOTE JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power may be established and described with reference to particular subjects or to parties who fall into a particular category. In addition to the power to adjudicate, a valid exercise of jurisdiction requires fair notice and an opportunity for the affected parties to be heard. Without jurisdiction, a court's judgment is void. A court must have both SUBJECT MATTER JURISDICTION and PERSONAL JURISDICTION (see below). See also territorial jurisdiction; title jurisdiction." END QUOTE
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QUOTE SUBJECT MATTER JURISDICTION refers to the competency of the court to hear and determine a particular category of cases. Federal district courts have "limited" jurisdiction in that they have only such jurisdiction as is explicitly conferred by federal statutes. 28 U.S.C. 1330 [EDITOR'S NOTE: see also 40 U.S.C.S. 255] et seq. See LIMITED [SPECIAL] JURISDICTION. Many state trial courts have "general" jurisdiction to hear almost all matters. The parties to a lawsuit may not waive a requirement of subject matter jurisdiction. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p166
END QUOTE (USA) 13 Supreme Court Law Case Reports: QUOTE 12. If any Tribunal (court) finds absence of proof of jurisdiction over a person and subject matter, the case must be dismissed. Louisville v. Motley 2111 US 149, 29S. CT 42. The Accuser Bears the Burden of Proof Beyond a Reasonable Doubt. 13. Lack of Federal Jurisdiction can not be waived or overcome by agreement of parties. Griffin v. Matthews, 310 F supra 341, 342 (1969): and Want of Jurisdictionmay not be cured by consent of parties. Industrial Addition Association v. C.I.R., 323 US 310, 313. END QUOTE
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The following applies as much to Federal laws of the Commonwealth of Australia as it does to federal laws in the USA; http://familyguardian.taxtactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm QUOTE 37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys the validity of everything into which it enters, and that it vitiates the most solemn contracts, documents, and even judgments." END QUOTE
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QUOTE The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. . . A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it. END QUOTE Sixteenth American Jurisprudence Second Edition, 1998 version, Section 203 (formerly Section 256)
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Sixteenth American Jurisprudence 2d; SS: 256 & 257: 45

"The general rule is that an unconstitutional statute is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. 'Such an unconstitutional law is void', the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority to anyone, affords no protection, and justifies no acts preformed under it . . . 'A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. 'No one is bound to obey an unconstitutional law and no courts are bound to enforce it." . . . The fact that one acts in reliance on a statute which has theretofore been adjudged unconstitutional does not protect him from civil or criminal responsibility .... QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980). The law provides that once State and Federal jurisdiction has been challenged, it must be proven. END QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p167
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QUOTE Hagens v. Lavine, 415 U.S. 533, Once jurisdiction is challenged, it must be proven END QUOTE
QUOTE Standard v. Olsen, 74 S. Ct. 768, No sanctions can be imposed absent proof of jurisdiction. END QUOTE QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
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Jurisdiction can be challenged at any time, even on final determination. END QUOTE
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QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471. Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack. END QUOTE
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QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64
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(2) The Court always has jurisdiction to entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceedings. (3) In carrying out that limited exercise of jurisdiction, the Court is required to determine any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (the jurisdictional facts). That determination is a function which is incidental to the exercise of the jurisdiction referred to in (2) above. END QUOTE
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QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64 (6) Once a respondent challenges the Courts jurisdiction to make the orders sought, the Court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities. END QUOTE QUOTE. FAMILY LAW RULES 20042003 No. 375 - RULE 3.05 Objection to jurisdiction (1) If, in a Form 3A, a respondent objects to the jurisdiction of the court, the respondent will not be taken to have submitted to the jurisdiction of the court by also seeking an order that the application be dismissed on another ground. (2) The objection to the jurisdiction must be determined before any other orders sought in the Form 3A. END QUOTE
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Director General, Department of Commerce v Cianfrano and Anor [2008] NSWADTAP 56 (24 July 2008) NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL QUOTE 3 The Tribunal decided, contrary to the Departments submission, that it did have jurisdiction to determine the adequacy of search question: Director-General, Department of Commerce and anor (No 2) [2006] NSW ADT 195. The matter was listed for further directions. The Tribunals orders were as follows: 1. First Respondents objection to jurisdiction dismissed. 2. Tribunal to reconvene to make further directions as appropriate.
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Trapman v Sydney Water Corporation & Ors [2009] FMCA 942 (16 September 2009) QUOTE 1. Accordingly, I find that the Court has jurisdiction to deal with the matters contained in Particulars (a)(ii), (v), (vii), (viii), (ix), (x), (xi) and (xii) of Exhibit 1. 1. It follows that I find that the Court does not have jurisdiction to deal with the matters contained in Particulars (a) (i),(iii), (iv) and (vi) of Exhibit 1. 1. I make orders accordingly. END QUOTE
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Watson v Director-General, Department of Services, Technology and Administration [2010] NSWADT 44 (12 February 2010) QUOTE He also stated that, if the Tribunal agreed this view, he would seek an order that the Respondent pay the Applicants costs occasioned by the objection to jurisdiction on an indemnity basis. END QUOTE
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QUOTE The orders to be made
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64 For the foregoing reasons, each of the applications constituting these proceedings is dismissed for want of jurisdiction. 65 In consequence, the Tribunals orders made on 6 January 2010 are discharged.
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66 In addition, the directions hearing set down for 15 February 2010 is vacated. END QUOTE Act Interpretation Act 1901; (Cth) 15A Construction of Acts to be subject to Constitution QUOTE Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. END QUOTE Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991) QUOTE CCH 92-217 page 78485 (1991) The Court could not make an order which otherwise fell outside its jurisdiction merely because the parties consent to it.. END QUOTE
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Law Encyclopedia: Coram [Latin, Before; in the presence of.]
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The term coram is used in phrases that refer to the appearance of a person before another individual or a group. Coram non judice, "in the presence of a person not a judge," is a phrase that describes a proceeding brought before a court that lacks the jurisdiction to hear such a matter. Any judgment rendered by the court in such a case is void. Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed, P3) QUOTE "... the first business of the court is to try to issue whether or not the case is bought within the terms of the statute, and only if this be proven by proper evidence can the court proceed to decide upon treatment" END QUOTE Aggregate Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p169
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APPEAL for judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168 QUOTE 1.
As it happens and as it seems to me, much of what was submitted by Mr Howell and Mr Sales with regard to this aspect of the first ground of challenge in the present case echoed what Laws LJ had to say in his judgment in Tower Hamlets from paragraph 31 onwards and, for that reason and because Laws LJs judgment is clearly very much in point, it is both appropriate and helpful to quote extensively from it, as follows: 31. The approach in Strasbourg to cases where a first instance decision -maker does not of itself satisfy Article 6(1), but it is claimed that the defect is as it were cured by a right of appeal to or review by an independent court, is to ascertain whether in the circumstances the court possesses what has been called full jurisdiction. The genesis of this expression is I think to be found in Albert and Le Compte v. Belgium (1983) 5 EHRR 533. That was a case in which doctors suspended from practice by a disciplinary tribunal complained of violations of Article 6(1). It is convenient to refer to the relevant passage as it is quoted by Lord Hoffman in Alconbury, where it is followed by reasoning to which with respect I would attach considerable importance in the context of the present case: 86. In Albert and Le Compte v Belgium (1983) 5 EHRR 533 the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of Article 6(1) (e.g. because they were not established by law or did not sit in public): None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1). 87. The reference to full jurisdiction has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with Article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that full jurisdiction does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires. 88. This emerges most clearly from the decisions on the English planning cases But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v. Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Voralberg. The appropriate government committee heard their objections but confirmed the order. They appealed to the administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not independently assess the merits and the facts of the case, it did not have full jurisdiction within the meaning of the Albert and Le Compte formula. The European court said, at paragraph 32, that its jurisdiction was sufficient in the circumstances of the case, Regard being had to the respect which must be accorded to decisions taken by the administrative
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authorities on the grounds of expediency and to the nature of the complaints made by the Zumtobel partnership. 32. Later in his speech in Alconbury Lord Hoffman referred to the case of Bryan v UK (1995) 21 EHRR 342, and in particular to the opinion of Mr Nicholas Bratza (as he then was) in the Commission: Lord Hoffman proceeded to point out that Mr Bratzas opinion had influenced the decision of the Court in Bryan, which said in paragraph 45 of the judgment:
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in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal. 37. These decisions seem to me to reflect an important truth about the relationship between the first instance decision and the decision of the court on appeal or review, in this class of case where it is said that the later court process guarantees Article 6 compliance where that is not satisfied by the earlier determination. We have seen that in such cases the later court must possess full jurisdiction ( Albert and Le Compte), and that this means full jurisdiction to deal with the case as the nature of the decision requires (Alconbury paragraph 87). But what the nature of the decision requires is by no means limited to a consideration of the question whether, in light of the subject-matter of the case, a court compliant with Article 6 standards must possess the power to investigate and decide the facts for itself. Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the first instance decision-maker internal review, Review Board, whatever it may be is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decisionmaker does not satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes for the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court.
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39. Now I may gather the threads together. We are dealing with a state of affairs in which a first instance decision-maker, whose determination touches the citizens civil rights, does not meet the standards imposed by ECHR Article 6(1). Such a state of affairs arises within a setting or regime created by Act of Parliament. There will generally be access to a court by way of review or appeal against the first decision. It may be provided by the Act itself. If the Act is silent, then at common law recourse may be had to the judicial review court. If the Act gives a right of appeal to a court on the merits, factual as well as legal, Article 6 is plainly complied with: such a court on any view possesses full jurisdiction. But the commoner situation is where the right of appeal is on law only. Subject to the remedies provided for (and to any points of procedure), that will be equivalent to judicial review. The critical question, then, is this: in these two-tier cases, what are the conditions which determine whether the court process at the second tier, taken with the first instance process, guarantees compliance with Article 6(1)? 40. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the schemes subject matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p171
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given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the schemes author. 41. I intend the whole of this approach to be consonant with Lord Hoffmans reasoning in Alconbury and I believe it to be so. And what was said by Lord Hoffman in Alconbury at paragraph 79 is, I think, reflected by the circumstance that civil rights are more likely to be directly engaged in a scheme where the finding of fact is a general or systematic feature; but where judgment, discretion, and issues of policy predominate, the scheme is more likely to be one in which decisions made under it determine or affect civil rights. 43. I should indicate moreover that, although there were sharp issues of primary fact falling for determination in the present case, that is not a necessary feature in a s.202 review, and certainly not a systematic one. As often as not there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background: Now clearly the statutory scheme is either compliant with Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to the degree of factual dispute arising. That would involve a wholly unsustainable departure from the principle of legal certainty. In my opinion, judged as a whole, this statutory scheme lies towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part. 44. I think it important also to recognise the potential scope of the judicial review jurisdiction, replicated in this scheme in HA s.204. The judge has ample power to decide whether the review officers decision was one which was properly available to her on the evidence which she had. Given that (as I would find) the s.202 process does not of itself fulfil Article 6, the judge is perfectly entitled, within the jurisdiction given him by s.204, to subject the earlier decision to a close and rigorous analysis. 1. In contrast to Tower Hamlets, the 1981 Act does not provide for any form of statutory appeal or review against a decision by English Nature to confirm an SSSI pursuant to section 28(5). Accordingly, any review of such a decision must be by common law recourse to the High Courts powers of judicial review. In the present case, therefore, it seems to me that the central question which arises under this sub-issue is whether the High Court, when exercising its powers of judicial review, possesses full jurisdiction to deal with the case as the nature of the decision requires: see Albert and Le Compte at paragraph 29, Alconbury at paragraph 87 and Tower Hamlets at paragraph 37. If the answer to that question is that the High Court does possess such full jurisdiction, then the composite process comprising English Natures procedures and the High Courts powers of judicial review will comply with the requirements of Article 6(1).
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END QUOTE
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As shown below we are to have liberties just that I view the judges of the High Court of Australia would trample upon those embedded legal principles of the constitution.
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p172
liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitutionthe Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. END QUOTE
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And also consider:

HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten , END QUOTE
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Hence, as a CONSTITUTIONALIST I pursue the true meaning and application of the constitution, including the embedded legal principles. 40
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. END QUOTE
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And
HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. END QUOTE
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The Fair work act 2009 in my view is clearly to expand Commonwealth powers in violation of the legal principles embedded in the constitution.
HANSARD 17-4-1897 Constitution Convention QUOTE Mr. DEAKIN: They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p173
END QUOTE
.
HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS: Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution. When once that Constitution is framed we cannot get behind it. END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.The relations between the parties are determined by the contract in the place where it occurs. END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates QUOTE Sir EDWARD BRADDON (Tasmania).We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states. END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made. END QUOTE
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And
HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. END QUOTE
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We therefore have that bit by bit judges have eroded the true meaning and application of the constitution and I view the commissioner in this Royal Commission (into trade union governance and corruption) has been participating in this and hence for this also I view not a fit and proper person to conduct the Royal Commission. Much may be tried to be made out from any reference of powers but again no Parliament can do so without the consent of the electors of the State. After all, it is not just transferring legislative powers but by it also interfering with the State Supreme Court judicial powers as to minimise this in regard State parliament has such constitutional powers to refer legislative powers as such. As I understand it there was a Builders Labourers Federation Royal Commission in 1981. There was a 1992 N.S.W. Royal Commission into the Building Industry. There was this 2001 Cole Royal Commission and one has to ask which one, if any including the current Royal Commission into the Building Industry has a valid constitutional basis? The fact that previous Royal Commissions were held doesnt mean it all was constitutionally valid! If a Royal Commission was held outside constitutional powers then one cannot rely upon it that somehow it is an authority to rely upon to somehow give legal justification to the current Royal Commission.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p174
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amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. END QUOTE INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-112006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour) QUOTE Chapter 007A The Great Deception
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Chapter 007A The Great Deception * Gary, The Great Deception by whom? 15 **#** INSPECTOR-RIKATI, just read the Chapter 034T of the book (published on 17-32007); INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS For the quest of JUSTICE, in different ways. Book on CD. ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3 QUOTE Chapter 034T Gary, The Great Deception? 25 INSPECTOR-RIKATI, this document also sets out how the judges of the High Court of Australia are deceiving us as to the application of the Constitution! It is to be read in conjunction with other documents such as Is our Constitution safe, The Constitution is a PERPETUAL LEASE, etc. Anyhow, I quote below the document The Great Deception; The Great Deception QUOTE I cannot find any excuse whatsoever that judges of the High Court of Australia would divert totally from the legal principles that are embedded in the Constitution. END QUOTE In my 2-8-2003 correspondence, published previously in my book (30 September 2003); 40 INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed. ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X I included the following, in regard of the issue of the detention of David Hicks; 45
QUOTE http://store.yahoo.com/4crests/magnacarta.html When representatives of the young republic of the United States gathered to draft a constitution, they turned to the legal system they knew and admired--English common law as evolved from Magna Carta. The conceptual debt to the great charter is particularly obvious: the American Constitution is "the Supreme Law of the Land," just as the rights granted by Magna Carta were not to be arbitrarily canceled by subsequent English laws. This heritage is most clearly apparent in our Bill of Rights. The fifth amendment guarantees
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No person shall . . . be deprived of life, liberty, or property, without due process of law and the sixth states . . . the accused shall enjoy the right to a speedy and public trial, by an impartial jury. Written 575 years earlier, Magna Carta declares
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No freeman shall be taken, imprisoned, . . . or in any other way destroyed . . . except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice. In 1957 the American Bar Association acknowledged the debt American law and constitutionalism had to Magna Carta and English common law by erecting a monument at Runnymede. Yet, as close as Magna Carta and American concepts of liberty are, they remain distinct. Magna Carta is a charter of ancient liberties guaranteed by a king to his subjects; the Constitution of the United States is the establishment of a government by and for "We the People." Magna Carta (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. (40) To no one will we sell, to no one deny or delay right or justice.
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(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. (49) We will at once return all hostages and charters delivered up to us by Englishmen as security for peace or for loyal service. (51) As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it , to its harm, with horses and arms.
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(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:
It is clear that the above stated applies forever. 35

END QUOTE
Since then the US Supreme Court handed down its decision that the Magna Charta does apply to the US Constitution. 40 Lets now consider what the High Court of Australia stated in;
Transcript of High Court Appeal Essenberg v The Queen B55/1999 (22 June 2000) IN THE HIGH COURT OF AUSTRALIA
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Essenberg v The Queen B55/1999 (22 June 2000) McHUGH J: But is not the problem you face that the Magna Carta and the Bill of Rights of 1688 are not documents binding on Australian legislatures in the way the Constitution is binding on those legislatures? Any legislature acting within the powers allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta which, I suppose, is really the heart of your argument, it is really more a statement of political ideals. They are not constitutional documents in the sense that the Australian Constitution and the United States Constitution are.
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Well, the US Supreme Court has (since the publication of my book on 30-9-2003) clearly ruled that the Magna Charta is applicable to the US constitution.
Now, lets see what the Framers of the Constitution stated during the Constitution Convention Debates; 5
HANSARD 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. OCONNOR.-The amendment will insure proper administration of the laws, and afford their protection to every citizen. Mr. SYMON.-That is insured already. Mr. OCONNOR.-In what way?
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Mr. SYMON.-Under the various state Constitutions. Mr. OCONNOR.-Yes. We are now dealing with the prohibition against the alteration of these Constitutions. We are dealing with a provision which will prevent the alteration of these Constitutions in the direction of depriving any citizen of his life, liberty, or property without due process of law. Because if this provision in the Constitution is carried it will not be in the power of any state to pass a law to amend its Constitution to do that. It is a declaration of liberty and freedom in our dealing with citizens of the Commonwealth. Not only can there be no harm in placing it in the Constitution, but it is also necessary for the protection of the liberty of everybody who lives within the limits of any State. Mr. SYMON.-Have we not that under-Magna Charta.
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Mr. OCONNOR.-There is nothing that would prevent a repeal of Magna Charta by any state if it chose to do so. Let us suppose that there were any particular class of offences, or particular class of persons who, at any time, happened to be the subjects of some wild impulse on the part of a majority of the community, and unjust laws were passedMr. SYMON.-Has anything ever happened that would Justify such a proposition? Mr. OCONNOR.-Yes, they are matters of history in these colonies which it is not necessary to refer to.
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Mr. SYMON.-Would it not require an amendment of the Constitution to repeal Magna Charta? Mr. OCONNOR.-What Constitution? Mr. SYMON.-This Constitution. Do you think Magna Charta would be repealed by an Act of the Federal Parliament?
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Mr. OCONNOR.-I do not think so, and I did not say so. But I say that, under the Constitution of the states, as we are dealing with the Constitution, a State might enact any laws which it thought fit, and even if those laws amounted to a repeal of Magna Charta they could be carried. I admit we are only dealing with a possibility, but at the same time it is a possibility which if it eventuated, as it might, would be very disastrous, and there is no reason why we should not prevent it. [start page 684]
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Mr. FRASER.-We might provide a safe-guard, at any rate. HANSARD 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a right of action for tort in certain cases, but I do not think that this extended right of action has ever been given in any of the colonies. Conditions justifying actions for damages against the Crown, however, are almost as frequent as actions for breach of contract. In Canada a man sued the Crown for damages received in connexion with a railway accident, but he was debarred of remedy there, although he suffered serious injury, because of some defect in the railway laws not conceding this right. The position has been laid down in regard to the Queen in the case I have already mentioned, thatWhere the land, or goods, or money, of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be obtained, compensation in 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p177
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money; or when a claim arises out of a contract, as for goods supplied to the Crown or to the public servicethe Crown is bound to refer a petition of right to the courts for decision, because it is provided by Magna Charta that justice cannot be denied, sold, or delayed. By this action, similar rights of action are given to the subject against the Crown in cases in which the subject can maintain a claim against another subject. HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
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And
Mr. DEAKIN.. In this Constitution, although much is written much remains unwritten, Mr. DEAKIN.-
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What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. Again;
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the Crown is bound to refer a petition of right to the courts for decision, because it is provided by Magna Charta that justice cannot be denied, sold, or delayed.
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Therefore it must be clear that the Framers of the Constitution held that the Magna Charta applied to the Constitution and it is not for the judges to then seek to amend the Constitution by their own judgment to deny this to be applicable. As much as the Magna Charta is applicable likewise so the Bill of Rights. There is however another disturbing element to what the judges stated;
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Essenberg v The Queen B55/1999 (22 June 2000) IN THE HIGH COURT OF AUSTRALIA GUMMOW J: Now these words, "for peace, order and good government" are words of expansion, not contraction, you see - they are not words of limitation.
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McHUGH J: They do not limit the powers. In fact they arguably have no legal effect whatever, and that is the doctrine of this Court. We do not make a decision as to whether the law is for the peace, for the order, for the good government. It is assumed that if Parliament makes it, it is, and the real question is, is it a law with the same respect to trade and commerce in other countries or whatever the relevant law of Parliament relies on, but this Court has never attempted to say that a law, on the subject of trade and commerce, for example, is not "for peace, order and good government ". It is, in effect, a parliamentary expression rather than a legal expression. It does not limit Parliament's power; it is said to expand them. MR ESSENBERG: I am not really sure I understand that.
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Now lets see what the Framers of the Constitution stated, as set out more extensive in the document for the peace order and good government-1-Hansard.doc in Chapter 034O
HANSARD 1-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p178
Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page 559] They are taken from the Federal Council Act of Australasia, and were inserted by the imperial authorities after consideration and in substitution for more limited words that were proposed by the Convention that met here in 1883. Finding those words there, and considering that the powers of the federal parliament are only to make laws for the peace, order, and good government of the commonwealth, it was thought perfectly safe to adopt them. Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for a British port, say London, having a British register, until she actually arrives in Great Britain, the laws of the commonwealth are binding upon her, and not the laws of Great Britain?
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Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for the peace, order, and good government of the commonwealth, will apply to her on her voyage. For instance, if it was necessary to send a prisoner to England, only such provisions as are essential for the laws of the commonwealth outside the 3-mile limit could possibly apply. And Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that the only laws which can apply are laws for the peace, order, and good government of the commonwealth. HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. BARTON: That was the Convention which had, I think, to be called in consequence of the New Guinea affair. Sir Samuel went on: Finding those words there, and considering that the powers of the Federal Parliament are only to make laws for the peace, order, and good government of the Commonwealth, it was thought perfectly safe to adopt them. Sir Samuel Griffith's reply to that interjection was; No; but laws of the Commonwealth, limited to laws for the peace, order, and good government of the Commonwealth, will apply to her on her voyage. For instance, if it was necessary to send a prisoner to England, only such provisions as are essential for the laws of the Commonwealth outside the three-mile limit could possibly apply. That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly affect any law of the Imperial Parliament with which they may be in conflict, but so far as they are not in conflict they will be applicable to a ship on her voyage for the preservation of those laws of the Commonwealth which it is necessary to have enforced.
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HANSARD 22-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Amendment suggested by the House of Assembly of Tasmania: Omit the words "for the peace, order, and good government of the commonwealth, lines 3, 4, and 5."
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The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was made in the legislature of Tasmania at the instance of the Hon. A.I. Clark. That gentleman has furnished these reasons for the amendment, and, perhaps, in justice to him, I ought to read them: These words are copied from the several acts of the Imperial Parliament providing for the establishment of legislatures in the various Australian colonies, and are perfectly appropriate when used in reference to the establishment of the legislature which is to possess plenary legislative powers, and have unlimited jurisdiction on all questions relating to the protection of life and property, and the enforcement of contractual rights of every kind; but it is very doubtful if they ought to find a place in connection with the definition and delegation of limited legislative powers which do not include matters relating to the daily protection of life and property, or to enforcement of private rights and obligations in general. It is true that they find a place in the 91st section of the British North America Act, which establishes a federal convention for Canada; but the primary object of that act is to limit the powers and jurisdiction of the provincial legislatures, and to vest the residuum of legislative authority in the Dominion of Canada in the federal parliament. The words in question may, therefore, fitly find a place in that act, and they were relied upon in the case of "The Attorney-General of Canada versus the Attorney-General of Ontario, which was decided by the Privy Council last p179 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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year[L.R.A.C. 1896] to uphold the act of the Dominion Parliament, which had been challenged on the ground that it had encroached upon the domain of the provincial legislatures. That decision, in its effect, appears to me to be, an argument against the insertion of the words in question in connection with the definition and delegation of the legislative powers of the parliament of the commonwealth, because they might, in some unforeseen and unexpected controversy, afford ground for an argument in favour of the jurisdiction of the parliament of the commonwealth in matters which the several states might claim to be wholly within their own legislative powers. It cannot be contended that they are required for the purpose of giving the parliament of the commonwealth full power to legislate with regard to all the subjects mentioned in the sub-sections of section 52; and, if they are not required for that purpose, they must inevitably encourage the contention that they are inserted [start page 1037] for some additional purpose. But, if their insertion in not intended to add in any way to the powers of parliament, in relation to the matters mentioned in the sub-sections of section 52, then they violate the canon of drafting, which requires that no unnecessary words should be used in giving expression to the intention of the legislature. They are very properly inserted in section 53, because that section confers upon the parliament of the commonwealth plenary and exclusive powers in regard to the several matters mentioned in the sub-section of that section. But their presence in section 52 tends to create a resemblance in the scope of the powers conferred by the two sections, whereas it would be much more desirable to make the difference in the purport of each section as apparent and emphatic as possible. I have read these reasons through very carefully, and I have been unable to discover that any of the evils which my hon. and learned friend, Mr. Clark, fears may be expected from leaving these words as they are. The powers are powers of legislation for the peace, order, and good government of the commonwealth in respect of the matters specified. No construction in the world could confer any powers beyond the ambit of those specified. The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration of the leader of the Convention the question whether the words which the legislature of Tasmania have proposed to omit might not raise the question whether legislation of the federal parliament was in every instance for the peace, order, and good government of the commonwealth. Take, for instance, navigation laws. Might it not be contended that certain navigation laws were not for the peace, order, and good government of the commonwealth, and might there not be litigation upon the point? We are giving very full powers to the parliament of the commonwealth, and might we not very well leave it to them to decide whether their legislation was for the peace, order, and good government of the commonwealth? Surely that is sufficient, without our saying definitely that their legislation should be for the peace, order, and good government of the commonwealth. I hope the leader of the Convention will give the matter full consideration with a view to seeing whether these words are not surplusage, and whether, therefore, they had better not be left out of the bill altogether. The Hon. E. BARTON: The suggestion of the hon. member will be considered by the Drafting Committee. Amendment negatived. Again;
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Surely that is sufficient, without our saying definitely that their legislation should be for the peace, order, and good government HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make laws for the peace, order, and good government of the Commonwealth with respect to a large number of matters that are set out. This is a power that is without limitation.
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It should be understood that while it was stated 50

This is a power that is without limitation.
It is within the limits of being for for the peace, order, and good government! As such as long as it is within the scope of for the peace, order, and good government the legislative powers is unlimited. 55
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) Mr. DEAKIN.p180 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
. In this Constitution, although much is written much remains unwritten , And Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.
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In my view judges such as Gummow J and McHugh J ought to have a retraining as to what is constitutionally appropriate as I do not believe they have a clue what is applicable. Again, the document for the peace order and good government-1-Hansard.doc has extensively set out how it was being used, including some opposition and a submission from Tasmania to have it taken out as there should be an unlimited power, but it was made clear, that unlimited power would exist within the confines of laws being for the order, peace and good government and in the end this was retained in the Constitution! I for one wonder how on earth judges of the High Court of Australia do not comprehend this! I cannot find any excuse whatsoever that judges of the High Court of Australia would divert totally from the legal principles that are embedded in the Constitution. END QUOTE Chapter * Do you view that it is , so to say, no longer the GUARDIAN OF THE CONSTITUTION? **#** In my view it has lost the plot. We are in a really bad situation, as while Section 64 of the Constitution permits the Governor-General to appoint anyone (even not a Member of Parliament, for up to three months) to be a Minister of State the Framers of the Constitution intended that only Members of the House of Representatives would be permanent Ministers of State. There is a clear conflict of interest when a Senator representing State interest instead represents the Government of the Day. And we saw this with what I consider the infamous phone call by Senator Boswell conceding to John Howard control of the Senate saying Prime Minister you have control of the Senate. I view no one could more be a traitor to the Constitution in tha t regard as he did. By it destroying the very constitutional set up to have one House representing the states and one representing the Commonwealth as whole. In my view, there is a conflict of interest for any Senator to be a Minister of State. And, I view the government by this using it numbers to deny many Members of parliament a copy of the Bill before the House to be voted upon, and also allowing them sufficient time to consider and debate the issue is no less then TERRORISM, and the High Court of Australia despite of this having shown not to have considered this in its judgment completely failed to be a true GUARDIAN OF THE CONSTITUTION. In my view it merely RUBBERSTAMPS what the Federal Government desires under the pretext of considering the matter before the Court, it became as much part of this crime of TERRORISM as any other criminal does where perhaps not pulling the trigger in a hold-up nevertheless is an accomplish by driving the get away car or cause the criminal to elude the police by harbouring the criminal. In my view, we should have specialist judges who only deal with constitutional issues in the High Court of Australia, as in my view the High Court of Australia simply is not up to the task to appropriately deal with constitutional issues in its current
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set up. For this also the urgent need for the creation of an OFFICE OF THE GUARDIAN, as I for one cannot see how the High Court of Australia otherwise will ever be competent to fulfil its task to be a GUARDIAN OF THE CONSTITUTION, where it proved already not able to do so! * Are you aware I asked just one question and you respond with about 7 pages answer! And it wasnt even fully about it all such as ULTRA VIRES, as I understood this Chapter was going to be about!
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**#** Well it was regarding many issues but there is more, why not then go to the next Chapter, shall we? END QUOTE Chapter 007A The Great Deception When we look at the 2006 WorkChoices decision then it appears to me we lack a competent High Court of Australia to consider and hand down a judgment based upon the true meaning and application of the constitution. . As quote below:
INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-112006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour) QUOTE Chapter 022A Failure of the case D\'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005) HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ RYAN D'ORTA-EKENAIKE APPLICANT AND VICTORIA LEGAL AID & ANOR RESPONDENTS D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003 GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ; As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it is, in Quick and Garran's words[31], "the third great department of government". END QUOTE Chapter 022A Failure of the case
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Lets look as to what the Framers of the Constitution held the High Court of Australia was to be. .
HANSARD 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON: It is provided that instead of, as before, the Parliament having power to constitute a judiciary, there shall be a Supreme Court, to be called the High Court of Australia, as a part of the Constitution-that I believe to be an improvement-and other courts which the Parliament may from time to time create or invest with federal jurisdiction. END QUOTE
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Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention), QUOTE Mr. OCONNER (New South Wales).Because, as has been said before, it is [start page 357] necessary not only that the administration of justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion; END QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p182
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Therefore, the High Court of Australia to claim that it is the third department of government means that it holds that it is part of the Government and not independent as is required under the provisions and the embedded legal principles in the constitution. 5 Little wonder then that when in 2003 I had the Governor-General as first Defendant the 7 judges of the High Court of Australia visited the governor-General, albeit at the time concealing this from me, and subsequently dismissed my case. To me this was fraternising with the first defendant and the subsequent dismissal was without legal justification. It is a mere matter of record who were the 7 judges at the time of the High Court of Australia! Also, earlier in 2003 I had lodges on 18 February 23 that the Commonwealth of Australia couldnt invade a friendly country as unless and until the Governor-General published a DECLARATION OF WAR against a country intended to be invaded (such as Iraq) no authority lies with a Minister of Defence to authorise Australian soldiers to invade Iraq. And a Prime Minister has no such constitutional authority, nor the Cabinet!
HANSARD 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON (New South Wales).Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. END QUOTE HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere with the imperial prerogative in matters of war and peace!
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END QUOTE . HANSARD 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. END QUOTE
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So, here I as a CONSTITUTIONALIST seeks to have the High Court of Australia invoking jurisdiction and it simply as I view it deliberately railroaded my applications. First, when the Deputy Registrar refuses to accept my application that was lodged for filing on 18 February 2003 and so I seek a review before a judge. On 19 February a judgment was given that the 18 February 2003 application was refused for filing. The Deputy Registrar THEN MARKED ON THE DOCUMENTATION HOW I SHOULD AMEWND THE APPLICATION TO MAKE IT ACCEPTABLE, and so on 18 March 2003 I lodged with the High Court of Australia the amended (as directed by the Deputy Registrar) application, which was again refused (a different Deputy Registrar). So I sought a review. And now it comes. The judge on 19 February 2003 (the day of the unconstitutional murderous armed invasion into Iraq) then refuses to accept the filing of the application citing the 18 February 2003 application lodged. So, the 18 March 2003 application itself still remains on foot! In 2002 I then requested the Commonwealth Ombudsman to investigate why the Australian Electoral Commission didnt check refugee detention Centres as to people allowed to vote in the 2001 Federal election. The Commonwealth Ombudsman refused to investigate. And, again the
Deputy Registrar High Court of Australia likewise refused my 18 February 2003 and 18 March 20903 applications for filing, and the High Court of Australia itself twice refused the 18 February 2003 application but not the 18 March 20903 application, which again is still pending. Low and behold in 2005 Mr John Howard request the Commonwealth Ombudsman to investigate and this after the Cronelia Rau and Vivian Alvarez Solon cases and then it was found numerous others were illegally held in detention. The commonwealth Ombudsman obviously didnt reveal in his report his own culpability by refusing to investigate in 2002. Nor did the High Court of Australia bother about this.
Hansard 24-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. BARTON.-The High Court cannot act unless complaint is made, but the Parliament can act whenever it likes. Sir EDWARD BRADDON.-Only on motion.
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END QUOTE QUOTE Thomas Jefferson: "The germ of destruction of our nation is in the power of the judiciary, an irresponsible body - working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated." . END QUOTE
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Not a single judge of the High Court of Australia in my view was competent in relevant constitutional matters, for example the Sue v Hill case was not one based upon facts that is constitutionally valid facts but was based upon whatever the judges appeared to assume.
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Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are just to both. Mr. DEAKIN.-It is made for the lawyers under this clause. Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is required at all; it can simply be provided that a certain number of gentlemen shall be elected, and meet together, and, without limitation, do what they like. Victoria would not agree to that. But there is a desire to draw the very life-blood of the Constitution, so far as the states are concerned, by this insidious amendment, which would give the Houses authority from time to time to put different constructions on this most important part of the Constitution. I hope we will do as we have done in many instances before, in matters that have been much debated-adhere to the decision we have already arrived at. END QUOTE Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. END QUOTE Hansard 19-4-1897 Constitution Convention Debates QUOTE Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE . Hansard 22-2-1898 Constitution Convention Debates 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p184
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QUOTE Mr. SYMON (South Australia).That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has described, of choosing or setting up a code of laws to interpret the common law of England. This Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to this, not to a small select body of legislators, but to the whole body of the people for their acceptance or rejection. It is the whole body of the people whose understanding you have to bring to bear upon it, and it is the whole body of the people, the more or less instructed body of the people, who have to understand clearly everything in the Constitution, which affects them for weal or woe during the whole time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be appreciated by the people. END QUOTE
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And then consider:

Hansard 20-4-1897 Constitution Convention Debates
QUOTE Mr. HIGGINS: I think it is advisable that private people should not be put to the expense of having important questions of constitutional law decided out of their own pockets. END QUOTE
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Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?
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But a person who as a sentry places a constitutional matter before the High Court of Australia can then be lumped with cost. Clearly in gross defiance of the intentions of the Constitution. 35
http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50 QUOTE Constitutional interpretation The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. END QUOTE Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999) QUOTE
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2.
Constitutional interpretation The starting point for a principled interpretation of the Constitution is the search for the intention of its makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional interpretation is not a search for the mental states of those who made, or for that matter approved or enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]: "We must begin, in my view, by asking what - on the best evidence available - the authors of the text in question intended to say. That is an exercise in what I have called constructive interpretation[54]. It does not mean peeking inside the skulls of people dead for centuries. It means trying to make the best sense we can of an historical event 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p185
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someone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion." 3. The application which this Court has given to some words and phrases of the Constitution would almost certainly have surprised most of those who participated in the making of the Constitution. Most of them could not have foreseen the extent to which the application of those words and phrases would enable the Commonwealth to dominate the federation and reduce the power of the States to control their domestic affairs. But that does not mean that this Court's interpretation of our Constitution has lacked fidelity to the intentions of those who made the Constitution. Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in Ex parte Professional Engineers' Association[55] Windeyer J said: "We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes." END QUOTE
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Yet, the High Court of Australia gave Australian Citizenship a totally different meaning then that which is constitutionally applicable!
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Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. BARTON. If we are going to give the Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament." END QUOTE
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. As a matter of fact it somehow seemed to create a constitutional monarchy even so this is not permitted within the legal principles embedded in the constitution.
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Now admittedly I didnt have English as my native language and neither had any formal education in the English language but even with myself professed crummy English it seems that the above quoted statement is very clear that the Commonwealth of Australia is no more but a political union (One may compare with the European Union). Therefore it is not a country and neither can have as such a nationality of Australian Citizenship. Judgers have no constitutional powers to twist or pervert the true meaning of the constitution!
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Mr. SYMON.-The honorable and learned member is now dealing with another matter. Would not the provision which is now before us confer upon the Federal Parliament the power to take away a portion of this dual citizenship, with which the honorable and learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is asked to do is to hand over to the Federal Parliament the power, whether exercised or not, of taking away from us that citizenship in the Commonwealth which we acquire by joining the Union. I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing to do it in everything which concerns the working out of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the Union. END QUOTE . Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded the spirit of federation far beyond anything any of us has hitherto contemplated. He has enlarged, with great emphasis, on the necessity of establishing and securing one citizenship. Now, the whole purpose of this Constitution is to secure a dual citizenship. That is the very essence of a federal system. We have debated that matter again and again. We are not here for unification, but for federation, and the dual citizenship must be recognised as lying at the very basis of this Constitution. END QUOTE
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Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring property in the legislating colony, or only allow him to acquire it under adverse conditions? But why not? The whole control of the lands of the state is left in that state. The state can impose what conditions it pleases-conditions of residence, or anything else-and I am not aware that a state has surrendered the control of the particular administration of its own lands, or of anything that is left to it for the exercise of its power and the administration of its affairs. I would much prefer, if there is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one modification, omitting the words-"and all other persons owing allegiance to the Queen." That would re-open the whole question as to whether an alien, not admitted to the citizenship here-a person who, under the provisions with regard to immigration, is prohibited from entering our territory, or is only allowed to enter it under certain conditions-would be given the same privileges and immunities as a citizen of the Commonwealth. Those words, it seems to me, should come out, and we should confine the operation of this amendment so as to secure the rights of citizenship to the citizens of the Commonwealth. I think, therefore, that with some modification the amendment suggested by Tasmania would be a proper one to adopt. END QUOTE Hansard 8-3-1898 Constitution Convention Debates QUOTE
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Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on terms that are just to both. Mr. DEAKIN.-It is made for the lawyers under this clause. Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is required at all; it can simply be provided that a certain number of gentlemen shall be elected, and meet together, and, without limitation, do what they like. Victoria would not agree to that. But there is a desire to draw the very life-blood of the Constitution, so far as the states are concerned, by this insidious amendment, which would give the Houses authority from time to time to put different constructions on this most important part p187 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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of the Constitution. I hope we will do as we have done in many instances before, in matters that have been much debated-adhere to the decision we have already arrived at. END QUOTE
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Hansard 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through their Parliament the power of the purse-laying at their mercy from day to day the existence of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act which is unfavorable to the people having this security, it must in its very essence be a free Constitution. Whatever any one may say to the contrary that is secured in the very way in which the freedom of the British Constitution is secured. It is secured by vesting in the people, through their representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of securing absolute freedom to a people than that, unless you make a different kind of Executive than that which we contemplate, and then overload your Constitution with legislative provisions to protect the citizen from interference. Under this Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only in the, daily government of the country, but in the daily determination of the question of whom is the Government to consist. There is the guarantee of freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every one has sought to strengthen. How we or our work can be accused of not providing for the popular liberty is something which I hope the critics will now venture to explain, and I think I have made their work difficult for them. Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will determine questions arising under this Constitution, and with all other questions which should be dealt with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free: next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly , that the Constitution shall not, nor shall any of its provisions, be twisted or perverted , inasmuch as a court appointed by their own Executive, but acting independently, is to decide what is a perversion of its provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well. END QUOTE
45 It should be noted that in the issue of FAILING TO VOTE I appealed both cases to the County Court of Victoria and on 19 July 2006 comprehensively defeated the Commonwealth of Australia in both appeals. As I (and so unchallenged) submitted the framers of the Constitution embedded the legal principle in the constitution that one only was to vote if one desired to vote. In fact they refused to give the commonwealth legislative powers to make voting compulsory. S128 of the constitution refers to electors who voted and not to electors who are eligible and/.or registered to vote. In this case I also (and so unchallenged) submitted that Australian Citizenship is a political status and not a nationality, as Australians are constitutionally Subjects of the British Crown regardless if politicians and judges do not go along with this as none of them can undermine or amend the constitution. Much hype was given by RUVANI WICKS, Assistant Director, Civil Branch of the Department of Justice for the Attorney- General at the time (2002) about the 1988 Constitutional Commission and in
which he then stated to me:
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CORRESPONDENCE 18 November 2002

As explained in my previous letter, citizenship is a matter for the Commonwealth, not t he States. You indicated that you were naturalized in 1994. As result of that, you are an Australian citizen.
In his previous correspondence he claimed;

QUOTE While the Federal Parliament has not been granted an express power to make laws with respect to nationality and citizenship, it has been assumed that the Parliament does have such a power. The power is either implied in section 51(xix) [of the Constitution] or is one of the implied national powers. Its exercise by the Federal Parliament, by enactment of the Australian Citizenship Act 1948 has certainly not been called into question in any case before the High Court of Australia. END QUOTE
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There is no provision within the Commonwealth of Australia Constitution Act 1900 (UK) our principal source of legislative powers and how to amend the constitution for any Constitutional Committee to twist and pervert the true meaning and application of the constitution. As set out below Australian Citizenship was a legal term embedded in the constitution and frequently used by the Framers of the Constitution referring to the political rights of being a member of Australian citizens that is derived from having obtained State citizenship and not otherwise. As set out below also. Aboriginals who had Colonial/State citizenship by way of s41 of the constitution had therefore Australian Citizenship. Yet, the 19667 con-job referendum purported to amend s51(xxvi) as to be able to give Aboriginals citizenship. And as I understand it the Constitutional Committee seemed to support this referendum, by this showing its incompetence to understand the true meaning and application of the constitution. I, in 2012, and 2013, for example represented (as a Professional Advocate) James, a solicitor and barrister for 22 years in various proceedings, to which he personally didnt attend! This oxymoron that we have constitutional lawyers must be departed from. Anyone with a bit of understanding of legal proceedings will be well aware that if you have 100 cases determined by the courts in which each party is legally represented then 100 set of lawyers will be proven wrong and 100 sets of lawyer will be on the winning sides. As such, a 50% change that the legal advice of the legal team engaged can be right or wrong. If we were to apply a 50% rate with doctors doing operations then they would be deemed to be charlatans. Lawyers do no more but give their views (opinions) about legal matters and they can be dead wrong! The mere fact that I comprehensively defeated the commonwealth with its highly paid lawyers in the County Court of Victoria on 19 July 2006 and without them challenging any of my submissions based upon constitutional legal principles may underline that lawyers are not 100% correct in their legal opinions. And to underline this, the High Court of Australia itself is on record:
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In my view a Royal Commission must act as like the judiciary legal principles set out below!
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p189
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The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately right.. Whatever else may be said with respect to previous decisions - and it is necessary here to consider the principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong, and there are no circumstances countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court should be expressed. END QUOTE In Re O (infants) (1971) Ch 748,754 and 755 QUOTE In my considered opinion the law now is that if an appellate court is satisfied that the decision of the lower court is wrong, it is it's duty to say so and act accordingly. END QUOTE
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Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court. END QUOTE
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As a Professional Advocate (now retired) I held the Foster doctrine always essential in any representation.
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The problem is that with a Royal Commission, as with the Constitutional Committee, when it hands down a decision people tend to take this for granted and this is why it is so serious that the Royal Commission is not going to go along with any nonsense that may have been presented in the past being it by a judge or a constitutional committee, etc, but that it will be open minded and deal with matters/issues as is constitutionally applicable.
The following part of transcript indicates how the High Court of Australia itself is confusing citizenship with nationality. Dang, Ex parte - Re MIMA M118/2001 (18 April 2002) IN THE HIGH COURT OF AUSTRALIA
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Office of the Registry Melbourne No M25 of 2001 TRANSCRIPT OF PROCEEDINGS AT CANBERRA ON THURSDAY, 18 APRIL 2002, AT 10.17 AM
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KIRBY J: Your clients were not British subjects. MR MAXWELL: That is so. If I might move immediately to the question of what Patterson decided. In our respectful submission, what Patterson decided was this, that allegiance, not citizenship, is the touchstone for determining alien status. KIRBY J: There is only one reference to citizenship in the Constitution, is there not, and that is the disqualification that was considered in Sue v Hill? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p190
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MR MAXWELL: Yes, your Honour. KIRBY J: There is no other reference to the concept and, indeed, we did not have a Citizenship Act until quite late in the history of the Commonwealth. MR MAXWELL: One of the critical aspects which comes through clearly in the judgments, both the dissenting and the majority judgments in Patterson, is the point your Honour has just adverted to: alien is a concept of our Constitution, citizenship is a concept of our statute law. Your Honours Justices Gummow and Hayne in the joint judgment put in these terms the proposition advanced by the prosecutor in Patterson, namely, at paragraph [223]: alienage and citizenship . . . do not occupy the relevant universe of discourse That, we would respectfully adopt, though your Honours disagreed in the result, as being the proposition which the majority did endorse. That is to say, it does not follow that because a person is a non-citizen he or she is, by definition, an alien because you must be one or the other. What Patterson held and why Nolan had to be overruled was that there is a category of non-citizen non-alien. That is what your Honours held by majority Taylor was. He was not a citizen and he was not an alien. GUMMOW J: I should make clear to you I do not regard that matter as closed. MR MAXWELL: I am indebted to your Honour. GUMMOW J: It seems to me absolutely fundamental. MR MAXWELL: It is absolutely fundamental and, in our respectful submission, there can be no conclusion, with respect, other than that is what this Court found because Mr - - GUMMOW J: I am not so sure about that. The Solicitor-General goes into all of this. MR MAXWELL: Your Honour, we note with some surprise that less than a year after that decision was handed down, the Commonwealth is inviting this Court to reopen it and overrule it if it says what we say it says. GUMMOW J: The question really is whether it should have overruled Nolan. Now, I will not hold you up. MR MAXWELL: Your Honour, in our respectful submission, this Court did overrule Nolan. Four Justices of the Court addressed the question whether it should be overruled and each of them decided for reasons given that it should and it is no longer the law in this country, in our respectful submission, and we will go further and say that necessarily Pochi was at best left under a considerable cloud, if not necessarily overruled by that overruling. GUMMOW J: It seems to me what I was putting to you really can be put to one side because you have to go further in this case, and that is the real point. MR MAXWELL: Indeed, your Honour. Plainly enough - - KIRBY J: As I understand your argument, it is that until Taylor there was clear authority that there was a simple clear criterion for alienage, non-citizen. MR MAXWELL: Exactly so. KIRBY J: After Taylor, whatever is the criterion, the base has shifted. MR MAXWELL: Yes, your Honour. KIRBY J: It did not have to shift further than British subjects to resolve the issue of Patterson. MR MAXWELL: That is so. KIRBY J: But you say, having shifted the basis, a new, stable basis must be found and therefore this case presents the obligation to find that new, stable basis. MR MAXWELL: Exactly so. GUMMOW J: And what is the stable basis? MR MAXWELL: The starting point is that the obligation of allegiance can come into existence between a person and the Queen of Australia otherwise than by the taking out of citizenship. The next question is, by what criteria is the establishment of that obligation to be determined - I am sorry, your Honour? GAUDRON J: You say "can". Did Patterson go further than say at a certain time it could come into operation by that method in respect of a certain category of people? MR MAXWELL: That is so, but - - GAUDRON J: Yes. Well, you have to go beyond that to say that since, when? At all relevant times it has been possible and it continues to be possible? MR MAXWELL: Your Honour, all I need to establish is that at the date of the relevant decisions the obligation of allegiance had been assumed by these individuals. It is quite separate, of course, from the discussion which was necessarily engaged in for Patterson about the evolution of the Crown in right of Australia and its separation from Britain. These are, plainly, individuals who have never been British subjects. This is a different case. But as his Honour Justice Kirby has put, we will be inviting the Court to explore this category of non - - GUMMOW J: We do not set off on exploration tasks. We respond to submissions and we are trying to find what your submission is. MR MAXWELL: Of course, your Honour. GUMMOW J: You can tantalise us with this notion of a stable basis. The question is: what is it? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p191
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MR MAXWELL: In these cases - - GUMMOW J: Bearing in mind that Patterson was, on one view of it, all about the changing nature of the British Commonwealth, to use that expression. MR MAXWELL: Your Honour, we put the stable basis on three bases in these cases as set out in our submission. First, we say that each of these individuals renounced his allegiance to his country of birth by fleeing from a regime which could not guarantee him protection. GUMMOW J: How do notions of allegiance work with republican systems of government? As I understand it, the whole notion of citizenship dates back to the American and French Revolutions, where they had to replace notions of allegiance which were monarchical with something else and they devised the notion of citizenship. These gentlemen never owed allegiance to any sovereign, did they? MR MAXWELL: No, though your Honour will - - KIRBY J: Although they would have been born during the reign of Prince Sihanouk. Cambodia was not a separate colony of France; it was a protectorate. So I think that is something we would not know without some detail. GUMMOW J: That is right. MR MAXWELL: But, your Honour, in our respectful submission, as a matter of principle this will not turn on whether a person came from a country which was a monarchy or a republic. The concept of allegiance - - GUMMOW J: The point I am trying to make to you is that notions of allegiance come out of English medieval feudalism. That is where it comes from - monarchical feudalism. MR MAXWELL: With respect, we fully appreciate that. As your Honours in the lengthy joint judgment explained, the concept has developed very significantly since the original notion of personal loyalty to a lord. It became, and it was declared in the Court of Queen's Bench in the 1880s, as your Honours pointed out, that it changed from a personal obligation or an obligation to the sovereign in his or her personal capacity to an obligation to the sovereign in his or her political capacity. That is just one respect in which the discussion about allegiance in the 21st century is a different discussion from that which it would have been under more confined notions. HAYNE J: And it is pointed up by your proposition that each renounced allegiance to the country of his birth because the regime of the day would not protect him. MR MAXWELL: Exactly so. HAYNE J: But is allegiance concerned with allegiance to the government? Is it more abstracted a notion than allegiance to whatever regime is in power? GAUDRON J: There is a further question of course too and that is, by whose law is this renunciation to be determined? That was addressed in Sykes and the general principle of international law is that that is determined by the laws of the country of which the person was a citizen or to which he or she owed allegiance. MR MAXWELL: Yes, your Honour. GAUDRON J: So it is not a simple question, I should have thought. MR MAXWELL: No, and it is not necessary for our argument, with respect, that there have been no renunciation. GAUDRON J: Well - - MR MAXWELL: It is not. It happens to be the fact and it makes our cases a fortiori, but what is the critical question is whether it can be said of the person that he has assumed the obligation of allegiance and our submission puts it that it - - GAUDRON J: And you put that as a one-way traffic as well. MR MAXWELL: Well, with respect, no we do not. We gratefully accept the analysis of their Honours in the joint dissenting judgment, which points out that changes in the relationship of allegiance can occur either by the joint act of the parties to it, the subject and the sovereign, or by the unilateral act of either, which, apart from anything else, enables us to put to one side the old notion that allegiance was perpetual and the naturalborn subject could never give it up. The concept of naturalisation scotched that notion 100 years ago. It can be given up by a formal act. We submit that one would expect to find a parallel notion of renunciation by conduct, but we accept - and our learned friends say just because you have renounced your citizenship of another country does not mean you have become a citizen of Australia. Well, we accept that. We do not assert that the renunciation somewhere else makes you a subject of the Queen of Australia. There needs to be an act or a course of conduct of which it can be said that this person enjoys the protection of the Queen of Australia and owes her obligations of allegiance. GLEESON CJ: At which stage did your clients cease to owe allegiance to Cambodia or Vietnam respectively? MR MAXWELL: At the time they sought refuge in refugee camps or, alternatively, upon the grant of permanent residence visas to each of them, enabling them to come from the refugee camp to Australia. At that point, we have argued in our submission that the self-description as a refugee is the explanation or the manifestation of the renunciation. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p192
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GLEESON CJ: They are interesting alternatives, in practice, because if the former is correct, they would have been in the same situation even if they had been refused visas. MR MAXWELL: That is so. Again, they were granted visas and that means that - and we will take your Honours in due course to the findings of fact in the Tribunal in each case - each of these persons was a refugee at the time and, as I understand it, there is no dispute about that. We do not say that an application for refugee status was made and determined in Australia. There is no evidence that that occurred. Nor is there any doubt but that they were refugees in the sense in which that term is understood - defined in the Convention. Your Honours will see in the material a question arises before the Tribunal "whether the protection obligations which Australia owed under the Convention still obtained as at the date of the Tribunal review?" Held: "No they don't. Conditions have changed in Cambodia or Vietnam. The protection obligation does not subsist." To come back to your Honour's question. The assertion of refugee status is the act of renunciation because it is a statement that, "I cannot rely on the sovereign government of my country to protect me." Indeed, that language is used in the Convention itself. GLEESON CJ: Why did they need visas? I wondered if it was because they were aliens. MR MAXWELL: Well, they otherwise had no right to enter Australia. GUMMOW J: You seem to be asserting they did. Of course HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution - - MR MAXWELL: As a matter of international law - - GUMMOW J: Forget about international law, because HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/c167/" the Constitution operated in some magical way. MR MAXWELL: No, your Honour. We conceded before Justice Hayne that these people had not - I think we conceded they were aliens at the point of arrival. We will seek to qualify that concession by the protection allegiance argument we have made in our reply. We start with the proposition that Australia owed obligations of protection to these refugees under the 1951 Convention. At that point there was an acceptance of what is described in the Refugee Convention in these terms, and it is in the material, a person is, "unable or . . . unwilling to avail himself of the protection of that country". What is helpful in this analysis, in our respectful submission, is what Sir John Salmond, in the Law Quarterly Review article that we will take your Honours to, and the House of Lords in Joyce refer to as "the reciprocal obligations of protection by the sovereign to the subject and allegiance by the subject to the sovereign." KIRBY J: Could I just ask a factual matter, that is partly a legal matter. Was there any impediment to your clients becoming naturalised Australian citizens? MR MAXWELL: Not that I am aware of, your Honour, no. No application was made. At a certain point they may have, by their criminal convictions, become unable to satisfy the "good character" requirement. KIRBY J: Does one draw any inference at all from the fact that in the interval between their arrival as children and their evictions, that they could have signified their allegiance to the Queen of Australia and the people of Australia by becoming citizens but omitted, failed, refused to do so? MR MAXWELL: In our respectful submission, no. One draws no inference because - and this comes back to the fundamental point - the assumption of citizenship - we have put this in terms in the outline - is a sufficient condition of allegiance but it is not a necessary condition, and that is what Patterson held. If that is correct, then the non-taking out of citizenship does not disqualify a person from being a subject of the Queen of Australia. GAUDRON J: But are we not a little bit off the track here? From a constitutional point of view we are concerned with aliens and non-aliens. At least in the case of persons who are not and never have been British subjects is it not the case that it is well within the legislative power of the Parliament to decide and define who are and who are not aliens? CALLINAN J: That is what Mr Justice Barton said in Ferrando v Pearce. GAUDRON J: But is that not the case, that it has legislative power to define who are and who are not aliens? MR MAXWELL: Yes, but, with respect, to exclude from a statutory definition of aliens - let me put that differently - to include within a statutory definition of aliens someone who is not is beyond power. GLEESON CJ: But if granting a visa to someone produces the result that they are not an alien, then the entire scheme of the Migration Act 1997 has miscarried, has it not? Its long title is it is "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens". Visas can be cancelled, can they not? By the reasoning of the Framers of the Constitution (the Delegates to the Constitution Conventions) a subject to the Crown was anyone who was subjected to the laws of the Crown regardless if they were aliens or not. Shaw v Minister for Immigration and Multicultural Affairs HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/2003/72.html" p193
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[2003] HCA 72
9 December 2003 B99/2002 10. However, contrary to the submissions for the applicant, the result of such a consideration of his position is his classification as an alien for the purposes of HYPERLINK "http://www.austlii.edu.au/au/legis/cth/num_act/c167/s51.html" s 51 (xix) of the Constitution. Much of the applicant's argument proceeded from the premise that, because the expression "British subject" could be applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a constitutional expression; it is a statutory expression. Secondly, and more fundamentally, if "British subject" was being used as a synonym for "subject of the Queen", an expression which is found in the Constitution, that usage would assume that there was at the time of federation, and there remains today, a constitutional and political unity between the UK and Australia which 100 years of history denies. Hansard 2-3-1898 Constitutional Convention Debates Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of the British Crown.
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Hansard 1-4-1891 Constitution Convention Debates Mr. MUNRO: . I am proud of being a citizen of the great British empire, and shall never fail to be proud of that position.
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Hansard 26-3-1891 Constitution Convention Debates Mr. HOLDER:
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because I take it that the legal bonds which bind us to the mother-country, to the great British Empire, Hansard 1-4-1891 Constitution Convention Debates Mr. BARTON: The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in the whole bill. If that is done, there can be no association of the idea of republicanism with this bill. Hansard 2-3-1898 Constitution Convention Debates Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth . Hansard 2-3-1898 Constitution Convention Debates Dr. QUICK.we were not in any way interfering with our position as subjects of the British Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. Hansard 3-3-1898 Constitution Convention Debates Mr. BARTON.We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term, and is not known to the Constitution. The word "subjects" expresses the relation between citizens of the empire and the Crown. Sir GEORGE TURNER.-Is a naturalized alien a subject?
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Mr. BARTON.-He would be a citizen under the meaning of this clause. Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include naturalized aliens? Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this definition? And 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p194
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Mr. OCONNOR.-Exactly. It has two meanings, but we are only dealing now with the one meaningthe general meaning. Mr. Isaacs' reference shows the danger that might be incurred by using the word "citizen," because it might have the restrictive meaning the last decision imposes. All we mean now is a member of the community or of the nation, and the accurate description of a member of the community under our circumstances is a subject of the Queen resident within the Commonwealth." Mr. SYMON.-A person for the time being under the law of the Commonwealth. Mr. OCONNOR.-A person for the time being entitled to the benefits of the law of the Commonwealth. And
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Mr. BARTON (New South Wales).-If it is a fact that citizens, as they are called, of each state are also citizens of the Commonwealth, there may be some little doubt as to whether this is not providing for practically the same thing. Mr. WISE.-No, there may be territories that is what I want to provide for.
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Mr. BARTON.-In other portions of the Bill we use the words "parts of the Commonwealth" as including territories, so that the object of Mr. Wise would be met by using the words "citizens of every part of the Commonwealth" or "each part of the Commonwealth." Mr. BARTON.-
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We are subjects in our constitutional relation to the empire, not citizens. "Citizens" is an undefined term, and is not known to the Constitution. The word "subjects" expresses the relation between citizens of the empire and the Crown. Sir GEORGE TURNER.-Is a naturalized alien a subject? Mr. BARTON.-He would be a citizen under the meaning of this clause.
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Sir GEORGE TURNER.-Suppose you say "subject" without definition, would that include naturalized aliens? Mr. BARTON.-Yes. Dr. Quick's definition is: Persons resident in the Commonwealth, either natural-born or naturalized subjects of the Queen, and if they are subject to no disabilities imposed by the Parliament they shall be citizens of the Commonwealth. Why not use the word "subject," and avoid the necessity of this definition?
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Dr. QUICK.-This definition does not interfere with the term "subject" in its wider relation as a member of the empire or subject of the Queen. Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any disability imposed by the Parliament be loses his rights.
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And Dr. QUICK.-The regulation would have to specify the ground of disability. Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament. Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of citizenship under the Commonwealth would be lost?
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Mr. KINGSTON.-There might be a special disability on minors. Mr. BARTON.-That might be one of the disabilities. Of course here the disabilities as to minors would not matter much, but I would like to put this consideration to Dr. Quick, that if we use the term "subject," or a person subject to the laws, which is a wider term, we shall avoid the necessity for a definition of "citizen." You might say a subject or resident being the subject of the Queen.
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Mr. SYMON.-There is no man in Australia who is more profoundly versed in constitutional law than Mr. Isaacs, and he knows that every point and every question has been the subject of more or less debate and discussion, and will be until the end of time.
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The words "subject," "person," and "citizen" can be made subjects of controversy at all times if occasion requires it. At the same time, it does not affect the principle that there should be a definition of "citizen," either in the form suggested by Dr. Quick or by Mr. Barton.
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Mr. ISAACS (Victoria).-I am afraid that the amendment is far too wide, unless we say that the disabilities imposed by Parliament may extend to birth and race. This would, notwithstanding the rights conferred under clause 52, deprive Parliament of the power of excluding Chinese, Lascars, or Hindoos who happened to be British subjects. And Mr. GLYNN.I would like to mention, in connexion with what Mr. Isaacs said as to aliens, that this provision would not interfere in the slightest degree in the way of preventing aliens from coming in, because it is only when the aliens get inside the Commonwealth that this provision is to apply to them. The decision of the Privy Council in the case of Ah Toy v. Musgrove was that an alien had no right to land here, but that decision does not affect his citizenship after he has landed. END QUOTE 19 7-2006 submission to the County Court of Victoria (unchallenged by Attorney-Generals) END QUOTE 19 7-2006 submission to the County Court of Victoria (unchallenged by Attorney-Generals) Hansard 2-3-1898 Constitutional Convention Debates Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of the British Crown. Hansard 1-4-1891 Constitution Convention Debates Mr. MUNRO: . I am proud of being a citizen of the great British empire, and shall never fail to be proud of that position. Hansard 26-3-1891 Constitution Convention Debates Mr. HOLDER:
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because I take it that the legal bonds which bind us to the mother-country, to the great British Empire, Hansard 1-4-1891 Constitution Convention Debates Mr. BARTON: The association of the Queen with the action of the commonwealth is distinct, and is firmly embedded in the whole bill. If that is done, there can be no association of the idea of republicanism with this bill. END QUOTE 19 7-2006 submission to the County Court of Victoria (unchallenged by Attorney-Generals) QUOTE Chapter 032C CITIZENSHIP v NATIONALITY (INSPECTOR-RIKATI series of books)
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Chapter 032C CITIZENSHIP v NATIONALITY * Gary, I understand you claim Australians really are and remain to be British nationals?
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**#** INSPECTOR-RIKATI, that is if they are natural born or naturalized. Australians who are neither are still subjects of the British Crown for being under British rule until they leave British soil, as Australia is.
QUOTE 19-11-2002 correspondence to Victorian Attorney-General WITHOUT PREJUDICE Attorney General Victoria Fax 9651 0577 URGENT Sir/Madam 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p196 19-11-2002 AND TO WHOM IT MAY CONCERN
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Since 27-9-2002 I sought clarification about what, if any State citizenship I have as to be able to obtain Australian citizenship, yet, in the recent 18 November 2002 response it was stated;
As explained in my previous letter, citizenship is a matter for the Commonwealth, not the States. You indicated that you were naturalized in 1994. As result of that, you are an Australian citizen. This utter ridiculous response was provided by RUVANI WICKS, Assistant Director, Civil Branch of the Department of Justice.
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Edmund Barton (later becoming the first Prime Minister of Australia and thereafter a judge of the High Court of Australia) made very clear during the convention, that if it isnt in the Constitution, then the Commonwealth had no legislative powers. RUVANI WICKS refers me to the Commonwealth Government to sort out matters, however this is clearly unacceptable, this, as the State of Victoria and not the Commonwealth deals or must deal with State Citizenship! Unless you can point out when there was a reference of legislative powers from the State of Victoria to the Commonwealth approved within Section 128 of the Commonwealth constitution, I view, there never was and still is no constitutional legislative powers by the Commonwealth to determine State or any other citizenship! END QUOTE Chapter 032C CITIZENSHIP v NATIONALITY
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It seems to me that on a constitutional basis Australian Citizenship is a political standing that is AUTOMATICALLY obtained (subject to certain qualifications) when obtaining State citizenship (so Territorial citizenship) Let us also consider the following:
INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-112006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)
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QUOTE Chapter 022A Failure of the case

Hansard 5-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: That reminds me of a point I was nearly passing. I may be pardoned for leaving this part of my argument in a confessedly imperfect state; because, to answer all interjections would take too long. I shall be delighted to resume the argument in Committee, to obtain more knowledge, and to challenge the advocates of the policy to show that any expenditure can conflict with state rights properly so-called. Let them in the first instance define state rights, and then let us see how they will be impaired. I will be second to no delegate in my anxiety to preserve what I understand to be state rights. So anxious am I to preserve them, that I would never dream of intrusting them to a senate. Let us know what state rights are, and let us be careful to secure them under our constitution, so that they may never be liable to be swept away. We should fail in our duty if we did not embody in our draft such a distinct limitation of federal power as would put the preservation of state rights beyond the possibility of doubt. Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal Government or leave it to the States. The object of Federation is, while federating on common matters, not to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as you are giving a distinct power to override the States legislation. Is the power simply to be exercised with the consent of the States, or is it to be an overriding power. Mr. KINGSTON: It is a power which the Federal Parliament may exercise. An HON. MEMBER: If they make any law it will override any local law.
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Mr. KINGSTON: Only where it is inconsistent. Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put among these sub-sections is practically a power which necessarily overrides every other power, and therefore 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p197
there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies, still they are to a great extent local matters of dispute. Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony.
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Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a difficult thing for the Federal Government to interfere, even where the ramifications of the disputes extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this kind being effected; but I do not think that there should be any power included in this Bill which will so interfere with the local industrial life of any State as practically to dictate to the State with regard to trade disputes. Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means. Industrial dispute extending beyond the limits of one colony are the words used, but how can that happen? Mr. HOWE: A maritime strike affects the whole national life.
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Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in each State. Because there is the same dispute in other colonies, it does not create a dispute extending beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State, and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any dispute which in itself can extend beyond the limits of the State. Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the shipping trade? Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the colonies will not be prepared to accede to-it will be a departure from the proposition that there must be a formula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute will be a dispute in the State alone, and will not extend beyond it. Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the legal luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole commerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority why not give them authority to settle a national dispute which is endangering the commercial enterprise and industrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not accomplish their object I want Sir John Downer to find words that will. Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia when he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem from another point of view. This sub-section would give concurrent federal power in dealing with industrial disputes when they extend beyond the borders of a single State. The granting of such a power is desirable, properly belonging to a Federal Government, because the disputes may be extended over large areas, and if they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative power here differs from the concurrent power usually given in other respects in this Bill. A dispute might arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes. So long as that dispute remained in South Australia it would be dealt with under that law. The federal authority will also have a law perhaps different in its provisions, in many respects, from from the law in South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera the power of the State law would cease and the power of the Federal law, which is a different law, would begin. An HON. MEMBER: So it ought to. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p198
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Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties and observances for those concerned to know the moment when they have passed from under the dominion of the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared to support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to retain the State law and federal law upon the same question as both may have to be applied in times of emergency and urgency. If you had merely left power to the State to legislate on industrial questions until the Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know that neither of my hon. and learned friends desires that. They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. But then they are confronted with the difficulties to which I have referred, and upon which I would desire the Drafting Committee to throw some light so as to enable a determination to be come to. As to the time difficulty, I suppose it could be determined by proclamation of the Federal Parliament that a particular industrial dispute had ceased to be a State dispute, and had become federal. But the hon. member wants to obtain more than that. He wants, if possible, to graft a federal law upon the State law in such a way that the federal law should only be applied where the State law cannot be applied. If South Australia and Victoria had each a law enabling them to deal with a dispute, it might be advisable that each State should deal with it. It might be better that the dispute on the Victorian side should be dealt with according to the Victorian law, and that it should be dealt with on the South Australian side according to the South Australian law. But where the States altogether find themselves unable to cope with an intercolonial struggle, it seems to be highly desirable that there should be provision for federal action. I hope the hon. gentlemen will indicate to the Drafting Committee how they are going to distinguish between those two separate spheres of action. And Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer that it is impossible to say when any dispute extends outside the limits of a colony, because a dispute is always in one colony although it may be going on in every colony. In [start page 786] another sense every dispute extends outside the limits of a colony. An HON. MEMBER: Indirectly.
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Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the question. If the effect of the amendment is really to provide for the possible establishment of a Federal Court of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I am not criticising casual expressions-indicates a much wider object, which would turn this power into a weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population of Australia would more desire to confine to the local Parliaments, where they can make their influence upon members felt, than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every trade in the colonies. Mr. MCMILLAN: Hear, hear.
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Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local development it; more necessary or desirable to a State than the development of its industrial conditions, and the industrial conditions in every part of this continent in years to come may, and probably will, very largely develop. Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States?
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Mr. WISE: Will the working classes of this country be prepared to surrender the right of local selfgovernment over industrial disputes? Mr. SYMON: Hear, hear. Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the States p199 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as a local authority to deal with the necessary local conditions of trade. Sir JOHN DOWNER: Hear, hear. And
Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of wages all through Australia in any particular trade. Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this Parliament Mr. WISE: I prefer local authority.
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At the very least and in those circumstances entitled to declare the 14 November 2006 to be suspended pending the parties to return to the Court as to show cause why the 14 November 2006 judgment should be reinstated.
D\'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005) HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ RYAN D'ORTA-EKENAIKE APPLICANT AND VICTORIA LEGAL AID & ANOR RESPONDENTS D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003 GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ; As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it is, in Quick and Garran's words[31], "the third great department of government".
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Where the High Court of Australia sees itself as part of the government, rather then a independent body created under the Constitution then in itself this to me indicates the implied bias. As where it consider itself to be a department of government then I view it h as lost the plot! Its function by this prevents it to be an independent arbitrator to adjudicate as a GUARDIAN OF THE CONSTITUTION between the parties before the Court. It might have quoted Quick & Garran but this is an ill-conceived conduct as if anything it underlines that the High Court of Australia rather then to be a constitutional Court now seek to rely upon what Quick & Garran might have assigned to them that somehow the High Court of Australia is under the control of the Government by being the third great department of government rather then being an independent judicial body within the Commonwealth of Australia.
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON (New South Wales).-I beg to move-
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That this Convention cordially invites the Prime Minister of each colony here represented to provide for the supply of copies of the Draft of the Commonwealth of Australia Constitution Bill, as now finally adopted by this Convention, to the electors of his colony. This motion will, I hope, give the members of the Convention an opportunity to state from their places in this chamber to the electors who sent them here their opinion of the Draft Bill and its provisions. I think that on this, the last day of our meeting, it is only fit that some opportunity should be given to honorable members so to express their opinions that the statement of them in an authoritative form, as printed in the official report of the debates, may reach those whose verdict upon the Bill is so soon to be sought.
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It is very clear that the official reports of the Debates was intended all along to be used by those who had to give their verdict upon the Bill. As such, the Hansard debates records very much was
to be used by the electors to give them an understanding what the Commonwealth Constitution Bill was standing for. Those who voted for the Bill clearly relied upon their political and religious freedoms as was set out in the official records, and as such the Hansard official records of the Debates must be considered as part of the Constitution. Hence the political freedom how to live is clearly provided for by the Framers without undue government interference. Therefore, the Commonwealth legal requirement to having to live in a certain manner as the Federal Government may desire and in what manner (pattern) is unconstitutional, as like the piggy tail case in the USA was!
Hansard 30-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. GORDON: These remarks are in themselves trite, but they are necessary to the short argument which I shall make, and the point of which is, that in the Constitution we are about to formulate, [start page 317] we should make the smallest draft which can be made consistently with cohesion, upon the allegiance of the people of these States to the Governments under which they at present live. They are the governments to which they are accustomed; they are the governments they have themselves moulded into effective legislative machines under which a greater share of political liberty is experienced than in any countries the world ever saw Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire .
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Yes, I experienced this, as set out below in more details, where the High Court of Australia were fraternizing with the first Defendant in proceedings before the court, and subsequently railroaded, as I view it, the case. A liberty that now is denied in unconstitutional manner by the very High Court of Australia who was to be the GUARDIAN OF THE CONSTITUTION. The liberty that people now are forced to accept federal government dictated contract conditions regardless this was specifically prohibited by the Framers of the Constitution to be allowed. What kind of liberty is this one may ask.
Hansard 9-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. FITZGERALD: Another case I understood the hon. member, Sir George Grey, to put was that be favoured the appointment of the governor-general of the future dominion of Australia being a colonial appointment. But as long as this country is united to the Crown of England-and I hope that it is a very long day off indeed when it shall cease to be so-I maintain that the governor-general of the future dominion of Australia must be the appointee of her Majesty the Queen, our sovereign, who is the apex of that structure, and whose name we revere and respect in this colony equally as in any other [start page 165] part of her Majesty's dominions. Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has worked well, and in beginning the erection of this new edifice we ought to be careful we do not make a foundation mistake, for while we are pretending to make these judges the protectors of the citizens in the Commonwealth, and even superior from certain points of view to Parliament itself, at the same time we ought not to give Parliament, against whose unauthorised acts we intend the High Court to protect us, authority to remove the judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the serious consideration of hon. members. We should make our Supreme Court so strong and powerful that no Government will be able to set the Constitution at defiance owing to the presence of a majority in either 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p201
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House, whereby an authority would be obtained that was never intended by the founders of the Constitution. And
Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made as difficult as possible to amend the Constitution. The idea underlying the clause is to provide that, while an amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily capable of amendment that in any fluctuation of public opinion, any change of feeling on the part of the people in some crisis of a temporary character, it might be changed. Mr. DEAKIN: A majority of the whole people, and a majority of the States. Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the Senate and House of Representatives. I do not think this is too much to ask in such an important matter as an amendment of the Constitution, and, while I would not say the Constitution should be such as could only be amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly amended. Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause. There is power given for the intervention of the people on the question of the amendment of their Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches the people for their determination at all. Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland. Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of either House to prevent the people from expressing their views on the amendment of the Constitution. I think that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then I could understand the complaints of some of my hon. friends that that was too easy a mode, but the decision of the Legislature in this case is not intended to be final, and the passing of the amendment of the Legislature is intended to be the means of ascertaining whether this proposition is of so great an importance, of such great interest, and of such necessity as to require the consultation of the people. I can quite understand that circumstances have not failed to occur in some colonial Legislatures where by some accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite understand why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new law amending the Constitution to have an absolute majority, and with much more reason than in the present case. Although we are dealing with the question of amending the Constitution, we have to recollect that it never can get passed into law without the sanction of a majority of the States and people. Now, surely that is safeguard enough. Mr. HOWE: An ordinary majority. Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the amplest power of rejecting a proposal, and in the population you have similar power of rejecting a proposal if it is not in accord with the views of the people.
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And Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the amendment. The most liberal man on earth would not ask for such a proposition as that. The reference to the United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained the same provision, and why should you make an alteration merely for the sake of creating strife and confusion? The Constitution should not be altered to every gust of wind that blows hither and thither. Mr. HOWE: Who blows? The lawyers? Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at the wish of the majority of the people. And
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Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The proposed alterations must be approved by the electors of a majority of the States. The people of the States whose electors approve are also a majority of the Commonwealth. The proposed alteration should, in my 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p202
opinion, be approved by a majority of the States, and also by a majority of the electors who record their votes upon the referendum that may be taken upon the proposed law. That is a very different thing to what is presented here. I need not delay the Committee, because the difference will be seen at once. I have an amendment to the effect that the proposed alteration should be approved by the electors of a majority of the States and by a majority of the electors who vote. Mr. BARTON: That would not secure a majority of the Commonwealth. Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes would override the votes of another large colony which had joined with one of the small colonies, notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed alteration. And Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very fair one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in South Australia at present there is a different franchise from that obtaining in any other portion of the Australian continent, and the double voting power in that colony and in any which follow its example would be certainly unfair to the remaining States. If the franchise were uniform I do not think that the more populous States should have their abstinence from voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll. This plan would not enable a proposal to be carried unless the States in the majority were also the most populous States of the group. It is right to require a majority of the States as States. But why should you require that the people of the States whose electors approve of the alteration should also contain a majority of the people of the Commonwealth? One can conceive that if you have one State much outstripping the others in population, although You might have practically all the other States, except perhaps one small one, in favor of the proposed reform, and although a majority of those who went to the poll were in favor of the proposed reform, the population in the oustanding State would be so numerous that the majority of the States would not include a majority of the Commonwealth. The amendment would be defeated solely by the abstinence from voting of that very large State. And Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the agreement. And Mr. KINGSTON:
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If you get two things, namely, a majority of the State electors who vote on the subject and a majority also of the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to require. And Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands is one which we cannot accept. That is the one which proposes first that there should be a majority of the States, and then a majority of the electors voting If we have five States joined together, of which one has female suffrage, then the electors count for double those of the other States. Then, in the case of a State which has the one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way out of the difficulty, I think we had better adhere to the proposal in the Bill. And Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like to know from Mr. Barton if he means that it should not become law without the consent of the electors of the State. There is no provision for taking a poll.
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Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of the electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of the people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority. Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member to say so. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p203
Again; It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll.
Again; and also by a majority of the electors who record their votes upon the referendum that may be taken upon the proposed law. Again; Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the agreement.
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It refers to who record their votes and not who are registered/enrolled, as political liberty ensures the right to abstain from voting. Do not Members of Parliament themselves use this right to abstain from voting? 15
Mr. DEAKIN: The sub-section reads: But an alteration by which the proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives, is diminished, shall not become law without the consent of the electors of that State.
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This underlines that while Section 128 provides for the manner in which a Commonwealth of Australia referendum is to be held it does however not deal with how State referendum must be held regarding the referral of powers , the diminishing of representatives in the Federal parliament, etc. nevertheless, as this documents sets out also the Commonwealth Powers (Industrial Relations) Act 1996 is not constitutionally valid as it never had the approval by a State referendum and neither did the Victorian parliament to make it a permanent reference of legislative powers within the ambit of Subsection 51(xxxvii) of the Constitution. Likewise the Victorian Parliament had neither any State referendum approval to support the purported Australia Act 1986. The High Court of Australia, cannot, as it did in Sue v Hill make a political conclusion/decision but is bound to determine matters on legal facts before the Court. It has no constitutional position to assume some transformation of the Commonwealth of Australia without even the approval of the electors by way of a Section 128 referendum, and the fact that the judges themselves acknowledged that there was no decisive issue as a legislative action that could even determine when this purported transformation occurred then the Australia Act 1986 is and remains to be ULTRA VIRES. This document provides various quotations in support of this also.
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Mr. DEAKIN: I trust the clause will not be passed without some little further consideration. The proposition of the hon. member is one which I should have made myself, or, rather, which I was considering, but for the obvious objection to me that it fulfils too much the idea of the hon. member, Mr. Donaldson, of making reform almost impossible. I take it that one of the first principles of the Constitution is that we present it to the several colonies, not as a complete constitution, but as one which they can make complete; not as a constitution necessarily adapted to their needs and desires, but one which they can themselves adapt to those needs and desires. The amendment of the hon. member, Mr. Playford, is fair, and the only possible objection that can be raised against it is that it makes the carrying of amendments in the constitution extremely difficult. But the question is whether that is not desirable in order that the amendments that are carried may be equitable. The proposal that was carried in the Constitutional Committee, and commended to the Convention, was, that first a majority of the states, and then of the whole of the people, be required before any amendment be carried. The matter ought not to be lightly passed over, nor should there be an acceptance or a rejection of the clause without debate. Mr. GILLIES: There is some misapprehension about this matter. It is said that there shall be a majority of the states, and then of the people; but in the house of representatives there is a majority of the people.
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Mr. MUNRO: No. Representatives very often vote against their promises. We want to refer the question to the people! And Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
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Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do? Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable? Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance. What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South Australia. Even in connexion with the question of rivers some point might arise that might concern two or three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. I will now take the points Mr. Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary money to give effect to the legislation. Again; That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state.
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And Mr. ISAACS (Victoria).Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some law; not to be of universal application throughout the Commonwealth , but to affect it and that other state alone, should be passed, power should be given in some such clause as this to ask the Federal Parliament to enact that what both states desire shall be of common application to them.
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Clearly, the Australia Act 1986 being a common matter in respect of every state fell outside the provisions of Subsection 51(xxxvii)! END QUOTE Chapter 022A Failure of the case As the Framers of the Constitution made clear:
. HANSARD 5-3-1891 Constitution Convention Debates QUOTE Mr. MUNRO: We have come here to frame a constitution, and the instructions that were given to us, I am happy to say, are very clearly laid down by the hon. member, Mr. Baker, in the book which he was good enough to distribute amongst us. He puts it in this form: That it is desirable there should be a union of the Australian colonies. That is one of the principles that has already been settled by all our parliaments. Second, that such union should be an early one-that is, that we should remove all difficulties in the way in order that the union should take place at as early a date as possible. Third, that it should be under the Crown. Now, I am quite sure that is one of the most important conditions of all with which we have to deal-that the union that is to take place shall be a union under the Crown. Fourth, that it should be under one legislative and executive government. That also is laid down by our various parliaments. END QUOTE . HANSARD 17-4-1897 Constitution Convention QUOTE Mr. DEAKIN: They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. END QUOTE . HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS:
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Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution. When once that Constitution is framed we cannot get behind it. END QUOTE . HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.The relations between the parties are determined by the contract in the place where it occurs. END QUOTE And HANSARD 27-1-1898 Constitution Convention Debates QUOTE Sir EDWARD BRADDON (Tasmania).We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states. END QUOTE And HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made. END QUOTE And HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. END QUOTE . . HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen. Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. [start page 192]
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END QUOTE . HANSARD 27-1-1898 Constitution Convention Debates QUOTE Sir JOHN DOWNER.The people of the various states make their own contracts amongst themselves, and if in course of their contractual relations disagreements arise, and the state chooses to legislate in respect of the subject-matter of them, it can do so. END QUOTE . Hansard 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.-Why should you interfere with the laws in the different colonies affecting the relations of masters and servants, which are purely a matter of domestic legislation? Why should you hand over that purely state function to the federal authority?
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END QUOTE And Hansard 27-1-1898 Constitution Convention Debates QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p206
Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do not want to hand over to the Federal Parliament too many of these difficulties. This, in my view, should be solved by the local authorities themselves. They are the people to deal with their own questions of industrialism. I do not want to enter into a discussion as to the modes of carrying out this proposal; that will be a matter for the Federal Parliament if we decide to introduce this power. But I will put to my honorable friend what is a practical question in connexion with this power. Who is to decide as to when an industrial dispute extends beyond the limits of a state? Who is to decide when a dispute originating in South Australia enters into the colony of Victoria, so that Victoria shall be put under some kind of martial law? Mr. ISAACS.-It is a question of fact, like anything else.
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END QUOTE And Hansard 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen. Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. END QUOTE . HANSARD 31-1-1898 Constitution Convention Debates QUOTE Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: END QUOTE
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The fact that the State of Victoria purportedly handed to the Commonwealth industrial legislative powers cannot make is constitutionally valid.
Hansard 6-3-1891 Constitution Convention Debates QUOTE Mr. THYNNE: I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
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One of the characteristics of a federation is that the law of the constitution must be either legally immutable or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution. END QUOTE . Hansard 6-3-1891 Constitution Convention Debates QUOTE Mr. THYNNE: The constitution of this federation will not be charged with the duty of resisting privileged classes, for the whole power will be vested in the people themselves. They are the complete legislative power of the whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal constitution which we are proposing to establish, and in the next place will come the legislative powers of the several colonies. The people will be the authority above and beyond the separate legislatures , and the royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be practically vested in them. They will exercise the sovereignty of the states, they will be charged with the full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies that will be in existence concurrently the necessary powers for their proper management and existence. Each assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of such authority. END QUOTE . 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p207
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Hansard 18-3-1891 Constitution Convention Debates QUOTE Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution No. 5:-
The inhabitants of each of the states of federated Australasia ought to be allowed to choose, and if they see fit from time to time to vary, the form of state government under which they desire to live. Provision should therefore be made in the federal constitution which will [start page 478] enable the people of each state to adopt by the vote of the majority of voters, their own form of state constitution. Question proposed.
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Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do it with the utmost respect to the distinguished gentleman who has moved it. My point of order is that the resolution goes beyond our instructions. We have been sent here for one object and one object only, and that is, to prepare a scheme for the framing of a federal constitution. Anything outside of these prescribed words cannot be dealt with under the commission in virtue of which we have come here. END QUOTE And Hansard 18-3-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: I think we have nothing whatever to do with deciding the details of the state constitutions. On the other hand, I think it appertains to the functions of this Convention to decide that the power of framing a constitution shall be in the hands of the several states. At present the legislatures of the various colonies can only be altered with the consent of the Imperial Government. Is it intended that that shall remain? When we have a federated Australasia, in which we have state legislatures and a federal legislature, is it intended that the state legislatures shall have the power of altering their constitutions at will or not? From that point of view I think the proposition put forward by the hon. member, Sir George Grey, is decidedly within the powers of the Convention, the power to lay down a general rule, without touching the details of any individual constitution, that the various states should have the power of framing their own constitutions according to the will of the majority of the people of those states. END QUOTE . Again (RE Section 123); Hansard 18-3-1891 Constitution Convention Debates QUOTE Sir GEORGE GREY: Provision should therefore be made in the federal constitution which will [start page 478] enable the people of each state to adopt by the vote of the majority of voters, their own form of state constitution. END QUOTE HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament, you bring into existence a powerful judiciary which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the constitution. END QUOTE . Hansard 15-9-1897 Constitution Convention Debates QUOTE The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p208
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subjects on which no question of state rights and state interests could arise except by the merest accident. It is, as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left for all time to be determined in a purely states house, or by a state referendum, when those questions are not state questions-when they ought to be decided, not on state lines, but on national lines, and by a national referendum. END QUOTE . Hansard 20-4-1897 Constitution Convention Debates QUOTE
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Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal Constitution, at any rate, should have anything to hope for from Parliament or Government. Mr. KINGSTON: Hear, hear. Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the same circumstances remain in part; but where you will have a tribunal constantly charged with the maintenance of the Constitution against the inroads which may be attempted to be made upon it by Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected weakness-for we do not know exactly what they are when appointed-which may result, whether consciously or not, in biasing his decisions in favor of movements made by the Parliament which might be dangerous to the Constitution itself. END QUOTE .
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Hansard 12-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE
Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council, as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament?
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Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to be done, I should expose the Drafting Committee to a flood of interrogations . I can only say that what we intend to do is to carry out the decisions of the committee. Of course there are one or two cases in which the [start page 2439] decisions which have been arrived at require a certain amount of interpretation in the light of the debates, and in those cases we shall take what was said, as well as what was put in the Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal my honorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they appear are only in the nature of instructions to the committee, and they will have to be interpreted in the light of statements made by my honorable friend in answer to inquiries by me. That is the course that will be pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will be interpreted in that way.
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Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every one is agreed that this clause is not to be adopted in the form in which it is printed, but is only to be a power of the Parliament, it is not worth while to discuss the question of whether it is [start page 1665] absolutely necessary to put in the words. Where there is a wide difference of opinion, it would be safer to do it. I agree with Mr. Barton that there is no power, because sub-section (37) of clause 52 readsAny matters necessary for or incidental to the carrying into execution of the foregoing powers, or of any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth, or in any department or officer thereof. I venture to say that these are not necessary or incidental to the execution of any powers. The Commonwealth will come into existence under this Constitution plus English law, one of whose principles is that the Queen can do no wrong. That is the foundation on which the Constitution is established. END QUOTE 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p209
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The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168 It appears that the The European Convention for the protection of Human Rights and Fundamental Freedoms (the ECHR) albeit not overriding constitutional law, is complimentary to British (constitution) law, as the Commonwealth of Australia Constitution Act 1900 (UK) is. Therefore, I view that European laws albeit not overriding constitutional provisions and embedded legal principles are and can be applied if not conflicting with constitutional embedded legal principles. As indicated above no State constitutional amendment, such as for the State of Victoria was approved by way of state referendum and hence I view any purported reference of powers from the state of Victoria to the Commonwealth is and remains to be null and void (ULTRA VIRES) including the purported reference of Industrial relations, the purported reference of legislative powers of the Commonwealth Powers (Children Act) 1986 and other such purported references of powers. It should be clear that the states are not to interfere with the judicial independence of the state judiciary and clearly where legislation is such as to remove also judicial powers from a State Court, such as the state Supreme Court, than this is and remains unconstitutional if not approved by way of State Referendum. Likewise so any purported amendment to a State Constitution. In my view a commissioner who is to conduct a Royal Commission must be of a standing that the general public can have confidence in this commissioner. In my view this commissioner has proven as a sitting judge in the High Court of Australia to be bias and failing to adhere to the true meaning and application of the constitution. In my view in the circumstances the commissioner should hand back his commission. Albeit I still maintain the view that the commonwealth may lack the powers to establish a Royal Commission into the building Industry as now created due to the fact that goes beyond the powers of the Commonwealth to do it as is requested within the terms of references.
HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE . HANSARD 9-2-1898 Constitution Convention Debates QUOTE Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament. END QUOTE . HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution we will have to wipe it out." END QUOTE And Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Re Section 96 of the Constitution) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p210
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QUOTE Mr. OCONNOR.In this case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE
5 I will now quote the entire Chapter 022A Failure of the case albeit it was only a part of the entire book and so will not in its entirely set out all relevant issues/matters. 10
INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-112006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)
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QUOTE Chapter 022A Failure of the case Chapter 022A Failure of the case NOTE; Keeping in mind when reading quotations that; COLOURING AND BOLDING/ UNDERLINING OF TEXT THROUGHOUT THIS DOCUMENTS HAS BEEN DONE BY THE AUTHOR TO HIGHLIGHT CERTAIN SECTIONS. (Colouring not available in B&W version) * Gary, do I need to ask if you found any deficiency in the judgments of the High Court of Australia handed down on 14 November 2006 in regard of the Industrial Relations legislation of WorkChoices purportedly being within subsection 51(xx) relating corporations powers? **#** INSPECTOR-RIKATI, as you may have gathered from previous Chapters, there were, so to say, black holes in the judgments that I detected and having read the CALLINAN J judgment I must state from onset that I was pleasantly surprised by the manner His Honour did set out matters, even so I view he omitted to address certain critical issues, His Honour, and I state this term with respect, in my view did attempt to go through extra ordinary length to make his judgment not just readable to lawyers but I view to construct it in a manner, as I have done in my already published books, to make it readable for anyone and avoiding the Reader having to get copies of numerous documents just to discover what His Honour was referring to. He too quotes the precise statement or statements he relies upon and this was for me very pleasing in reading. His Honour also did set out counter arguments, as I tend to do, and by this gives his line of argument to be a more balanced set out rather then, so to say, being one sided. * So your score is? **#** I consider the judgments of CALLINAN J, despite various omissions and some misconceptions, to be worth 8 out of 10 score.
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40 * That high? **#** Well, you have to understand that his considerable set out of matters, far beyond what I had expected but being relevant to his argument, must be taken into account against the omissions and misconceptions. In my view, he is to be regarded as a true constitutionalist, who deplores any abuse of judicial power and appears to me to support the notion that the People are the once who must control by approval or by VETO what, if any, changes are made to the Constitution. I must admit that this was the first ever judgment I am aware of I read of CALLINAN J, albeit his own judgment refers to previous comments he had made in regard of the Constitution Convention Debates, I may add in a positive manner. In my view, the Framers of the Constitution would be proud on how CALLINAN J did argue the case, as while he may have
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omitted certain issues and may have misconceived certain issues, in the end it appears to me his intentions were 100% in the right directions. This is the kind of judge I would like to see to be the Chief Justice of the High Court of Australia. After all I could not doubt his credibility for one moment to pursue what was the intentions of the Framers of the Constitution, and this is what we need in judges who adjudicate at the High Court of Australia, and not what may appear to me some political motivated judges who are somehow coming across to me not the least concerned with what is constitutionally appropriate. * Gee, that is a bit harsh, dont you think?
10 **#** Look, I am not going to hide my views where this disastrous judgment affected millions of people. Can indirectly or indirectly wreck the financial future of many, if not hundreds of thousands then certainly thousands, as they struggle to get out of financial obligations made while they were in a secure financial area now vandalised by the High Court of Australia decision. * You mean vandalised by the Howard IR WorkChoices legislation? **#** No, because the High Court of Australia could have made clear that it would not allow unconstitutional legislation to be permitted to remain in the books, as it finally did with the Cross Vesting Act in the HCA27 of 1999 case Wakim, where I had already for years challenged the validity of this legislation to be applied but Dawson J in 1994 and 1005 pursued the usage of this now declared unconstitutional legislation. In this document I will not quote all documents such as Is your Constitution Safe by Nick Hobson or the document The Constitution is a PERPETUAL LEASE because of the volume of pages, and so the Reader simply has to check the CD version of this book where those documents and others are in their entirety included as Chapters. As such, this document is a limited, indeed very limited document and is not intended and neither must be perceived to set out all matters in their entirety. Some of the issues canvassed in this document are for example (not set out in any order of importance); The High Court of Australia can set aside the judgment of 14-11-2006 upon the basis of the orders having been obtained by fraud. The High Court of Australia erred in law as it failed to give sufficient consideration to all matters relevant to the case. The High Court of Australia erred in law as it gave to much consideration to matters which ought not have been relied upon and/or it failed to appropriately consider those matters in their correct environment, as such having them taken out of context, so to say. The High Court of Australia exceeded its judicial powers by having relied upon authorities (previous decision) which it knew or ought to have known were in blatant violation of constitutional judicial limitations. Thew High Court of * Moment Gary, are you saying that those are legal grounds and not just concocted views without any kind of credible support? 45 **#** For your information, I planned this already in 2004, as my correspondence may indicate of which some has been reproduced bin this document. * But wasnt the Amendment Act regarding WorkChoices not introduced until 2005, so how could you then already have worked on a case a year or so before it eventuated?
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**#** Because I never had any doubt that the Federal government would be heading this way to undermine the federation by its power grab and seeking unification and as such ensured to make records of what I was doing and publish it in previous books as to avoid anyone claiming I just made it up now after the Federal Government won their case. Do not forget that I used the same tactic when having this 5-year litigation against the Federal government lawyers and succeeded in total including that all constitutional issues I had raised were left UNCHALLENGED. While the High Court of Australia in Sue v Hill (Not sitting as a court of law but as Court of Disputed Returns) claimed that progressively over time the Commonwealth of Australia became an independent nation the Framers of the Constitution rather made the following comment.
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not necessary that the Commonwealth itself should have some power for the restriction and the regulation of trade? The words "absolutely free" are infinite in their application, and they seem to me to take away from the Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth.
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What this makes clear is that even the term FREE (section 92 of the Constitution, where in fact there are taxes, in addition of GST being levied. What must be clear is that the word FREE must be interpreted as to the intentions of the Framers of the Constitution as stated in the Hansard records of the Constitution Convention Debates and not be used in modern times of the meaning of the word FREE. Therefore the meaning of Section 92 having to be construed as to the intentions of the Framers of the Constitution then likewise the meaning of subsection 51(xx) of the Constitution likewise shall be construed in the same manner. Meanings to certain constitutional provisions are often discovered in debates about other matters, such as debates regarding subsection 51(i) which also then relate to Section 92, albeit, care must be taken that at the time of the framing of the Constitution they referred to clauses as it was a Bill and it does not become a section until it receives Royal Assent. Also, a clause by various amendments to the Constitution convention bill was going through different numbering stages and generally the now Section 51 was referred to as Clause 52 and the current Section 52 then referred to as Clause 53.
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN.-
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In this Constitution, although much is written much remains unwritten ,
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This underlines that the framers of the Constitution pursued to keep the written text to an absolute minimum to avoid lawyers to play havoc with the Constitution and judges had to interpret the constitutional meanings by researching the Hansard records of the Constitution Convention Debates to discover the true intents of the Framers of the Constitution. As shown below the danger to quote what a judge may have stated AFTER federation is obvious where the very judge refused then to allow the usage of the Hansard records of the Constitution Convention Debates as to show what the judge actually had stated when framing the Constitution. In my view Griffith and Higgins are examples that what they stated after federation may not have been as what they stated while framing the Constitution. As such, I view that where there is a clash of expressions or a difference then what the person stated at the time of framing the Constitution should be regarded as having more validity then being bias as a judge after federation.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p213
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Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us give power to the states to make new laws which will create new difficulties and complications. And Mr. MCMILLAN.-
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I do not want to insert in this Constitution a provision which by implication will show a trend of thought of a certain character, to which I need not further refer. I do not want it to be presumed for one moment that we desire to give to the Federal Parliament the right to interfere in trade disputes and in the ordinary business and commerce of the country. The less the Government has to do with these things the better, and the more clearly it is understood that the Government is not to interfere excepting for the preservation of law and order the sooner these disputes will be likely to end.
This statement underlines that the wording in the ordinary business and commerce of the country. must be deemed to include corporations as unlikely would the meaning of in the ordinary business and commerce of the country. have been intended to exclude corporations. 15 It ought to be considered also that industrial action is not particularly intended to refer to a single employee working for an employer but that more then one employee works for that employer. Hence, it would be more likely to relate to a business that is incorporated then being a business of one employee only existing.
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would enable me to know how ultimately a coach and four may be driven through this Constitution. But I say let those who want limitations propose their insertion in the Bill. I would prefer to leave the main enactment in this clause exactly as it stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they may represent all that can be wanted at any time; but it is just possible that something may be omitted from them something which might derogate from this freedom of trade which we intend to have throughout the Commonwealth, Then, I ask honorable members to consider this: Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutely free, you have to look through this Constitution at the other provisions, which show clearly what is the intention. This is a broad central declaration; the rest you gather from a perusal of other provisions of the Bill. Again; Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutely free, you have to look through this Constitution at the other provisions, which show clearly what is the intention. This is a broad central declaration; the rest you gather from a perusal of other provisions of the Bill.
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As such even trade and commerce remains conditional upon other parts of the constitution. As a self-educated grand master constitutionalist, I have therefore a good understanding about certain constitutional matters and must admit that you displayed a good sense of understanding what federation was about. The quotation above, at least in my view, would have enhanced your argument, and indeed many other simular statements can be found in the Hansard records of the Constitution Convention Debates. The joint judgment referred to;
The question was whether it also was a law with respect to corporations of the kind described in s 51(xx). Griffith CJ, who was in the majority, said[12]: "It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed, extend to matters relating to domestic trade within a State, and the question is whether the power to make laws with respect to 'foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth' extends to the governance and control of such corporations when lawfully engaged in 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p214
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domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them."
However it omitted to use this clarification;

Hansard 6-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should not be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an interference with property and civil rights. Does the hon. member mean that a court of conciliation might direct that the wages of workmen should be raised? Mr. KINGSTON: That is a question of detail! Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle like that, because that might entirely depreciate the value of property in a state, or drive an industry out of a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to get this power for the federal parliament, that we ought to hold fast by the principle that we are not going to interfere with the rights of property in the states.
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20 Again, a shame that none of the judges took any consideration as to the issue that employment of a worker entered into was on the basis of a State contract within the civil rights of a person within State laws where as corporations powers was dealing with registration of corporations legislative powers provided to the Commonwealth of Australia and nothing to do with civil rights contracts. Indeed, as the joint reasons pointed out;
Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel Griffith's response[141] was: "What is important ... is that there should be a uniform law for the recognition of corporations. Some states might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability of members, while another state might not think it worth its while to take so much trouble, having regard to its different circumstances. I think the states may be trusted to stipulate how they will incorporate companies, although we ought to have some general law in regard to their recognition."
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As this reveals, the concern then being addressed was very narrow. Again; is that there should be a uniform law for the recognition of corporations. With my extensive research in the Constitution Convention Debates this was all along my perception, that it was only dealing with registration (for the recognition of corporations) upon a uniform basis as to avoid different State conditions but nothing to do with attempting to interfere with the civil rights of a person to enter in a work contract with an employer. Also, the drafting committee would often deal with matters decided in smaller committees and as such not subject to major debates on record.
HANSARD 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON: I think that every dispute is local to the State in which it originates. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p215
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Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made. Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will be hampered by the varying laws relating to master and servant which may exist in the different colonies. If an industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the general proposition that is put in this amendment, not the language of it, but the general proposition, and if you are to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leave out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it a weapon which might be used according to the dominant majority in the Federal Parliament for the moment in a way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselves of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790] observation made by Mr. Deakin. It would be impossible to say at what time the overflow into the adjoining State begins and ends. If the Federal Parliament is to decideSir EDWARD BRADDON (Tasmania).This amendment does not hand over to the federal power the entire dealing with industrial disputes over the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those disputes. It therefore imposes upon the various states the necessity for having courts of conciliation and arbitration to deal with the matters affecting their states only. That seems to me to be an admission of the principles principle which I think must be admitted in the present circumstances-that anything whatever in the nature of government or administration which can be better dealt with by a state than by the Commonwealth shall be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because his vote if he goes with me will affirm the principle. It surely must be better for the employees that their disputes should be settled by courts which know all the circumstances, which understand the condition of things best, than that they should be settled by possibly a distant tribunal which is ignorant of the environment and particular conditions affecting any industry in any one of the states. We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states. And Sir EDWARD BRADDON (Tasmania).We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states. And Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made.
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Section 109 of the Constitution does provide that where State law is inconsistent with Commonwealth law then Commonwealth law shall provide, however it does not State that Colonial laws likewise are subjected to the same. Therefore State laws that are enacted AFTER federation are subject to subsection 109 but Colonial laws enacted before Federation remain to be valid in law but cannot be amended once the Commonwealth has commenced to legislate upon this matter. There are however serious matters to be considered. Where the High Court of Australia made time and again certain decisions, which based upon those decisions State legislated and now the High Court of Australia suddenly in their, so to say, CRYSTAL BALL saw powers it never saw before, against the body of language used by the Framers of the Constitution to indicate, such as in regard of bounties, that it could continue to do so in regard
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not just of individuals but also regarding corporations where it remained internal matters then one would hold that either the Framers of the Constitution themselves didnt known what they were talking about or it may be held that the Judges of the High Court of Australia dont know what they are talking about with their sudden, so to say, CRYSTAL BALL revelations, then how does this eventuate with the provisions of the Constitution? The first thing is to consider is, that as set out below Section 109 does not invalidate Colonial laws. Therefore within section 107 they are and remain preserved. Section 109 relates to State legislation, which is after federation, whereas Section 107 relates to both Colonial and state legislation. We therefore have to consider that if a State upon the decisions of the High Court of Australia legislated after federation as to amend or repeal such colonial laws to have it party or wholly substituted with State legislation where the state genuinely believed that upon the High Court of Australia decisions and/or so the VETO power used by the electors themselves within section 128 of the Constitution then where the High Court of Australia now reverse its past decisions the States nevertheless are now robbed of their colonial laws because they were amended since federation or that the High Court of Australia will regard it that as the amendment/repeals were subsequently to their , so to say, ill conceived past decisions then the colonial legislation as existing at the time of federation for so far as repealed/ amended must be regarded not to have been so. To do otherwise would rob the States, who may have legislated upon the decisions/finding of the High Court of Australia of their constitutional powers/rights because of the, so to say, ill conceived decisions of the past by the High Court of Australia. Surely, the Framers of the Constitution never intended to do so? Indeed, not to allow the reinstatement of those colonial laws would result that no one could avail himself to the credibility of the High Court of Australia as to its competence to make appropriate judicial decisions without perhaps contemporary political motives as to misguide/misdirect States as to their constitutional powers to get them to act and then later use this action to hold their colonial legislation (because of their State legislative amendments) no longer is valid because of Section 109 where as had the States not gone along to accept the High Court of Australias dec ision it may never have amended/repealed its colonial laws. Indeed, one then can ask, for example, where the State of Victoria is a listed COMPANY on the New York Stock exchange, if then the State, having purportedly amended its own constitution with the Victorian Constitution Act 1975 no longer then can rely upon its own 1975 constitution! Also, if this therefore can unfettered give the Commonwealth of Australia to basically decide every aspect of corporation life of the State Governments and so can nullify the existence of the State government. After all, it cannot be argued that somehow corporations powers found, so to say, in the CRYSTAL BALL does apply to some but not all. Indeed, the Commonwealth legislative powers is bound to be for the whole of the commonwealth and cannot therefore exclude parts of States, being it State government or otherwise. Also, where a State has (if it is validly done so that is) referred legislative power of a State then as the Framers of the Constitution made clear the commonwealth of Australia is to make a special levy against that State for the cost of this legislative powers to be acted upon. After all, why should taxpayers be burdened with the financial cost of running the matters within the referred legislative powers of another State while having to pay for their own as well. The Framers of the Constitution made it clear that the Commonwealth of Australia would then have to provide for a special levy to have the State that referred legislative powers regarding a certain matter pay for this administration. There is another issue that should not be overlooked. We now have ample of companies that are now changing how they conduct their business affairs considering the High Court of Australia, so to say, CRYSTAL BALL found constitutional powers in regard of subsection 51(xx) as it did about the Australia Act 1986. Now, many companies since had altered their arrangements with workers, even sacked them, and if now by
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hindsight the High Court of Australia were to re-consider its position and found that because the, so to say, CRYSTAL BALL was clouded and their tea leaves in their cups were not showing the kind of reading that at the time they had perceived to do in regard of what constitutional powers were about, then where the High Court of Australia then reverses its 14 November 2006 decision regarding the Amendment Act (WorkChoices) and find that subsection 51(xx) is restricted to registration of companies and their conduct as a corporation but not referring to the industrial issues governing how it employs workers there could be a flood of legal actions by workers who then will argue that they were unconstitutionally and illegally robbed of their income. Many companies who may have acted upon the validity of the High Court of Australias decision of 14 November 2006 then could be send broke as the laws they thought no longer applied, and hance reduced wages as permitted by the new purported legislation, turn out to be still legally applicable. Could it be held that therefore during the time the High Court of Australia had its ill-conceived judgment standing that constitutionally the State legislation remained on foot and so remains legally enforceable. If not, could it mean that the High Court of Australia upon ill-conceived decisions can temporary suspend the application of constitutional provisions and later re-instate it? To allow for this would make a mockery of the Constitution as no one could avail himself to what is constitutionally applicable, as it would depend upon the political appointment of judges how they then decide from time to time their cases. The legal implications are enormous with ill-conceived High Court of Australia decisions and for this every Australian (naturalised or not) who have employment in the Commonwealth of Australia is entitled to hold that the High Court of Australia did at the very least a very shoddy job in handing down its 14 November 2006 decision regarding the purported WorkChoices legislation without having first, as I did, extensively researched all related matters governing the matters before the Court. A simple manner to research a particular issue is that a person who has access to the electronic versions of the Hansard records of the Constitution Convention Debates has it on a computer and does the following; The computer operator go to the program search/find and type in the word required to be found in the Hansard records of the Constitution Convention Debates, being it preserved, company, retrospective, British subject, citizenship, etc, etc. Now, technology happens to be that then the computer will in a few minutes list all days on which the Framers of the Constitution during the Constitution convention Debates used the particular word one had in the search. Then one open up a particular page and do the same search/find again and there it comes up time and again. In case judges of the High Court of Australia have a problem to access the internet to get to the Hansard records of the Constitution Convention Debates, it is in fact listed in Chapter 33 of my books on CD/DVD so the Readers can check out the entire debates, and so if I did not take out of context the quotation I relied upon. As I did provide on the day of publication the High Court of Australia with 4 copies and subsequently about 4 weeks later provided another 4 copies then clearly the Court had every opportunity to check out the Hansard records of the Constitution Convention Debates. Considering that Mr Peter Hanks QC for the Commonwealth of Australia stated; The researches of counsel have been unable to find provisions using similar language (not less that or at least a number of days) where the language is as clear and specific as found in ss156(1) and 157.
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Yet despite this thousands upon thousands of usage around the world is found by a simple search on the internet, as I then already established, it appeared to me that the researches employed by lawyers may not master technology and so perhaps neither the internet and as such providing it in Chapter 33 of my books I avoid researches that may be employed by the Court, so to say, having to pull their hair out because of their inability to use the internet, and have it nicely dished up for them. Whatever might or might not be applicable, still judges are appointed specifically to deal with constitutional issues and I view there is no excuse therefore for any judge not to have bothered (through his researches or otherwise) to check out how the Framers of the Constitution used the word company, preservation, retrospective, British subject, factory law, citizen, citizenship, and for that also empire, kingdom, republic, independence, subject of the British crown, constitution, etc, etc.
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The Hon. J.H. CARRUTHERS: Look at sub-clause 25, which says: The service and execution throughout the commonwealth of the civil and criminal process, and judgments of the courts of the states. The Hon. Sir J.W. DOWNER: But it must be in respect of a matter over which the court has jurisdiction. Mr. SYMON: Suppose you change the domicile!
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The Hon. Sir J.W. DOWNER: That will not operate to give jurisdiction. I think that when we have given the most sacred of all relations-the, relation of marriage-over to the commonwealth, and very properly, it follows, as a matter of course, that we must do this. Parental rights-that is all we propose to give to the commonwealth. The commonwealth parliament can make a definition and pass a uniform law. Mr. SYMON: That is incident to the marriage law!
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The Hon. Sir J.W. DOWNER: It comes from the marriage law, and ought to flow as a corollary. It is a corollary as far as marriage is concerned. [start page 1085] The Hon. R.E. O'CONNOR: It would not necessarily follow the law of husband and wife!
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The Hon. Sir J.W. DOWNER: We are only talking about parental rights; that is the right of the parent over the child! The Hon. J.H. CARRUTHERS: If the hon. and learned member is willing to hand over the rights, why not the obligations? The Hon. Sir J.W. DOWNER: If the hon. member would like them added I have no objection; but if the hon. gentleman wants to exclude them, I cannot see that any difficulty need arise. So far as I know, the laws of all the colonies are exactly the same in respect to the matters mentioned here, and there is very little probability of their being any different, so far as parental rights and the custody and guardianship of infants are concerned. We want to prevent the possibility of any difference, that is all, and to give the federal parliament power to legislate on the subject if they please. I can see difficulties that might arise in the enforcement of state laws through the child or infant being taken away from the custody of its parent or guardian, and being out of the jurisdiction of the court of the state in which the parent or guardian resides, and I think it is necessary to have one uniform law on this matter as well as in regard to marriage and divorce. The Hon. J.H. GORDON (South Australia)[3.59]: I think we are quarrelling about terms and not about substance. I believe that the hon. member, Mr. Carruthers, agrees with almost everyone of us that as regards parental rights and the custody and, guardianship of children so far as divorce is concerned, power should be given to the commonwealth; but this clause goes much further and includes the whole region of, parental rights and the custody and guardianship of children. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p219
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The Hon. E. BARTON: Put in the words "and in relation thereto" before "parental rights "! The Hon. J.H. GORDON: That will cover the whole ground. All our acts relating to the custody and guardianship of children have relation to parental rights. Mr. SYMON: Suppose a child is deserted?
The Hon. J.H. GORDON: That suspends the parental custody; but the parental liability remains. I think that the amendment suggested by the hon. and learned member, Mr. Barton, covers the whole ground. The Hon. E. BARTON: I move: That the figures "24" be omitted with a view to the insertion of the words "and in relation thereto."
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This will confine the operation of the subclause to the rights and obligations arising out of divorce suits. The other matters to which attention has been directed will be considered by the Drafting Committee.
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Time and again I notice that the High Court of Australia refers to International law and also British decisions but there is a gross defect in them doing so. As the Framers of the Constitution made clear, time and again, they did not desire to use any particular Constitution but desired to design their own and pick what they considered the best of all Constitution and mix it with a blend of Australian flavour. This is in particularly highlighted in the usage of Subsection 51(xxii) referring to parental rights no other constitution had used. Likewise its intentions with subsection 51(v) and not otherwise was to include whatever would eventuate in future with modern technology in that field, and they made clear they didnt want to follow the USA system of having telecommunication in private hands! Hence the sale of Telstra is and remains unconstitutional and likewise the operations of private telecommunication companies in the Commonwealth of Australia. The High Court of Australia cannot have it both ways, to disregard constitutional provisions where it is against the conduct of the Federal Government but enforce it where it is in favour of the Federal Government. I might not be a lawyer but no one could argue that throughout my books that are published I have not shown a display of law enforcement being it what is constitutionally appropriate. And, yet I find that the many of the decisions of the High Court of Australia are, so to say, stinking like rotten eggs rather then having the flavour of JUSTICE. Whatever, so to say, the Court is cooking up I think they need to have an health inspector checking their facilities as it is heavily contaminated whatever seems to come out of their kitchen that spoils the appetite of those who are to consume it, except for those who lack the taste for JUSTICE. One can go to a kitchen and have a meal prepared in the utmost crisp environment and have the meal decorated in the most attractive manner yet when it is served at the table the person presenting it could stink a mile against the wind, so to say, and no matter what effort was done to make up the meal it all might in the end been a waste of time and effort. Therefore, it is not necessary that researched of the Court might not have done their utmost pest to assist a relevant judge, but it might be that the bias of a judge may have resulted that presenting the judgment excluded many thing that the researches may have prepared but were never in the end included. As such the judge may have contaminated what was prepared to be presented. Sure, ultimately this is the right of a judge to decide what is in and what is out but surely then it would be absurd for a person like Mr. Peter Hanks QC to blame his researches for something he himself could have established within a few minutes to be correct or not. all he had to do was to type in a search shall be not less than and he would have found thousands upon thousands of references. If I as an unrepresented party can manage to get legal matters sorted out in that regard then surely it is an absurdity to accept that a Queens Counsellor can excuse himself by blaming the
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researches, yet, when this came before the High Court of Australia it was argued by Mr Peter Hanks QC that it was not relevant. To me it is very relevant if a lawyer deceives the Court as he did in many other ways. For example, checking the transcript of the hearing, it is noted that Mr Peter Hanks QC in his argument in point 22 and 22.1 of the OUTLINE stated the following;
22 QUOTE In Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 445, Gibbs J referred to the general rule that not less than so many days refers to clear days unless the context or the statutory intention reveals a contrary intention. END QUOTE
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His quotation is again false and misleading! Mr Peter Hanks QC quoted of the judgment the following;
QUOTE
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unless the context or the statutory intention reveals a contrary intention

END QUOTE
This ought to be;

QUOTE
unless the context or the subject matter reveals a contrary intention 20

END QUOTE
Clearly, that is a gross deception. In legal terms there can be a significant difference in a case for the Court to deal with a statutory intention versus subject matter. 25 Mr Peter Hanks QC stated to the Court (7 November 2001);
The researches of counsel have been unable to find provisions using simular language (not less that or at least a number of days) where the language is as clear and specific as found in ss156(1) and 157.
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Thousands upon thousands of Internet references can be found upon a search shall not be less than or shall not be less that. As such this statement by Mr. Peter Hanks QC for the Australian Electoral Commission was a fraudulent statement. Likewise other statements were found by me to be deceptive and/or misleading. We also have the fact that Counsel Mr Peter Hanks QC argued the authority of the
ASSOCIATED DOMINIONS ASSURANCE SOCIETY PTY. LTD. v. BALMFORD (1950) 81 CLR 161
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What counsel did however was to make a false and misleading presentation of what the case really was on about. As the authority stated: The notice actually served did not "specify" such a period: it "specified" a period which was too short by one day, and the Acts Interpretation Act does not affect this position.
45 Mr Peter Hank QC didnt argue that the authority wasnt relevant, to the contrary he argued its relevance only by misrepresenting how it applied and what the authority really was on about. As such, it had nothing to do with within as Mr Peter Hanks QC argued as clearly the usage within was in a different context and not at all as Mr Peter Hanks QC sought to imply and did imply. It ought to be considered a serious matter that a barrister employs these kind of tactics, indeed deceptive tactics, but it seems the Australian Electoral Commissioner does not seem to worry about the means as long as it achieves his end results. Because Aboriginal affairs gives me an opportunity to set out better matters regarding the usage of the various legislative powers of the Commonwealth of Australia I will use this to some
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extend and then bring it back to industrial relations, and as such the Reader must remain spell bound, so to say, to follow my reasoning. 5
Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir SAMUEL GRIFFITH: One of them is to deal with the affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.
10 This related to Subsection 51(xxvi) as to race legislation. The amendment in the con-job referendum in 1967 to delete the reference to Aboriginals in subsection 51(xxvi) with its subsequent legislation had the effect; 15
Hansard, 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787] Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether the honorable member intends that. There is power by law to regulate the people of any race requiring special laws. There may be some purely regulative law passed, not imposing any special restriction on any person of that kind who may be a subject of the Queen. That regulation, if it were of the mildest character, under this definition, would deprive him of his rights.
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The Racial Discrimination Act 1975 by this has the effect that all persons in the Commonwealth of Australia by this lost their citizenship/franchise! See also Chapter 021H Aboriginal constitutional issue. What we have therefore is that, at least to me, it appears electors are conned in voting in a referendum unaware to the true constitutional construction of the application of certain constitutional provisions, and if anything the 14 November 2006 judgement regarding the WorkChoices legislation underlines that even the judges themselves over more then one hundred years did not appear to understand/comprehend how subsection 51(xx) really applied. Yet, despite this admission the judges nevertheless do not even bother to check out what is recorded in the Hansard records of the Constitution Convention Debates as to the usage of the terms so important to the case being it company factory law State sovereign rights etc. At the very least one would have expected that the judges concerned claiming that it was done for so long wrong should be extra careful for themselves not to compound problems by ignoring to first elicit from the Hansard records of the Constitution Convention Debates what really was intended with the term corporations and how it was considered. Numerous references were made by the Framers of the Constitution that the internal workings of a State was to remain with the State and as such it is evidently clear that the corporations powers within subsection 51(xx) was never to be more then the general registration and conduct of corporations as a corporation in management style and not at all involve the nots and bolts, so to say, of how shop floor workers earn their crust. Indeed, the fact that the Framers of the Constitution stated that the States retained their factory laws and that disputes were to be considered upon State contracts, etc., itself underlines that subsection 51(xx) was limited to the organization of companies and had nothing to do with how workers were employed. Indeed, the fact that the Commonwealth of Australia had no constitutional powers to deal with religious aspects in itself underlines that State laws were the only once to prevail. If in time Australia turn into some other religion as its general usage and Christian public holidays become unsuitable then it would be beyond the powers of the Federal government to interfere with religious public holidays where as the States still can legislate where it comes to religion but on the other hand by the Commonwealth of Australia having invoked legislative powers cannot do so because Section 51 does not allow the States to legislate upon matters once the Commonwealth of Australia has
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commenced to do so. It means, that neither the States or the Commonwealth of Australia can legislate any further in regard of religious holidays, an total absurdity. We then have a vacuum of legislative powers! Neither can it be argued that the Commonwealth of Australia somehow can legislate as to religion under its subsection 51(xx) powers as to allow this vandalise the intentions of the Framers of the Constitution and the constitutional concept embodied in this new Magna Carta. What will however eventuate is, that where it comes to workers who do not work for a corporation they can benefit of State legislative provisions where as workers performing the same job but their employer happens to become a corporation then they have a different level of standards and we will have for this two classes of employment. Any employer could upon his wimps destroy the security of a worker by switching to another system and this would workers in a precious position that their contracts, such as purchasing a residence, is jeopardized. Such industrial vandalism caused by the High Court of Australia decision cannot be allowed to stand. It is no more then providing for corporate greed and not at all considering the sovereign rights of the States to manage their own internal affairs as they desire. Irony is that in this case I cannot specifically blame the current Federal Government for its ill conceived WorkChoices legislation as I view they are entitled to legislate upon what they deem constitutionally permissible being it that I hold each and every member of parliament to be held accountable as a representative of the constituency for failing to appropriately care for their constitutional rights. As I have indicated in the past published books, the constitutional set up in the Commonwealth of Australia is totally different then that which applies in the United Kingdom. A clear example is that the so called Henry the VIII powers to amend legislation by the government of the Day does not exist in the Commonwealth of Australia. Also, while a Minister of State in the UK has unlimited powers within his portfolio, to the contrary in the Commonwealth of Australia a Minister is bound within what is for the peace, order, and good government and so are the powers of the Federal Parliament limited to this. The British parliament did not have a constitution that dictated the usage of Ministerial powers and indeed parliamentarian powers where as the Commonwealth of Australia can only operate within the peace, order, and good government and also that it must follow the dictated regime that the parliament legislate and the Federal government cannot enforce any self dreamed up amendments as like the Henry the VIII powers as it is prohibited in the constitutional structure of the Commonwealth of Australia. Hence the government exclusion of islands of Migration territory was unconstitutional regardless if the Federal parliament later legislated for this to be part of legislation and the Federal Parliament in fact unconstitutionally provided for the exclusion of any parts of the Commonwealth of Australia for migration purposes is and remain unconstitutional and as such also any action taken against refugees on the basis of the purported exclusion. It is the High Court of Australia, as I view it, in its corrupted decision that is really to be blamed. Time and again it has allowed the Commonwealth of Australia to infringe upon constitutional prohibitions and limits disregarding totally what the Framers of the Constitution intended. The Pacific Solution, the ADMINISTRATIVE DETENTION and numerous other decisions to me reek, if not stink, to political manoeuvring by the Court to undermine the proper application of constitutional powers and limitations. Now it appears we going to have a CARIBBEAN decision in human trading between the Commonwealth of Australia and the USA. In my view so that if any further refugees arrive from Papua New Guinea then they be transported to the USA as not to embarrass the Indonesians. Just that I view this is not a power for the Commonwealth of Australia to deal in human bodies trading, as while it may have constitutional powers to deal with immigration, migration and aliens nothing can justify a human trade. It is akin to the slave trade only now using a different terminology. I doubt the High Court of Australia will bother to address this issue, even if an application is made, as I only have to look about my
section 75(v) matters how it refused those time and again, disregarding obviously the constitutional issues and by this allowing the slaughter of human beings to continue. 5
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated, except to a certain limited extent, is one of the most desirable powers to place in the Constitution
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As the Constitution makes clear the Commonwealth of Australia can only legislate as to the whole of the Commonwealth and not exclude any part of it, such as is done under the Migration Zone as to purportedly exercise parts of Australia from the migration zone. Regretfully, we also have found that the High Court of Australia justified the government of the day to invoke the so called Henry the VIII powers to make amendments to legislation and then use it and have it enforced without first having been passed through both Houses of Parliament and given Royal Assent. It would be sheer impossible to quote in this document all relevant quotations from the Hansard records of the Constitution Convention Debates as this would cause this document to run in several thousands of pages, safe to say that Chapter 33 of the book on CD contains all records and the Reader can for himself /herself check it out. Whatever the British Parliament may do and whatever the Privy Council may have ruled in certain cases cannot be adapted at all times to the Commonwealth of Australia as there is a total different constitutional set up. The Commonwealth of Australia is not the overall governing body over the States, because many legislative powers of the States are not existing in the Commonwealth of Australia. There is no such thing as the Australian troops to enter a State to break a strike as to do so would be unconstitutional. Again There is no such thing as the Australian troops to enter a State to break a strike as to do so would be unconstitutional. There is no such thing as a soldier standing behind a citizen and going to shoot a bullet through an electors head merely for refusing to comply with Section 245 of the Commonwealth electoral Act 1918 refusing to vote, as I did, as it would be beyond constitutional powers to do so, and if any evidence is needed why such obnoxious conduct could never be tolerated is in the fact that on 19 July 2006 I succeeded in the County Court of Victoria to prove that voting is not constitutionally permitted to be compulsory. As the Framers of the Constitution made clear, any alleged breach of Commonwealth law was to be dealt with by the Commonwealth by having the alleged offender formally charged (accused) and placed before the relevant State Court and the person be given a judicial decision as to the persons innocence or guilt. I am not the least interested what Quick & Garran stated in regard of certain issues, as their own motivations may have distorted what was in fact really applicable and I rather rely upon the Hansard records of the Constitution Convention Debates as to the true intentions of the Framers of the Constitution. Domestic violence was not then meaning a dispute between husband and wife but was then referring to a civil unrest involving violence where then the Governor of the State could issue a proclamation for Australian troops to restore order. As such, it had to be qualified within the meaning of the term domestic violence as it then was referred to. A peaceful protest in industrial matters is not and cannot be regarded constituting domestic violence. It might be injurious to others, in preventing others to get to work or otherwise being obstructed to perform their normal daily routines but it is not to be considered domestic violence in the meaning of the Framers of the Constitution.
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It is not that somehow soldiers are marching into the homes to point guns upon innocent children, because their mummy and daddy have an altercation. Sure, we have the Australian Federal Police already bashing down peoples front doors and pointing weapons upon children and others in raids within States, and so unconstitutionally, but this does not make it lawful. It is, as I view it, because we have an utter corrupt High Court of Australia that refuses to consider all matters that are relevant to interpretation of the Constitution that so much is being done unconstitutionally.
I member has said-that it is not desired to raise up a great standing army for our defence from imaginary enemies.
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Well, we have the purported WAR AGAINST TERROR where we have imaginary enemies and where innocent people are rounded up and denied their constitutional rights because where the High Court of Australia (obviously then not using the Hansard records of the Constitution Convention Debates) in 1943 purported that the Commonwealth can suspend civil rights in time of war then all that is needed is to purport there is some kind of war against imaginary enemies.
"Naturally, the common people don't want war, but after all, it is the leaders of a country who determine the policy, and it is always a simple matter to drag people along whether it is a democracy, or a facist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they're being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country."
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Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2. 25 As the Framers of the Constitution made clear regarding the States; Our own police are quite sufficient for the preservation of order within. 30 Any notion of ASIO and/or Federal Police (under whatever title) roaming around with staff of the immigration Department to arrest people, like Vivian Alvarez Solon and many others is an absolute lunacy. In every case the Australian Federal police removes a person from State coil without having first obtained a order of a State Court (such as the Bakhtiyari children) then that is no less kidnapping as it would if any other stranger would have done so. With all due respect to His Honour CALLINAN J, I view about defence power, that subsection 51(v) does no more but give the Commonwealth of Australia legislative powers as to regulate armed forces, not to run an army. Section 69 transferred naval and military forces from the colonies to the Commonwealth of Australia and then as any other employer the Commonwealth of Australia is entitled to make laws and regulations for its employees. Section 51(xxxv) in that regard really would not play any part in the issue as the Commonwealth of Australia as the employer has existing powers to determine the wages and conditions of those employs, as such also the superannuation of its workers, and this was made very clear by the Framers of the Constitution when they debates the transfer of personnel from the colonies to the Commonwealth of Australia that each could have its own superannuation system and neither was compulsory upon the other. If subsection (xx) was the all out powers as the High Court of Australia now purports it to be then it basically states that the Framers of the Constitution were wrong in what they stated and what their intentions were in regard of States having their own superannuation, as the Commonwealth have this power only, alternatively it must concede that the Commonwealth of Australia has no constitutional legislative powers to dictate superannuation to anyone not being in employment with the Commonwealth of Australia at it remains to be an internal State affair.
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As I have set out below also the various legislative powers the Commonwealth of Australia has, it must be clear that if the Commonwealth of Australia implements a general power as it purports to do in regard of subsection 51(xx) relating to industrial relations matters then it own position as an employer is no longer safe and its own workforce is as much then bound by the same general legislative powers used in subsection 51(xx) as is any other employee. This, also means that any special provisions the Commonwealth of Australia may have provided to its own military staff in regulations or laws may if in conflict with the general legislative powers use of legislation in the WorkChoices provisions now have to go. Neither can the Commonwealth of Australia apply any taxation exclusion for any of its own employees, soldiers or not, as this would be in breach of constitutional provisions that taxation must be for the whole of the Commonwealth and the fact that the Commonwealth of Australia as Executive government employs people cannot give the Federal parliament any additional powers implied or otherwise prohibited in the Constitution Hence, I view the Commonwealth of Australia might just discover that they might have opened a Pandora Box, or otherwise to say, a can of worms, they wish they had never done. As I understand it the High Court of Australia (Unable to verify precisely the case as I am locked out of accessing High Court of Australia files under the edu system seemingly as to prevent me to expose more of the rot despite this goes contrary to the principle embedded in section 117 of the Constitution) has handed down a judgment that staff of Australia Post can disregard State laws and its delivery personal can drive their motor bikes or other vehicles upon footpaths, regardless of the safety of citizens. Constitutionally, the Commonwealth of Australia can make laws as to postal services, its operations, but nothing in that legislative powers allows it to override State internal laws for the good of the general community of a State where it does not interfere with the normal exercise of commonwealth services. The fact that Australia post desires to have a person delivering mail on a motor bike itself does not interfere with State laws if the person observes State laws. After all, the commonwealth of Australia could not authorise unlicensed persons to drive a motor vehicle in a State as it would be beyond its powers to do so. Likewise it could not override State traffic laws and permit Australian Post workers to drive onto footpaths as the perils of pedestrians and others as it has nothing to do with service of the commonwealth, as within the road Traffic provisions the delivery service can be maintained. What it is about is that the Commonwealth desires to ignore road rules for its own financial interest and not for any other purpose. Like how it has closed down government book stores and now one doesnt known where to get a copy of a Gazette and so neither enable to ascertain what new laws are about. Publication, in my view, therefore does not occur as no one can claim that hiding publications without appropriate facilities for a person to obtain publications is not a publication at all. Watson v Lee is a clear example of this. What we have therefore is that if within the State road rules commonwealth officers are not hindered at all to perform the delivery service then it is in my total absurdity for the High court of Australia to allow the commonwealth nevertheless ignore the State rights to govern its internal structure merely because of profit issues. It must also be kept in mind that Australia Post as was enacted at Federation no longer exist. Constitutionally Section 114 denies the Commonwealth to raise any taxes upon commonwealth properties. As former Telstra sites are flogged of to private purchasers without a change of jurisdiction from Federal to State jurisdiction (consider the POINT NEPEAN dilemma) then technically local councils cannot charge rates upon properties that were purchases from Telstra where they constitutionally that is remain to be Commonwealth Territories. While the commonwealth may have allowed change of titles from itself to the private purchaser, in real terms did never occurred as the sovereign of the property for all purposes remains to be the Commonwealth of Australia. This is a very highly technical question and has already been
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extensively canvassed by me in previous published books and as such I am not going to occupy further pages to state the case again, other then to say that where the Commonwealth of Australia has flogged of most of the Post offices, then those employed are not in employment of Australian Post but in employment of the owners of the post offices. Indeed, when I contact Australia Post of mail not being delivered or having been delivered on wrong addresses I am constantly advised that I must take it up with the private owners of the local post office as it is out of their hands. As such, the mail delivery is done by people employed, or subcontracted by those owning the Post office but under the umbrella of Australia Post. It would therefore be a gross abuse of power by the Commonwealth of Australia to allow Australia Post under this cover having people driving their bikes on footpaths to the peril of the pedestrians and being to terrorise other road users. As like Australia Post offices and Telstra properties, as they are transferred to the Commonwealth of Australia within Section 69 of the Constitution which does not have until the Parliament otherwise provides then the flogging of out our crown jewels by the Commonwealth of Australia is unconstitutional. The commonwealth of Australia can legislate to the manner Australia Post and Telstra was to operate where it owned the properties, but no one could sensibly argue that subsection 51(v) powers were handed to the Commonwealth of Australia merely nilly willy, as it was specifically done to ensure that the Commonwealth would have all legislative powers to aid its ownership of the combined postal and telecommunication services. I have no doubt that had the Framers of the Constitution not provided for the postal and telecommunications to be handed over to the federation subsection 51(v) would never have been included as it would have interfered with the State internal processes. It therefore has resulted that any telecommunication powers other wise possessed by the Commonwealth of Australia is a spend force where it sold, and so unconstitutionally, Telstra and a large part of Australia Post. Neither do I accept that the Commonwealth of Australia can have its own future funds being it for future superannuation payments or otherwise, as it goes against the provisions of Section 94 of the Constitution. The Commonwealth of Australia must hand over any monies it has not used for Commonwealth purposes. * Moment Gary, how then does it provide for superannuation of its workforce?
30 **#** Not a slush fund, I can assure you. In fact there was a news bulletin that the Department of Taxation is unable to collect superannuations contributions employers have to pay in the hundreds of millions of dollars and that some employers go broke without having paid a cent in the superannuation funds, regardless what they deducted from their employees wages. 35 * Can that be right? **#** Of course not and this may underline it is all up the creek, so to say. Again, I blame the High Court of Australia for this as if it had all along stuck to the way the Framers of the Constitution intended constitutional provisions to be applied we may never have ended in this constitutional legal mess. Lets look at the superannuation issue regarding federal employees and considering that superannuation payments, at least where constitutionally permissible, are to be part of the Appropriation Bills. As such, if any employee is entitled to superannuation then the Commonwealth of Australia must pay this monies into a employees nominated fund/account, by this the monies have been spend for constitutional purposes and as such neither can be deemed to be some surplus. Only the employee then can access that money subject to legislative provisions, which apply to anyone else in the country. After all the Commonwealth of Australia as an employer cannot have any greater legislative power then any other employer. While I dispute the Commonwealth of Australia to have any general legislative powers to dictate any business to pay 9% superannuation contribution or something like that, as it certainly does not fall under the provisions of subsection 512(xxiii) dealing with invalid pensions and old age pensions, if for purpose of argument we were to ignore this for a moment then the Commonwealth of Australia
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cannot have different powers of legislation as the general legislative powers overrule any employers rights. As such, what is good for the Goose is good for the Gander, so to say. If a private employer if obligated to pay to the Department of Taxation for collection for superannuation funds then the Commonwealth of Australia would likewise be obligated to do so and cannot itself have a slush funds under the title of being a future funds. As any moneys collected by the Department for Taxation cannot be spend but by Appropriation Bill being passed by the Federal Parliament, and in fact taxation laws relating to deductions are in real terms also Appropriation laws, then if the Department of Taxation were to have the monies in general revenue it clearly is part of this and cannot be paid out to anyone but by the parliament passing Appropriation lBills. It would obviously be absurd for employees having to await for the Federal parliament to pass special legislation as an Appropriation Bill for the person to be able to draw his own earned monies and essential are his, and for this also I view that the Department of Taxation (Tax Department) has no business to deal with superannuation monies. One of my sons is having extra monies from his salary paid into a superannuation funds, yet, for all he knows the employer may never pay this money to a appropriate body and my son could find out years later that the moneys were never paid and the employer, so to say, went broke having used up his monies. Now, what kind of s system is this really, where the Commonwealth of Australia makes all kinds of devious laws but does not appropriately supervise matters yet through the High Court of Australia seeks to gain more and more powers. As a child I used to have this puppet on a string and when now someone refers to the High Court of Australia It reminds me always to this puppet on a string I had as a child. Anyhow, getting back to the superannuation issue, the commonwealth of Australia, as any other employer has the right to make regulations for its employees but it cannot invoke powers of the Federal Parliament to provide for laws that override or otherwise undermines general law (for the whole of the Commonwealth) application. The Commonwealth of Australia must by Section 94 of the Constitution return any surplus to the States and cannot have any future funds. What it can do however is to pay any due superannuation payment into the respective superannuation accounts of the relevant employees and it no longer holds the purse string of the superannuation entitlements and as such the money does not float around in some future funds and neither, so to say, can be gambled away by some treasure who desires to make a gambling on the stock exchange and as I understood it lost about 5 billion dollars. * Excuse me for sounding ignorant, but could not the monies be put into Government bonds and so make it better for the commonwealth of Australia to have monies available?
35 **#** That is something I have already dealt with in past published books. I see no problem with a superfund, if so duly authorised by the account holders to invest monies into government bonds, but that is a total different issue. All moneys in a future funds must be returned to the State without delay unless they are paid into accounts by special Appropriation laws enacted, and monies that are a residue of past years cannot be paid into a superannuation fund without Appropriation Bill passed for this as they were not spend when they had to. To be honest there are numerous other constitutional issues I could cover but the best thing Readers can do is to read the books that have been published. I think we better now get back to the issue of law enforcement of subsection 51(vi). The maintenance of Commonwealth law (subsection 51(vi) is provided for but not that of the maintenance of State law! The subsection 51(v) therefore must be interpreted in its proper perspective and not be perceived that soldiers can invade the streets in the States and have tanks being commandeered upon trade unionist or for that matter upon the individuals as in fact the Framers of the Constitution very much outlined what was to be intended with these powers and its usage of it as some quotes below shows. Granted, for purpose of defence powers the Framer of the Constitution held that then the military could commandeer trains or other form of transport as to be able to move its soldiers and equipment but that is
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totally different then what the High Court of Australia in its 1943 decision seems to make out of it. 5
QUOTE 809 It is sometimes forgotten that at federation the colonies maintained their own defence forces. Section 51(vi) refers, in terms, to the naval and military defence of the Commonwealth "and of the several States", making clear that defence is to be exclusively a Commonwealth activity. There is something else however that needs to be noted about this provision. It is that, literally, that is textually exclusively, it appears to contemplate the use of the military forces of the Commonwealth to execute and maintain the laws of the Commonwealth[1021], at any time and in any circumstances. Elsewhere I refer [1022] to statements by judges of this Court to the effect that constitutional provisions should be construed with "all the generality which the words admit". The use of military forces, the imposition in effect of martial law in a democracy, except perhaps in times of external threat or civil insurrection, is anathema to democracy itself, and yet, if s 51(vi) is to be construed too generally and textually or literally, and without reference to other provisions of the Constitution, including perhaps that all of the powers are to be exercised to make laws for the good (democratic) government of the Commonwealth, that result might conceivably follow. 810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria[1023] for a proposition that because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the corporations power be. Pidoto was decided in 1943 when Australia was still engaged in a war that menaced the whole nation. In these circumstances it is easy to see how the regulation as it was then put of "man power" could be closely aligned with the defence of the nation. It was also a major source of food and raw materials for our armed forces and their allies. As has been said many times, the defence power waxes and wanes as the danger mounts and fades away. The remarks of Latham CJ in Pidoto were singularly his and obviously greatly influenced by the perils of the times. Decisions made in such circumstances not infrequently are products of them and cannot withstand the scrutiny of peaceful posterity [1024]. END QUOTE QUOTE [1021] Section 51(vi) provides: "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: (vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth". [1022] See Pt IV, Div 2 of these reasons. [1023] (1943) 68 CLR 87 at 101. [1024] Another example is Sickerdick v Ashton (1918) 25 CLR 506, decided during the First World War, in relation to the vexed issue of wartime recruitment. There, legislation was held to be constitutional within the defence power in its application to a pamphleteer who published some mildly passivist statements. END QUOTE
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The joint judgment stated 40

QUOTE 212 With that background in mind, it was to be expected that a new instrument of government such as the Constitution would encompass these matters, and do so at several levels. One arm of the defence power conferred by s 51(vi) is "the control of the forces to execute and maintain the laws of the Commonwealth"; on the application of the Executive Government of a State, the Commonwealth should protect the State "against domestic violence" (s 119)[270]. In their work[271], Quick and Garran discussed the concept of "domestic violence" in s 119 with detailed reference to the decision of the Supreme Court of the United States in In re Debs[272] which supported the intervention of the federal government in the Pullman Strike to break the
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strike by force. END QUOTE QUOTE [270] See Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 327-328 [61]. [271] The Annotated Constitution of the Australian Commonwealth, (1901) at 964-965. [272] 158 US 564 at 582 (1895). END QUOTE
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It never was intended that somehow the Commonwealth of Australia would have its own Commonwealth police force arresting people on the street in a State if they were not complying
with Commonwealth law! It was relating to Commonwealth law strictly relating to the defence force to occupy and use defence facilities and not as to use some purported Commonwealth law against so called terrorist as to hold them in detention or otherwise rob them of their civil rights. Any law enacted within the powers of subsection 51(vi) must therefore be a law that relates to the defence force actual operations and not to civilians who are not engaged by the Commonwealth of Australia as to determine their rights in some imaginary war.
Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching the other, you would know that it was not on a visit of brotherly love.
10 It must be clear that the Framers of the Constitution referred to the defence power as to be used between two countries at war and the imaginary enemy within was not anticipated for this. In my view, a amendment of the Constitution would be required to give the Commonwealth specific legislative powers in regard of civil rights or better to state the abolition of civil rights in time of any imaginary war to make it constitutionally valid. Then again, why bother about a referendum and risk that this more then likely would fail if all you need to do, so to say, is to stack the High Court of Australia with lawyers who might go along with whatever the Federal government desires and then the High Court of Australia will manipulate its powers to purport some legislation to be constitutionally valid despite it never was and any sensible consideration of the Hansard records of the Constitution Convention Debates would bring this out that the legislation is unconstitutional. Subsection 51(vi) in fact was referring to the enforcement of Commonwealth law regarding defence power and so in event of war and not in peace time other then to enable the Commonwealth of Australia to maintain military bases and other facilities within a State, and other such conduct. the protection of the States was provided for so that upon a proclamation of a governor of a State the Commonwealth forces could then assist in a domestic violence involving violence beyond the control of local law enforcement, and no more. If therefore subsection 51(vi) had not included the reference to the States then it would have prohibited the Commonwealth defence forces to assist a governor of a state in such matters regardless if it was proclaimed. Subsection 51(vi) therefore does no more but to give the Commonwealth of Australia legislative powers to legislate how to use Commonwealth defence forces if within section 119 of the Constitution requested to come to the aid of a State by a proclamation of the Governor of the State. Without subsection 51(vi) referring to the States it could not legislate as to how Commonwealth defence forces could operate within that State. I maintain therefore that the Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943) judgment. Was wrongly decided as it interfered with the constitutional guarantees embedded in the Constitution. If any of the judges had bothered to research the Hansard records of the Constitution Convention Debates they also might just have discovered some of the following statements;
Hansard 11-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GILLIES: The people themselves have undertaken the duty of creating such a force as, in their judgment, would be sufficient to meet any foe that might land on these shores. There is nothing in these resolutions that I can see that would justify the statement that it is contemplated by any colony, or by any group of colonies, or by any individual, to bring about a standing army of such a kind as that to which the hon. member referred-a standing army that might be a menace to the liberties of the people. Again; There is nothing in these resolutions that I can see that would justify the statement that it is contemplated by any colony, or by any group of colonies, or by any individual, to bring about a standing army of such a kind as that to which the hon. member referred-a standing army that might be a menace to the liberties of the people. Again; to meet any foe that might land on these shores 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p230
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Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. And Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all the persons residing in the Commonwealth, independently of any law of any state. That is not intended, And Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. We do not propose to interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore, having done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states, Hansard 2-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth. Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a right of action for tort in certain cases, but I do not think that this extended right of action has ever been given in any of the colonies. Conditions justifying actions for damages against the Crown, however, are almost as frequent as actions for breach of contract. In Canada a man sued the Crown for damages received in connexion with a railway accident, but he was debarred of remedy there, although he suffered serious injury, because of some defect in the railway laws not conceding this right. The position has been laid down in regard to the Queen in the case I have already mentioned, thatWhere the land, or goods, or money, of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot be obtained, compensation in money; or when a claim arises out of a contract, as for goods supplied to the Crown or to the public service-the Crown is bound to refer a petition of right to the courts for decision, because it is provided by Magna Charta that justice cannot be denied, sold, or delayed.
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How then can the High Court of Australia argue that the Commonwealth can take goods of a person? After all, as shown above Barton made clear that the Constitution gave no powers as to liberty and property!
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say that there shall be embedded in the Constitution the righteous principle that the Ministers of the Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as any private person would be. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p231
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Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth.
(And in regard of citizenship;) 10

Mr. BARTON.I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that federal citizenship, we were not in any way interfering with our position as subjects of the British Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. And;
15 If we are going to give the Federal Parliament power to legislate as it pleases with regard to Commonwealth
citizenship, not having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament." Hansard 20 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-But suppose they go beyond their power?
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And;
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to enforce improperly any law the citizen has his right. Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are. And
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Mr. GORDON.Once a law is passed anybody can say that it is being improperly administered, and it leaves open the whole judicial power once the question of ultra vires is raised. Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) We have no enemies within, and the only thing we have to fear is the possibility of any assault on the mother country by her enemies from without, unless indeed the creation of a standing army proves a menace to the people of Australia by the existence of an armed force for unlawful purposes. This question of the creation of a military force is one of the blots upon these resolutions. We want no military force within New South Wales. All we want to do is to make every man who is either a native of the soil, or one of ourselves by reason of his taking up his residence amongst us, prepare to resist possible invasion from without. Who are our enemies? Who are our enemies but the enemies of England, and they, so long as we remain under the Crown, will be dealt with by an outer barrier, an outer bulwark in the defence of Australia, in the shape of the navy of Old England. But we have no enemies within, and there is no necessity to fasten the curse of a standing army upon us. As was pointed out by the hon. member, Sir George Grey, yesterday, in his interesting speech, we have no necessity to keep a large standing army at a large cost to the people of the country, [start page 185] when we have no enemies with whom they will have to fight. Our own police are quite sufficient for the preservation of order within . In the event of invasion from without, so long as we remain under the Crown, our enemies, being the enemies of England, will be dealt with before ever an attempt is made to invade these shores; and when the day of invasion comes the people of this country will rise as one man to defend their hearths and homes from any possible aggressor. I look upon the question of the creation of a military power within a territory under the Crown as a menace to the people who are to continue as British subjects. We have been sent here by our various parliaments to frame a constitution under the Crown-under the Crown, bear in mind. That is the idea which has been put forward in every speech that has been made. I presume, then, that the members of the Convention are prepared at once to give the go-by altogether to the idea of imperial federation. So long as we remain in our present position as individual colonies, we are imperially federated, and we can be imperially federated in no stronger manner than in connection with our relation to the mother country. We are as much imperially federated as the people living in the cities of London, Liverpool, Manchester, or other large centres of population. We are a portion of the British Crown, joined together by the most solemn ties and obligations; and we have to bear the brunt of any misfortune which may fall upon us in connection with any attack upon 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p232
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our shores by reason of our enemies being the common enemies of England. We have already made certain provision, partially of a federal character, to assist the Imperial Government in the protection of our shores from without; but let us set our faces as a young nation-if I may use the word "nation" in advanceagainst standing armies; let us set our face once and for ever against the creation of anything like a military despotism. We are met here under the Crown, and I must say that, as one possessing a slight tinge of republican notions, as one who sees that the future of Australia is to be what was prophesied of it fifty years ago, by poets who have written of what the future of Australia is to be-having a certain tinge of republicanism in my nature, the result naturally of my being a descendant of an Englishman, I was surprised to find a gentleman occupying a position under the Crown proposing what 100 years ago would have been simply regarded as high treason. Why, the other day the hon. member, Mr. Munro, made a proposal with regard to one phase of the question which made me ejaculate, "One strand of the painter has gone." Again; let us set our face once and for ever against the creation of anything like a military despotism. And Our own police are quite sufficient for the preservation of order within . Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Clause 112-The Commonwealth shall protect every state against invasion, and, on the application of the Executive Government of a state, against domestic violence. Mr. GORDON (South Australia).-I beg to moveThat the word "invasion" (line 2) be struck out, and the word "attack" substituted.
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Why should the protection of the Commonwealth be confined only to invasion? We are not likely ever to be invaded, but we are exceedingly likely to be attacked. Mr. BARTON.-Any attack is an invasion in the sense in which the word is used in this clause. Mr. GORDON.-The gunning by a cruiser standing off a city is not an invasion, but it is an attack. Mr. BARTON.-It is an attack which is part of an invasion; if the attack succeeds invasion follows.
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Mr. GORDON.-I think "attack" is very much better. Of course, if the word "invasion" covers the ground, well and good; but while "attack" covers "invasion," does "invasion" cover "attack"? Originally, the amendment I intended to move used both the words "attack" and "invasion." Mr. REID.-You can repel an invasion 100 miles from the coast. Mr. GORDON.-But how does the honorable member know that an invasion is intended? [start page 692]
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Mr. REID.-If there was a war between two countries, and a cruiser from the one country was approaching the other, you would know that it was not on a visit of brotherly love. Mr. GORDON.-They may not intend to invade the chances are that they do not intend to invade, but to attack.
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Mr. BARTON.-Do you think that the Commonwealth, if a hostile fleet appeared for the purpose of attacking, and not invading, would keep the batteries silent and the Australian fleet at anchor? Mr. GORDON.-Something may turn upon this. By this clause the Common-wealth is only bound to protect every state against invasion. If the Commonwealth neglected its duty, and South Australia was invaded, South Australia would have a claim against the Commonwealth. But, it appears to me, that it should have an equal claim against the Commonwealth if it was simply attacked, and not invaded. However, if the leader of the Convention thinks that "invasion" covers "attack," I am willing to leave the matter to the Drafting Committee, but I have some doubt on the point. Mr. BARTON (New South Wales).-I am perfectly satisfied that when the guns are booming there will be no discussion about the meaning of the two words. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p233
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Mr. GORDON.-Ought the construction of this Act to be left until the guns are booming? I thought the object was to prevent the guns booming at all. Mr. HOLDER (South Australia).-I think there is something in the point raised by my honorable friend (Mr. Gordon). We have previously used separately the terms "naval" and "military." Now, an attack would be naval, while an invasion would be military. The CHAIRMAN.-Does the honorable member (Mr. Gordon) press his amendment? Mr. GORDON.-No. If the leader of the Convention relies on his booming guns I am content. The amendment was withdrawn.
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Hansard 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN.-With regard to time of war there are Imperial regulations which direct the procedure to be followed; but even then the money and forces required would be raised by the Parliament and expended through the Minister of Defence. Whether in time of war or in time of peace no important step should be taken in connexion with the naval or military forces of the Commonwealth except through the Minister of Defence. Mr. BARTON.-As a member of the Executive Council? Mr. DEAKIN.-The Minister of Defence advises the Governor-General through the Executive Council, or with the knowledge of his colleagues. The Governor-General is to be in the position in which the Queen is in regard to accepting advice. What is necessary is to make it clear that the claim several Governors have advanced in these colonies, and which has been rejected in all the colonies except, perhaps, one, is not to be recognised under the Commonwealth. The claim that has been made by some Governors amounts to this: That they are endowed with some personal power and personal control of the military and naval forces independently of their Executive Council, and independently of the Parliament of the country. I have been supplied by an ex-Minister of Defence in this colony with a great quantity of correspondence, some of it of an exasperating and exasperated character, with regard to this question in Victoria. We found the position intolerable until we settled it that the ordinary constitutional rule should apply in connexion with naval and military departments as with regard to others; and that, while the Governor is to remain as Her Majesty's representative in supreme control of all functions of government, he will be required to act in this, as in other [start page 2252] matters, on the advice of his Executive. In no case is he to be endowed with the personal power to act over the heads of Parliament and the Ministry, by whom these forces are called into existence and by whose contributions they are maintained. And Dr. COCKBURN (South Australia).-The Bill provides that the command is vested in the "GovernorGeneral," and not in the "Governor-General in Council." It has been said that the Federal Parliament will be able to pass a military law which will alter this, but I say there can be no alteration in defiance of the Constitution. Mr. BARTON.-One improvement we want in this Constitution is the establishment of a Commonwealth kindergarten. Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot of lawyers.
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And Mr. BARTON.-As it is now, the, Governor cannot act without the advice of the Minister any more than the Queen, can, even if not specified to, be "in Council."
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Hansard 11-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN BRAY: . I agree with the hon. member, Mr. Dibbs-and no one, hitherto, has been bold enough to say that he agrees with anything that hon. I member has said-that it is not desired to raise up a great standing army for our defence from imaginary enemies. We feel that it is necessary for each colony to do something to provide for defence from common foes; and I think we may rely that a federal parliament will do the same, and no more. They will have no ambition to act contrary to the wishes of the Australian people, and, as far as I know those 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p234
wishes, they are not that we should rear up anything like a large standing army . They are anxious that we should have amongst us some force which could be relied upon in time of danger; they are willing to give their own services to augment that force when the necessity arises. I hope, however, that no federal government or parliament will ever raise any unnecessary military or naval forces in the colonies, because they know the people are not prepared to support such a scheme.
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See also; INSPECTOR-RIKATI and the BANANA REPUBLIC AUSTRALIA Dictatorship & deaths by stealth. Preliminary book on CD edition. ISBN 0-9580569-3-5 Published October 2002 This book sets out many constitutional issues using extensively Hansard records. INSPECTOR-RIKATI & There is no Government to go to war A book on CD About Legal Issues Confronting Australia ISBN 0-9580569-5-1 Published March 2003 The High Court of Australia in Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001) relies upon what the USA Supreme Court stated, just that the Framers of the Constitution made clear they didnt follow and didnt want to follow the path of the USA! Meaning, that then to use judgments dealing with a totally different body politics is in my view absurd and plain stupid unless it has the like constitutional application as it has in the Commonwealth of Australia
Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943) Latham C.J. 2. In the first place, it is important to observe that s. 116 is an express prohibition of any law which falls within its terms. The section deals with laws which in some manner relate to religion. The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws. Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s. 116 imposes. Again; The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws.
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However, at 4 Latham CJ wrongly argued: 50

. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.
No such intention existed by the Framers of the Constitution Convention Bill 1898 (Constitution), as their main issue was to prevent any kind of religious conflict to be created by any form of Federal Parliament legislation. Even the funding of churches was held to be unconstitutional! 55
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) p235 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
Mr. REID.-I suppose that money could not be paid to any church under this Constitution? Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.
Even so Section 68 provide the Command in Chief in the Governor-General, only on advise of Ministers can any declaration of war be made.
68 Command of naval and military forces The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queens representative.
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No declaration of war appears to have been made against Afghanistan and/or Iraq, yet Australian troops were invading these sovereign nations. 15
Hansard 28-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.If we make it read that it shall take place on the date of the proclamation by the Governor-General it will only take place when the Governor-General will take that action by publishing a proclamation. Then it would follow the action of the Commonwealth. Again; will take that action by publishing a proclamation
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It shows; Then it would follow the action of the Commonwealth! 25 Therefore unless and until a DECLARATION OF WAR was published in the gazette there was constitutionally no power for the Minister of Defence to authorise Australian troops to invade Ira on 19 March 2003 or there about and I view the High Court of Australia having had my case lodges with supporting evidence that no DECLARATION OF WAR had been published, then was constitutionally obligated to hear my case for Section 75(v) of the Constitution for a Mandamus/Prohibition and its refusal to do so in my view only indicates that the High Court of Australia could not care less what is constitutionally appropriate but merely, so to say, does charry picking to elicit what perhaps might suit it best to justify or purportedly justify its orders.
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Application of provisions relating to Governor-General. 4. The provision of this Constitution relating to the Governor-General extend and apply to the GovernorGeneral for the time being or other the Chief Executive Officer or Administrator of the Government of the Commonwealth, by whatever title he is designated.
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Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.We know that the Governor is the chief executive officer , Hansard 10-03-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole power of making peace and war. According to constitutional assumption it is her army. But who exercises the control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I said before, be a revolution if the Queen exercised her powers without consulting her Ministers? And Mr. BARTON (New South Wales).Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. Wherefore, we all came to the conclusion, as constitutional writers have long 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p236
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come to the conclusion, that the prerogative is given in trust for the people, and is, therefore, only exercised at the instance of a responsible Minister. I should like to know whether there would not be a revolution in England if the Queen chose to declare war or to make peace without the sanction or advice of a responsible Minister? That would be as absolutely gross an infraction of the Constitution as an attempt to abolish the House of Commons, as the advent of a second Protector, not only taking away the bauble, but taking all those who surrounded it. Do we not then come to this conclusion, that the Constitution is absolutely safe in this form as we understand it, that you can not have a prerogative of the Crown in these modern days which can be exercised without the advice of a responsible Minister if a responsible Minister chooses to advise?
10 Yet, the High Court of Australia has allowed numerous breached of legislation in this regard. And as shown further, it seems to lack any credibility to ensure the intentions of the framers are appropriately applied. 15
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves choose to change it, is contained in the provision that the interpretation of the Constitution by the High Court is to be final. Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians . I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole body to determine finally what the people meant when they used those expressions. And We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well. The question for us is this-the question for the electors is this: Is this a Constitution which will enable a free people to come together, and in community together to work out their own destiny? Who can deny it? Is it a Constitution which gives all reasonable and liberal guarantees of freedom? That can only be answered in one way. Is it a Constitution the action of which, until amended by the people, is preserved and safeguarded? There is only one answer to that. Is it a Constitution which the people themselves, by their will expressed by their Parliament and themselves, are able to alter to suit their needs under conditions of reasonable thought, without unreasonable difficulty? There can be no answer but one to. that question Adelaide Company of Jehovah's Witnesses Incorporated -v- The Commonwealth [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943)
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Under the Subversive Associations Regulations, 3 to 8 inclusive, if the Governor-General, by Order published in the Gazette, declares that the existence of any body corporate or unincorporate is prejudicial to the defence of the Commonwealth or the prosecution of the war, that body becomes an unlawful body and is dissolved by force of the declaration (regs. 3 and 4). Any doctrines or principles which were advocated by that body become unlawful and any printing or publishing of such doctrines or principles becomes unlawful; and no person shall hold or convene any meeting or with any other person assemble in any place for the purpose of advocating such doctrines (regs. 7 and 8). Any Minister can order any person to deliver any property of the body which was held by or on behalf of or in the interests of the body to a person thereto authorized by a Minister; any member of the Police Force of the Commonwealth or a State or Territory of the Commonwealth, if not below the rank of sergeant, may by notice in writing declare that any persons specified in the notice are, with respect to any bank account so specified, trustees for the body, and that declaration shall, as between the persons so specified or any of them and the person on whom the notice is served, be 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p237
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conclusive evidence that those persons are trustees of the body with respect to any moneys standing to the credit of the account (reg. 6). Any property taken possession of, or delivered to a person thereto authorized by a Minister, in pursuance of the Regulations becomes forfeited to the King for the use of the Commonwealth and is condemned by force of the regulation; such of the property as the Attorney-General or an authorized person is satisfied belonged to a body which has been declared to be unlawful may be destroyed or otherwise dealt with as the Attorney-General directs; such of the property as the Attorney-General or an authorized person is satisfied did not belong to such a body and as consists of books, documents or papers which the Attorney-General or an authorized person is satisfied were used or intended to be used in connection with the activities of such a body, or which, in the opinion of the Attorney-General or an authorized person, advocate unlawful doctrines, may be destroyed or otherwise dealt with as the Attorney-General directs; and the remainder of the property may be returned to the owners thereof or otherwise dealt with as the AttorneyGeneral directs (reg. 6b). I repeat; Any Minister can order any person to deliver any property of the body which was held by or on behalf of or in the interests of the body to a person thereto authorized by a Minister; any member of the Police Force of the Commonwealth or a State or Territory of the Commonwealth, if not below the rank of sergeant, may by notice in writing declare that any persons specified in the notice are, with respect to any bank account so specified, trustees for the body, and that declaration shall, as between the persons so specified or any of them and the person on whom the notice is served, be conclusive evidence that those persons are trustees of the body with respect to any moneys standing to the credit of the account (reg. 6).
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Well it is well overdue that judges of the High Court of Australia, so to say, smarten up about what is constitutionally applicable as having members of the Commonwealth police force (AFP) invading my State to perhaps seek top prevent me to exercise my democratic rights might rather end up with them facing all kind of charges such as kidnapping (if they were to take me or anyone else in custody) trespassing, etc if it is all done under Commonwealth law. It must be obvious that lawyers are slowly, so to say, brainwashed by all these ill conceived High Court of Australia judgments that portray a totally different kind of constitutional position then that actually is constitutionally applicable. It also shows the danger where you have people getting into judicial powers who, as it appears to me, really never bothered to research the Hansard records of the Constitution Convention Debates sufficiently as to be able to hand down in all cases legally and constitutionally soundly based judgments regarding the issues before the Court. The mere fact that the High Court of Australia is now claiming that subsection 51(xx) was including powers that previously never was understood by the High Court of Australia to exist in more then 100 years is a condemnation upon itself. If anything underlines that we need a better trained and better educated High Court of Australia that will take the time to research all relevant matters including researching the Hansard records of the Constitution Convention Debates and not so to say have to get their education from a person like myself who had never any formal education in the English language, neither English being my native language and who had no formal education in legal matters yet somehow appears to understand and comprehend certain constitutional issues better then any judge of the High Court of Australia. A clear example is, the issue regarding Section 127 of the Constitution, as it was at the time of federation. The High Court of Australia stated (Wilson J);
although forbidden to consider the debates of our own constitutional conventions for the purpose of discovering what the delegates thought was the meaning of a particular provision accepted by the Convention
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50 Why, when the intention of the Framers of the Constitution was, and so expressed time and again, that the High Court of Australia would have to consult the Hansard records of the Constitution Convention Debates as to elicit what their intentions were in regard of constitutional provisions.
Had the High Court of Australia not unconstitutionally from onset denied the usage of the Hansard records of the Constitution Convention Debates then much of the legal mess existing might have been avoided. The statement; 5
The states have certain plenary powers, which we do not wish to cut down, except so far as may be necessary for the purpose of federal government.
Underlines that subsection 51(xx) powers must be limited to what is necessary for the purpose of federal government to enable registration, and no more. Workers conditions do not play any 10 part in the registration of companies as much as that it make not one of iota different to registration of an elector to vote if he/she has any children! Because the Commonwealth of Australia is contemplating to introduce some form of Identity Card obviously citing fraudulent abuse as an excuse, the High Court of Australia ought to ensure it stop this rot of power abuse contrary to civil rights and does not allow for further abuses of 15 power. This document is not for the purpose to set all matters out why constitutionally any form of identity card by the Commonwealth of Australia would be invalid, but safe to say that it interferes with the civil rights of citizens. And if there may be an issue about citizens obtaining passports, the jack Thompson case is a clear example how the Commonwealth of Australia is 20 misusing its powers as to try to trace the rights of civilians to use their freedom of movement by checking a passport not for if the person is the person so claimed but for ulterior purposes. And, constitutionally the Commonwealth of Australia has no power to interfere with any Australian to leave or to return to the Commonwealth of Australia and even this the Framers of the constitution extensively debated. In my view, the conviction of jack Thomas was upon the wrong legal 25 principles and on unconstitutional laws. Likewise the withholding of a passport by any one, other then by order of a State Court, is unconstitutional, yet the Minister of foreign Affairs has made known to cancel passports of Australians the Commonwealth of Australia does not want to travel overseas. No such constitutional powers exist but again, where we have a High Court of Australia that has handed down a multitude of ill-conceived judgments then the Federal 30 Government can do as it likes and ignore constitutional prohibitions, and if anything the statement by Mr. Malcolm Turnbull about the water issue and going to the High Court of Australia (despite my previous correspondence to him about matters) to me underlines that the High Court of Australia, so to say, is a foot-soldier for the Federal government to abuse and misuse its legal powers to serve the Federal Government. 35
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p239
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If we, in these communities in which we live, have no right whatever to anticipate a return of methods which were practised under a different state or Constitution, under a less liberal measure of progress and advancement; if, as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced; if we have no fear of a recurrence of either the ideas or the methods of former days with respect to these colonies, then I do suggest that in framing a Constitution for the Commonwealth of Australia, which Mr. BARTON (New South Wales).The court referred to all those things, and to every piece of paper on which it could lay its hands, for the purpose of deciding that the United States was a religious nation, and inasmuch as these expressions, which were dug up by the court in grants, were used as much under a Catholic as under a Protestant regime, but under no other regime, they then decided that the United States were not only a religious nation, but also a Christian nation. Now, I think that those matters are better left in the hands of the states. The states have certain plenary powers, which we do not wish to cut down, except so far as may be necessary for the purpose of federal government. The states have power to impose Sunday observance laws. Each state-and it is only of states that the Commonwealth will be composed-has power to regulate these things within its own territory, and the territories of the states together make up the sum of the territory of the Commonwealth. So that there is power in existence to deal with these matters without duplicating that power. And Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000 citizens of Victoria sent a petition against the inclusion of these words, not because they disapproved of the words in themselves, but because I suppose they were afraid that the inclusion of them would confer upon the Commonwealth some power to legislate with regard to religious observances, I say that fears of that sort should be respected. And Dr. COCKBURN (South Australia).-May I ask the honorable member who moved the amendment whether there is any other power the exercise of which is forbidden to the Commonwealth? Mr. HIGGINS.-I do not think there is an express prohibition.
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Dr. COCKBURN.-I think there is not. It seems to me that by making one exception we are introducing a whole atmosphere of ambiguities; that is to say, the Commonwealth at present can only exercise such powers as are explicitly vested in it. If, in addition to that, we forbid the exercise of some power, we leave an ambiguous area between the powers specifically vested in the Commonwealth and the powers forbidden. That opens out a whole circle of ambiguity in this respect. Mr. HIGGINS.-I think I was wrong in what I just now stated; there is a prohibition with regard to the states in clause 108, and there was a prohibition as to the states in clause 109. Dr. COCKBURN.-There are many prohibitions with regard to the states. I am very much in sympathy with Mr. Higgins, and if he can point out any case of this kind I would go with him. Mr. OCONNOR.-Clause 109 was a prohibition, but it has been struck out.
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Dr. COCKBURN.-It seems tome that by passing this provision we shall open the door to the possibility of doubt as to the Commonwealth having more powers than we have vested in it. [start page 1775] Mr. WISE.-There is a prohibition with regard to interference with trade and commerce.
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Dr. COCKBURN.-That is a limitation of power which is wholly vested and explicitly placed in the hands of the Commonwealth. It is simply a limitation of the exercise of its executive power, but this is of a different description. It seems to me that by introducing this clause we shall run the risk of indicating that there is another sphere of powers which, though not specified as belonging to the Commonwealth, are not forbidden. Mr. HIGGINS.-The 117th clause says that a new state shall not be formed by the separation of territory from a state without the consent of the Parliament of that state. That forbids even the Federal Parliament forming a new state. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p240
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Mr. WISE.-Clause 95 provides that preferences shall not be given. Dr. COCKBURN.-That is a limitation of the executive power, and none of the instances advanced have satisfied me on the point I have endeavoured to lay before honorable members. I see clearly in my own mind that an exception in this respect will throw some doubt as to the whole scope of the powers of the Commonwealth. By inserting these words, it may be decided that there are some powers in the hands of the Commonwealth which are not explicitly recognised and stated. Mr. FRASER (Victoria).-I entirely agree with our leader in this matter. I do not see that there is any necessity for this clause. We are now a homogeneous people, and the safer plan is to leave us so. Mr. HIGGINS.-That is what we want to do.
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Mr. FRASER.-I am not so very sure about that. If you pass this date all sorts of extraordinary practices may be resorted to that would, as I have already interjected, shock the whole community. Mr. WISE.-Suppose the Federal Parliament passes a law allowing Sunday newspapers, would the Victorians like that? Mr. ISAACS.-They would have no jurisdiction.
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Mr. WISE.-Yes, they would, if this is struck out. Mr. ISAACS-Under what clause? Mr. WISE.-Under the same clause as in America. Mr. FRASER.-If the Federal Parliament chooses to act in this matter of Sunday newspapers, the people will be cognisant of all that is done.
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Mr. WISE.-We do not think them wrong in New South Wales. Mr. FRASER.-The probability is that a majority of the people of New South Wales think that it is wrong to allow Sunday newspapers, but they have not the courage to put them down. I believe that is the real fact. I believe that the public men of New South Wales, have not the courage to tackle them. That is about the answer to that interjection. If the public men have not courage to deal with these matters, of course the public will follow them in various devious paths. I do not see the necessity for this clause. I hope that we are not going to be driven to accept all sorts of extraordinary proposals simply because of something that has taken place in the United States. We are able to take care of ourselves, and I think the clause would do more harm than good. Sir EDWARD BRADDON.-What harm would it do?
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Mr. FRASER.-It might offend the susceptibilities of a homogeneous people, and in that way cause trouble and difficulty. There would be no danger in omitting the clause, but there may be danger in putting it in. Mr. SYMON (South Australia).-I beg to move, as an amendmentThat all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require any religious test as a qualification for any office of public trust under the Commonwealth." I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in regard to those matters, to which attention was directed when clause 109 was under discussion, that under the ordinary operation of the common law any inhumanities and cruelties could be effectually stopped. Mr. HIGGINS.-By which Parliament?
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Mr. SYMON.-By either the state or the Commonwealth Parliament. I mention that to show that I do not change my view that that part of the clause is objectionable. But I hold strongly that in consequence of the insertion of the new words in the preamble it is desirable that some provision should be made to make it clear that these words are not to overspread the whole Constitution. Mr. ISAACS.-Would not your view be carried out by leaving the residuum of the clause just as it stands? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p241
Mr. SYMON.-I should have no objection to that, but I think it would be better to say that nothing in the Constitution shall empower the Commonwealth to impose any religious test. I sympathize with Mr. Higgins in his fear that the insertion of the words we put in the preamble might lead to an impression amongst a larger or smaller section of the community that it would be possible to impose some religious test, and that the sentiment conveyed by the words might overspread the Constitution in some way. My honorable friend desires that there should be something in the nature of a counterblast, for the satisfaction of those who may entertain that apprehension. Mr. FRASER.-There is no necessity for it.
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Mr. SYMON.-There is great force in what Mr. Fraser says, but there are a number of us who, for reasons which do not militate against our deep reverence and the deep faith that may be in us, think that the words inserted in the preamble are, at all events, open to misconstruction on the part of a larger or smaller section of the community. I do not wish to enter into the subject, but I felt that, and it is with a view of getting rid of any apprehension of that kind, and of securing every vote possible for this. Bill, that I think it well to yield to the view that has been expressed so forcibly by Mr. Higgins. Mr. FRASER.-That is the only argument in its favour. Mr. SYMON.-It is a strong argument. We have inserted certain words in the preamble, and we should put in as a solatium, if you like, to those holding opinions in opposition to these words, something else on which the may rely.
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Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state that it should not open its picture galleries and museums on Sunday? Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do that. I am satisfied that it is embodied in the Constitution as a part of the unwritten law that no church establishment shall prevail, and that religious freedom shall be observed. Again;
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Mr. DOBSON.-Would not the amendment leave it open to the Federal Parliament to dictate to any state that it should not open its picture galleries and museums on Sunday? Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do that. And
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Mr. OCONNOR.-The provisions of the American Constitution in regard to the powers handed over to the Federal Parliament are not nearly so definite as the provisions of our Constitution. Mr. HIGGINS.-The American Constitution has no recital in the preamble such as we have just inserted in our Constitution.
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Mr. OCONNOR.-Yes. But the amendment of the American Constitution to which the honorable and learned member refers was rendered necessary by the fact that there is not the definite division of powers in that Constitution that we have in our Constitution. I cannot imagine that clause 52 gives any ground from which it could be argued that the Federal Parliament has the right to interfere in regard to the exercise of religion, or to deal with religion in any way. Mr. KINGSTON.-Except in regard to special races.
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And Mr. HIGGINS (Victoria).-I want if I can to recommend the Commonwealth Bill and get it carried. But why should we be faced with this difficulty? You have put in the preamble a religious recital which is not in the Constitution of the United States of America, but you have not put in the safeguard against religious intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave suspicion evidenced by what I said that there were 36,000 distinct signatures upon this very point. I do not think it is too much for me to say that we ought to reassure those persons. They may be wrong. It may be right, as my friend (Mr. Barton) says, that there is no power by implication in the Commonwealth to pass this law. It may be right as he says, that the Commonwealth ought to have the power. But I only say that it is a state matter, and it should be left to the states. My honorable friend (Mr. Fraser), with all respect to him,
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shows the current ignorance on this matter because he will not understand that the state, if my proposal is carried, will have the same power as it has now to stop any theatrical performances on Sunday. Question-That the words proposed to be omitted stand part of the proposed new clause-put. The committee divided-
Ayes ... ... ... 22 Noes ... ... ... 19
Section 116 of the Constitution was passed! Do note; 10

Mr. SYMON.-There, is no power under the Constitution that would enable the Federal Parliament to do that.
Well, if one belief the High Court of Australia then subsection 51(xx) might just allow for this also where it concerns a corporation. Do note; 15
the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced
Do note, that as Section 109 was omitted (on 8-2-1898) the new sought version submitted was; 20
The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Followed with the amendment;

Mr. SYMON (South Australia).-I beg to move, as an amendment-
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That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of the following:"Nothing in this Constitution [start page 1776] shall be held to empower the Commonwealth to require any religious test as a qualification for any office of public trust under the Commonwealth ." I do not oppose the earlier part of the clause on the same ground as I put before, because I am satisfied in regard to those matters, to which attention was directed when clause 109 was under discussion, that under the ordinary operation of the common law any inhumanities and cruelties could be effectually stopped.
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Again; the warning of Barton;It referred to the grants to the planters and to those who had taken up the plantations in America, as well as to the charters and enactments under which they were governed. The court referred to all those things, and to every piece of paper on which it could lay its hands, for the purpose of deciding that the United States was a religious nation, and inasmuch as these expressions, which were dug up by the court in grants, were used as much under a Catholic as under a Protestant regime, but under no other regime, they then decided that the United States were not only a religious nation, but also a Christian nation. Now, I think that those matters are better left in the hands of the states. JUDGE5 MURPHY J. 3. The plaintiffs' principal contention is that the challenged legislation is invalid in so far as it provides for financial aid to non-government schools. (at p620)
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4. Almost all the non-government schools are what are known as "church" or "denominational" or in the United States, "sectarian" or "parochial" schools. All these have a religious element. The general picture is that as well as secular instruction each of the church schools engages in instruction in its particular religion and engages in religious observances and worship. Most of the buildings are adorned with religious symbols. The churches to which the schools are related exercise varying degrees of supervision over the conduct of the schools. The recipients of the moneys channelled through the challenged Acts are churches associated with the different religions. There was strong contention between the plaintiffs and the defendants over the extent 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p243
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and degree of the religious element, although in the end, much was agreed. My legal conclusions do not depend on any difference between the opposing factual claims. (at p620) And
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9. The Commonwealth Government contended that s. 116 did not apply to grants or conditions on grants under s. 96, nor to appropriation laws under s. 81 of the Constitution. It asserted that Parliament could under s. 96 grant say a hundred million dollars to the States on the condition that the money was used "for establishing a religion" and could, under s. 81 of the Constitution, appropriate moneys directly for the building of a cathedral, or for the propagation of religious tracts, free of any prohibition in s. 116. I would reject these propositions. (at p621) Again; Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Murphy was correct in that regard but as shown below Treasurer Peter Costello nevertheless did give a multimillion dollar donation to the Catholic Church in Melbourne!
10. Latham C.J. said in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943) 67 CLR 116, at p 123 : "Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws. Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s. 116 imposes." McTiernan J. said (1943) 67 CLR, at p 156 : "Section 116 imposes a restriction on all the legislative powers of the Parliament." (at p621)
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Yet, as shown above, somehow the framers viewed that Section 51(xxvi) about coloured racers stood apart. This, even so it would also affect every Australian national of that particular race! Somehow the framers were confused in that regard as to the full extend of the application of Section 116 of the Constitution. In my view, Section 51(xxvi) would be in the same position as other provisions that Section 116 was overriding all matters. Subsection 51(xxxv) would make no sense if the Framers of the Constitution intended a meaning to subsection 51(xx) as now fabricated to it by the High Court of Australia, hence the High Court judgment must fail! Section 96 is meaningless without any legislative powers within Section 51 and 52, as there must be an Appropriation bill to provide constitutional power to take monies from the consolidated Revenue, and as such Section 96 remains in that regard also subject to Section 116.
18. "Non-preferential" sponsoring of or aiding religion is still "establishing" religion. In the nineteenth century "establishment" was not restricted to sponsorship of or aid to one church or religion, although such sponsorship or support was of course referred to as establishment. It was also understood to include sponsorship or support of all churches, and was referred to as indiscriminate establishment. In The State and its Relations with the Church Gladstone stated that "The Australian colonies have most broadly avowed the principle of indiscriminate establishment". He described endowment of Roman Catholic chaplains and ministers as "state establishment of the Roman Catholic Church" and as part of this indiscriminate establishment (pp. 269-273). (at p624) And 21. Douglas J. refers to this in his partial dissent in Tilton v. Richardson (1971) 403 US 672, at pp 695-696 (29 Law Ed 790, at pp 808-809) : "Much is made of the need for public aid to church schools in light of their pressing fiscal problems. Dr Eugene C. Blake of the Presbyterian Church, however, wrote in 1959: 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p244
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'When one remembers that churches pay no inheritance tax (churches do not die), that churches may own and operate business and be exempt from the 52 percent corporate income tax, and that real property used for church purposes (which in some states are most generously construed) is tax exempt, it is not unreasonable to prophesy that with reasonably prudent management, the churches ought to be able to control the whole economy of the nation within the predictable future. That the growing wealth and property of the churches was partially responsible for revolutionary expropriations of church property in England in the sixteenth century, in France in the eighteenth century, in Italy in the nineteenth century, and in Mexico, Russia, Czechoslovakia and Hungary (to name a few examples) in the twentieth century, seems self-evident. A government with mounting tax problems cannot be expected to keep its hands off the wealth of a rich church forever. That such a revolution is always accompanied by anticlericalism and atheism should not be surprising.' The mounting wealth of the churches makes ironic their incessant demands on the public treasury. I said in my dissent in Walz v. Tax Commission of New York (1970) 397 US 664, AT P 714 (25 Law Ed 2d 697, at p 727) : 'The religiously used real estate of the churches today constitutes a vast domain. See M. Larson & C. Lowell, The Churches: Their Riches, Revenues, and Immunities (1969). Their assets total over $141 billion and their annual income at least $22 billion. And the extent to which they are feeding from the public trough in a variety of forms is alarming.'" (at p626) 22. In the United States, after deleterious consequences of aid to religion were observed in some of the states, the architects of its Constitution determined to prevent repetion there of the unfortunate experience of other countries by creating a 'wall of separation' between religion and State. (See J. Bryce, The American Constitution (1888), vol.3, pp. 465-466.) (at p626)
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As it was made clear (see my quotations above) that no power existed to fund Churches, then neither can there be any kind of tax exemption or tax deduction in that regard. I view, that tax deductions for donations to a church are unconstitutional as are the tax free provisions in regard of churches. It might be one thing for the State to not want to charge any kind of council rate charges, but it is another thing for the Commonwealth not to charge taxation in the same manner as it would upon any other organization! While it might be to some extend having a flow on to the finances of the church and its aid to the poor, that is another issue, as the principle is that no kind of direct or indirect financial assistance ought to be provided by the Commonwealth of Australia to any religion (so churches). What stops a religion to set up schools with financial assistance of the Commonwealth and then sell them off? We have currently an issue in our local area, where the local church (I am not a member of it) is turning its land in to building flats, as to escalate its income, because of pressure of the American based managers. Here we are, having a church to be free from taxes and rates only for the profits to go overseas. We have now American churches entering the Australian domain, where we will see a flood of donations untaxed being transferred to its American owners! Why should ordinary taxpayers end up compensating the sucking-of of untaxed moneys to another country, by them having to pay more tax to compensate for the loss of taxation of the churches? If churches were to be standing as any other tax paying identity, then unlikely would so much money be flooding overseas untaxed! Therefore, we must take stock of it all and realise we cannot have it our way as it may suit us today, but must consider the overall issue. No financial funding for any Church means that neither this can be done indirectly by not charging taxation or by giving tax deductions to those who are making a donation to a religious organization. Again the Court Stated;
A reading of s. 116 that the prohibition against "any law for establishing any religion" does not prohibit a law which sponsors or supports religions, but prohibits only laws for the setting up of a national church or religion, or alternatively prohibits only preferential sponsorship or support of one or more religions, makes a mockery of s. 116.
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Yet, where the US has a simular clause the US Courts then held that any funding would be a discrimination against non religious people and cannot be tolerated. Due to the extensive material to set this out, and already having been the subject of successful litigation by me and having been included in my book that was filed as evidence in my case for
the 19 July 2006 hearing further extensive set out therefore can be located in my 6-7-2007 published book; INSPECTOR-RIKATI & What is the -Australian way of life- really? A book on CD on Australians political, religious & other rights ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1
JUDGE7 WILSON J 33. In the case of s. 81, the defendants say that Appropriation Acts are not affected by s. 116. They are financial, not regulative, laws. Reliance is placed upon passages in the reasons for judgment of Stephen J. and Jacobs J. in Victoria v. The Commonwealth and Hayden (the A.A.P. Case) (1975) 134 CLR 338, at pp 386, 411 . So much may readily be conceded, yet just as in the A.A.P. Case the "purpose" of the appropriation was to finance an executive activity of the Commonwealth for which there was no constitutional authority, so here an appropriation may provide the occasion for review: cf. Mason J., A.A.P. Case (1975) 134 CLR, at pp 402404 . (at p651)
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JUDGE7 WILSON J 41. If it seems remote from reality to be speaking in terms such as these about a constitutional provision, it must be remembered that the eighty years that have elapsed since federation have witnessed a marked change in the status and role of the church in the Australian community with a corresponding diminution of the sense of authority that formerly attached to the ecclesiastical realm. (at p654)
30 This got absolutely nothing to do with it. A referendum could always be held to amend the Constitution, if that is what is needed, but one cannot change the application of powers and limitations and prohibitions of the Constitution as if this were so then we have no constitution at all but some worthless document purporting to be a Constitution in the hands of those wielding the power to enforce it as they pleases.
42. Furthermore, it may be thought to be surprising that a prohibition of the kind that I have described was included in the absence of any express legislative power whereby the Parliament could ever have pursued such an objective. It may be that the explanation for any such incongruity is to be found in the chequered history of the clause in the constitutional conventions in the eighteen-nineties, and in an anxiety lest an inference of power was to be drawn from the acknowledgment of Almighty God in the preamble to the Commonwealth of Australia Constitution Act. While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, I may say that I find it interesting that in the course of the conventions the religion clause began as a denial of power to the States, then was re-addressed to both the States and the Commonwealth, and finally took its present form. The separationist view of establishment, for which the plaintiffs contend, does not sit well with the form of s. 116, addressed as it is only to the Commonwealth Parliament. The objective sought to be achieved by a clause construed consistently with the plaintiffs' contention could so easily be subverted by any of the State legislatures, which remain free to give such aid or support to religious bodies as they wished. But no State legislature could establish a national religion, and hence the prohibition was rightly directed to the Commonwealth. It will also be recalled that the 1898 Convention was invited to adopt a form of words for the religion clause which would have placed the present issue beyond doubt, when an amendment from Tasmania to the effect that the clause include the words "nor appropriate any portion of its property for the propagation or support of any religion" was proposed and defeated. Be these things as they may, I believe it would be wrong to attach undue significance to the history of the clause. The actual words of the text supply the only firm ground on which to base a conlusion. (at p654)! Again; 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p246
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While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, 5 Yet, then goes into referring to it all, just not disclosing; (Again)
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. REID.-I suppose that money could not be paid to any church under this Constitution? Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.
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This would clearly have addressed the issue! See also the Mr Wise statement! 15 On 50 Wilson J then refers to Section 96 and the usage of it, as stated in past decisions, even the Privy Council, but again Barton made it very clear there was no constitutional powers to grant monies for any church, and therefore Section 96 must not be used to circumvent it. albeit, it appears to me that Section 96 was added after the Constitutional Convention Debates was concluded., this cannot alter one of iota what Barton made clear, that there is no constitutional powers for the Commonwealth of Australia to fund churches. Section 96 can do no more but provide for grants which are within existing constitutional powers. Say the armed forces causing damages to road ways of a rural town. The Commonwealth of Australia could then utilize Section 96 to make a grand to compensate for damages, or to make a grand to upgrade a road for purpose of heavy armoured vehicles using it subsequently, etc. Section 96 must not be perceived to be some kind of power that could override Section 51 and 52! As Barton made clear, the Commonwealth of Australia could only exercise powers specifically given, and hence Section 96 grants must be within this format! The breadwinner issue (On a lighter note!); 30
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GLYNN.-I would not raise the objection if I were not prepared to offer a solution. I mentioned before that the difficulty of distributing the surplus could be got over by averaging the proportion of females and children to males in all the colonies. I cannot see any objection to that.
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Mr. MCMILLAN.-It would be expensive. Mr. GLYNN.-There may be some humour in that, but I do not see it. Mr. REID.-It is not meant for humour. Mr. GLYNN.-The statistics show the proportion of males to females and children. You would then take the average proportion for the whole Commonwealth, and you could strike an average on that for each state. All you have to do is to allot the surplus according to the average proportion of males to females and children. Mr. MCMILLAN.-Would it not be better to equalize matters by the importation of females? Mr. GLYNN.-I see there is a little humour oozing out after all in a matter that lends itself to it, but I shall refrain from taking notice of it, notwithstanding my nationality. If that would be a fair basis for distributing a surplus, it would also be fair in the allotment of the expenditure. The difficulty in Western Australia is that the families are not in Western Australia, but in Victoria, and in other colonies, whilst the bread-winners are in Western Australia. If what I propose be carried out, there would be an additional benefit, because Western Australia would get a larger portion of the surplus in respect of people now living in the other colonies. Sir JOHN FORREST.-How could you arrive at the number of bread-winners who are in Western Australia? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p247
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Mr. GLYNN.-It could be ascertained easily from the statistics or the census. An average could be arrived at for the whole of the five colonies, and on that average the allotment could be made. Honorable members may not see the point of what I am urging, but it ought to be very carefully considered. All that you have to do is to allow the same proportion of females and children to males in Western Australia as actually exists in the other colonies. If you do that, the allotment of the surplus per capita cannot possibly injure Western Australia. Mr. SOLOMON.-If that were the only cause of discrepancy it would be all right, but that is not the case. Mr. GLYNN.-That is the chief obstacle to a per capita distribution of the surplus. Mr. SOLOMON.-Not at all; there is the question of wages, which are 100 percent. higher than in the other colonies, and therefore the spending power is greater.
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Mr. GLYNN.-That affects production. Mr. SOLOMON.-It affects the revenue. Mr. GLYNN.-Decidedly; but it does not matter what the revenue is, it has to be paid whether the population is 160,000 or 260,000, and is not revenue on a per capita basis. I am dealing with the allotment of the surplus and its distribution on a per capita principle. Although the bread-winners reside in Western Australia, many of their families do not, and the discrepancy could be got over in the way I mention.
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Confusion at the Constitution Convention about taxation raising powers! 20

Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SOLOMON.-I do not propose to give the Federal Parliament power to raise revenue by direct taxation, and I do, not think the Convention does. Mr. SYMON-.Oh, yes.
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Mr. SOLOMON.-The sub-section in clause 52 has never been put before our people as a mode of taxation for revenue purposes. Mr. SYMON.-Oh yes, it has. Mr. SOLOMON.-I do not know that. It has always been put before the people as a provision which was only to be used in case of difficulty.
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The CHAIRMAN.-Does the honorable member think he is in order in discussing clause 52, which we have passed? [start page 1059] Mr. SOLOMON.-Inasmuch as that clause is intended to be recommitted, and as I myself propose to ask for its recommittal, if no other honorable member does, I think I am in order in referring to it while discussing the question now before the Chair.
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The CHAIRMAN.-When clause 52 is recommitted will be the proper time to discuss it. Mr. SOLOMON.-With all due deference to you, Mr. Chairman, I think I am absolutely in order, seeing that clause 52 has a bearing on this question, and is within the lines of the present discussion. However, I do not intend to keep the Convention any longer. I recognise that there is a very great difficulty to be overcome-I recognise that the guarantee that each state shall receive a revenue equal, or nearly equal, to the revenue realized now, is necessary to recommend this Constitution to a large section of our people, and recognising that fact, I venture to think that the little time I have occupied in discussing this question has not been misspent. Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. FRASER.The Bill provides that half of the senators go to their constituents every three years, and that the members of the other House shall be elected every three years, or probably at shorter intervals. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p248
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Every 3-years is that the maximum election date is to be 3 years from the previous election! As indicated in my book on CD, INSPECTOR-RIKATI on CITIZENSHIP, there is no such thing as a care taking Government beyond the 3-years! All powers seize to exist, including taxation! Elections for Senators are held within the expiry date of the 3-year period of a Senator sitting, and the true intention of the framers was that likewise, an election for becoming a Member of the House of Representatives would be within 3-years of the last election! This would mean that at maximum after two subsequent elections Senate and house of Representative elections would have to be head in the same period, if they followed a Double Dissolution election six years earlier. Not, that the House of Representatives sit for 3-years and then the federal executive continues as a care taking government for another period of time as elections are held after the 3-year conclusion. For the record, proper reading of the Constitutional Convention Debates indicate that After the 3-year period of the House sitting, all constitutional powers seize to exist. As such, the care taking powers of the federal executive can only be allowed for the remainder of the 3-year period and no longer. It cannot enforce any taxation or other laws beyond the 3-year period without having a new Parliament sitting! There must always be a Parliament, sitting or in recess! It is the parliament that provides for the right of maintaining laws, the Federal Executive no more but can act to execute the laws. Regrettably, it is a bit confusing how the framers discuss matters, as they also argue that the 3-year period is from the first sitting of the new Parliament. This seems to indicate that therefore the 3-year period is from when ever an election is held. However, this would not facilitate for the two three year periods of the House of Representatives to sit during the six year term of the Senate. Basically, say the Election after a Double Dissolution is held and the Parliament sits on 10 February 2005 for the first time. Then taking that each and every House of Representatives were to sit the full term, then each and subsequent election would be held no later and parliament to sit by no later then 10 February of three year cycles. When the House of Representatives therefore is dissolved in, say, December, then this allow for a Care Taking Government to exist up to 10 February the following year but not a day longer. This, as all legislation would come to a halt if there is no Parliament as such in existence. The current system to allow maximum 3-years and then artificially increase it with an extension of election period, and then the first day of sitting is unconstitutional. Again, INSPECTOR-RIKATI on CITIZENSHIP set this out in greater details. Back to the issue of subsection 51(xx)
Hansard 3-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A citizen is one who is entitled to the immunities of citizenship. In short, a citizen is a citizen. I do not think you require a definition, of "citizen" any more than you require a definition of "man" or "subject." Mr. ISAACS.-Would you include a corporation in the term "citizen"?
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Mr. SYMON.-Why not? Mr. ISAACS.-Well, in America they do not. Mr. SYMON.-I do not see why a corporation existing in one colony should not have the rights of a corporation in another colony. Otherwise you defeat the objects of this Constitution. [start page 1783]
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Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a corporation. Mr. SYMON.-Well, in my opinion it should. I think, however, though I am not prepared to say definitely, that other provisions in the Constitution would deal with that case. Clause 52 provides that we are to have uniformity, and I think would prevent any difficulty in regard to corporations, quite apart from the question of 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p249
the meaning of the word "citizen." But if you ask me whether a corporation might not come within the definition of "citizen" to a certain extent-not, of course, in regard to the right of the voting and so on-I should say that it would. The difficulty is one that requires to be met. Although I admit that the amended American Constitution goes further than anything we require , and is directed to a particular and special condition of things, this provision seems to me absolutely essential, and, in my opinion, the Constitution would be incomplete without it.
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The basic understanding I have from the Constitution Convention Debates is that the registrations and general conduct of how corporations are set up is what was the issue for giving constitutional powers to regulate them, albeit not to exclude or otherwise deny them to operate within the Commonwealth of Australia, even so this latter seems to be done anyhow. Nothing was there even remotely to suggest that it was to deal with how people were employed by such corporations and indeed, considering other statements made by the Framers it is clear that Industrial Relations matters within state borders are and remain for the State to legislate. Below extensive quotations of the Hansard about throughout the Commonwealth, equality of trade, etc.
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Amendment suggested by the Legislative Assembly of Western Australia. Line 3, omit "throughout the Commonwealth," insert "between the states." Mr. ISAACS (Victoria).-Honorable members will recollect that when in Adelaide I placed considerable importance upon the necessity of altering the wording of this clause. I drew attention to its enormously wide verbiage, and to the dangers which I considered attended its adoption in its present form. I pointed out that the term "trade and intercourse" included everything relating to commerce and trade-taxes, licences of all kinds, publicans' licences, auctioneers' licences, hawkers' licences, municipal licences. It is in consequence of the almost unlimited meaning attaching to these words in the United States Constitution that the Supreme Court there exercises such unbounded control over the subject. I am not going to repeat in detail what I said in Adelaide, because honorable members will find it in the report of the debate. But I wish again to press the matter upon the attention of the committee, and I have to state, with a good deal of pleasure, that Sir Samuel Griffith, in his able paper upon the question, has drawn attention to the same point. His observations upon the subject are these:I venture, before passing from this subject, to suggest a doubt whether the words of section 89 (which are the same as in the Draft Bill of 1891) are, in their modern sense, quite apt to express the meaning intended to be conveyed. It is, clearly, not proposed to interfere with the internal regulation of trade by means of licences, nor to prevent the imposition of reasonable rates on state railways. I apprehend that the real meaning is that the free course of trade and commerce between different parts of the Commonwealth is not to be restricted or interfered with by any taxes, charges, or imposts. Would it not be better to use these or similar words? He then considers what should be done if it is intended to include interference with the railway rates. I should like to point out why the danger of the expression to which I have drawn attention is so very great. The words "trade and intercourse" are almost unbounded in their meaning when you apply them to the relations of trade and commerce, and, under the proper heads, Baker's Annotated Constitution is full of instances showing how far-reaching these words are. Then, take the words "throughout the Commonwealth." The meaning of those words is not restricted to between the states; they refer to every part of the Commonwealth, and I would refer honorable members to earlier portions of the Bill where the same meaning will have to be given to them. If honorable members will turn to clause 52, which deals with the powers of the Parliament, they will find that in sub-section (2) the Federal Parliament is empowered to legislate in regard to customs, excise, and bounties, which shall be uniform "throughout the Commonwealth." That is, within every state and every part of a state. "Throughout the Commonwealth" is the largest expression that can be used. In the next sub-section it is provided that all taxation shall be uniform throughout the Commonwealth. An income tax or a property tax raised under any federal law must be uniform "throughout the Commonwealth." That is, in every part of the Commonwealth. In clause 89 we find the same words again, and there can be no reasonable doubt that their meaning is the same in one clause as in all. Clause 89 provides that all trade and intercourse of every kind throughout the Commonwealth, whether by means of internal [start page 1015] carriage or ocean navigation, shall be absolutely free. Free of what? Free of everything. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p250
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Mr. LYNE.-Not free of freight charges. Mr. ISAACS.-No. They are charges for services. The clause means that the Commonwealth is not to put a restriction upon trade in any way whatever, not merely by means of customs or excise duties, but you are to leave every person absolutely free of any limitation of his common law right of carrying on his trade. As I have said, Sir Samuel Griffith has pointed that out again, and I do think we shall be taking a wrong course if we leave so important a matter in doubt. It is very important, even at the present time, because it means in licence-fees alone some 350,000. Mr. LYNE.-Why do you say licence fees?
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Mr. ISAACS.-Because that is trade and intercourse. If a man goes into an hotel and says-"I want to purchase liquor from you," that is trade and intercourse. If the hotel-keeper is told that he must not sell the liquor unless he pays the licence-fee he will turn to this clause and say-"You have no right to charge me a licence-fee." Mr. LYNE.-Do not you give all these licence-fees to the local bodies.
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Mr. ISAACS.-If that construction is possible under the clause there will be no power in the local body, the state Parliament, or the Federal Parliament to authorize such a charge. Mr. LYNE.-I quite see that; but it is a fact that you do give licence-fees to the local bodies. Mr. ISAACS.-That may be so. It all depends on the law of the particular state. Mr. OCONNOR.-Do not the words "whether by means of internal carriage or ocean navigation " restrict the operation of the clause to transit?
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Mr. ISAACS.-I should say not, and even if it did it would apply within the states to hawking. What we want to do is to establish free-trade between the different parts of the Commonwealth, and I would press my honorable friends to consider again the words of Sir Samuel Griffith. An HONORABLE MEMBER.-What page?
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Mr. ISAACS.-Page 354 of the Victorian Blue-book. I am perfectly willing to leave the matter to the Drafting Committee. It is important now, and it will increase in importance as time goes on. We do not know what questions may arise, and the meaning of the clause is bound to be tested almost on the first opportunity in the Federal Court. We should be in a very sorry plight if a decision were given following the American decisions which carried us much further than we anticipated, and there had to be a referendum of the states and of the people to get the clause altered. We want to get inter-state freedom of trade, and I am sure that we are capable of expressing that intention. I am willing to leave it to the Drafting Committee, but, as a basis, I think Sir Samuel Griffith's words are very good. Mr. BARTON (New South Wales).-I should not like, anxious as I am that the work of the Convention should proceed, to see a step of this kind taken without the opinions of honorable members being ascertained upon it. It is not a matter that can be disposed of at once. I admit that my honorable friend (Mr. Isaacs) has put his contention with force, as he puts everything, but a great deal may be said in favour of the present form of the clause. Whether the expression used is open to the danger of being construed so as to apply to matters affecting the internal regulation of trade within the states is a point upon which I have not made up my mind, and upon which I desire to preserve an open attitude. This term has remained in the draft from the beginning. It is, I think, Sir Samuel Griffith's own term, although he offers some criticism upon it now, and it corresponds with the uniformity provision, [start page 1016] as my honorable friend has pointed out, in clause 52. Then, again, looking at clause 95, the preference clause, the other expression is used. That clause contains the wordsAny law or regulation made by the Commonwealth, or by any state, or by any authority constituted by the Commonwealth, or by any state, having the effect of derogating from freedom of trade or commerce between the different parts of the Commonwealth, shall be null and void. Mr. ISAACS.-Would not that be almost sufficient in itself?
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Mr. BARTON.-I want to put the matter judicially, and I admit that the existence of these words in clause 95 may somewhat strengthen the honorable member's contention. I was going to suggest, when the time came, that clause 95 should be omitted in favour of a clause to read somewhat as follows:-
Any law or regulation of commerce or trade made by the Commonwealth, or by any state, giving a preference to one state or any part thereof over another state, or any part thereof, shall be null and void. I think that that would be rather in accord with the view the honorable member has put. Mr. ISAACS.-That raises a much larger question-that of railways. Mr. BARTON.-No doubt; and that is a matter that will have to be discussed. I express my anxiety that this question should be the subject of some discussion, because it is of such supreme importance. Looking at it fairly, my views are rather in favour of Mr. Isaacs' contention. There might be greater safety in adopting some provision of the kind he suggests. We ought to be very chary about adopting any provision that would interfere with any internal regulations that do not pertain to trade and commerce. The regulation of trade or commerce specified in subsection (1) of clause 52 is with foreign countries, and among the several states. It is therefore defined in the first subsection as inter-state commerce. The question is whether we should consent to a form of words remaining in this clause which might have the effect of extending the operation of interstate commerce to matters of internal regulation within a state which might be, in one sense, inimical or in derogation of free-trade as practised in that state, but which it is not the purpose of the Constitution to interfere with. Matters of internal regulation of trade, as long as they do not necessarily affect the commerce between one state and another, are entirely under the cognisance of that particular state, and it is not the purpose of any Federal Constitution to interfere with trade of that character. If we once grasp that fact, the contention of my honorable and learned friend is again strengthened. I leave the matter now to be discussed, and I am perfectly prepared to accept the general sense of the Convention. My inclination is in favour of Mr. Isaacs' view. Dr. QUICK (Victoria).-I am very glad to hear the tone in which the leader of the Convention received the observations of my honorable friend (Mr. Isaacs), because, like himself, I have been considering these words since the Adelaide meeting of the Convention. The more I consider them the greater weight I feel disposed to attach to the honorable member's criticism. In order to express what is really intended, it would be better to use the words "between the states" instead of the words "throughout the Commonwealth." The latter words seem to be sufficiently comprehensive to include every locality within the Commonwealth, and they might be construed to include a prohibition of auctioneers' and pedlars' licences. I am sure that no such thing is intended. Whilst we are anxious to provide for absolute freedom of trade on the frontiers between the colonies, there is no desire to interfere with the local regulation of trade once the packager, of goods, wares, and merchandise have arrived within the state territory. It would certainly be inimical to the success of this Constitution [start page 1017] if an impression got abroad that there was to be any prohibition of local regulations, such as auctioneers' and pedlars' licences. These are reasonable regulations of trade upon the arrival of goods, wares, and merchandise within the state territories. Mr. MCMILLAN.-Is not the other expression more comprehensive? Dr. QUICK.-It is too comprehensive. It follows the packages beyond the frontier. What you want to secure is free passage across the frontier.
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Mr. BARTON.-Free passage across the frontier and freedom from all preferences. Dr. QUICK.-Yes; freedom from all preferences or obstructions. The danger is that the words "throughout the Commonwealth" would attach restrictions or disabilities to the local authorities. The words "between the states" seem to give expression to what is intended. We should not leave room for doubt hereafter. I therefore support the suggestion made by the Attorney-General of Victoria, and I am pleased to notice the tone in which it has been received by the leader of the Convention. Mr. GLYNN (South Australia).-I desire to call attention to the fact that in Canada the provision is "the regulation of trade and commerce." That comes closer to the spirit of clause 89, and it appears in the section in the Canadian Act which corresponds with clause 52 in this Bill.
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Mr. BARTON.-Clause 52 says, the regulation of trade and commerce with foreign countries and among the several states.
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Mr. GLYNN.-The Canadian Constitution stops short at the word "commerce," and may mean any part of the Dominion of Canada. In Wheeler's book on the Confederation of Canada a number of decisions are given as to the effect of this provision. One of them was that a local licence which amounted to prohibition of trade was illegal. That throws considerable light on the meaning of clause 89 in our Bill. In America the provision applies to the regulation of trade between the various states, and under that it was held that it was quite competent for a state to make trade regulations between the different parts of its own territory. It we fall back on the American system, we may put it in the power of one colony to, grant trade concessions that may derogate from the freedom of trade between the various states. As between one part of New South Wales and another, concessions might be granted on traffic, although the goods did not cross the border. These concessions would have the same effect as if they extended beyond the border, because they might apply over a considerable distance, and only cease at a point within 2 or 3 miles from the border. Mr. OCONNOR (New South Wales).-I think that the object of this clause is clearly only to infer that there shall be no duties of customs, or charges of that character, upon the transit of goods from one state to another. I do not think it means anything more than that. I quite agree with the criticisms of Mr. Isaacs as to the generality of the clause. I have read the valuable criticism of Sir Samuel Griffith, and it appears to me that we might very well adopt something in the nature of his suggestion as to defining the meaning of this subsection. That is, we might use some such words as "the free course of trade and commerce between different parts of the Commonwealth is not to be restricted or interfered with by any taxes, charges, or imposts." And
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Sir JOHN DOWNER.-I cannot foresee. I cannot pretend to have the gift of prescience which would enable me to know how ultimately a coach and four may be driven through this Constitution. But I say let those who want limitations propose their insertion in the Bill. I would prefer to leave the main enactment in this clause exactly as it stands. It may be that the words of Sir Samuel Griffith represent all he can think of. Perhaps they may represent all that can be wanted at any time; but it is just possible that something may be omitted from them something which might derogate from this freedom of trade which we intend to have throughout the Commonwealth, Then, I ask honorable members to consider this: Although the clause says that trade and intercourse throughout the Commonwealth shall be absolutely free, you have to look through this Constitution at the other provisions, which show clearly what is the intention. This is a broad central declaration; the rest you gather from a perusal of other provisions of the Bill. I think the fears of Mr. Isaacs in the particulars he mentioned are not well founded. Mr. HIGGINS.-There was no occasion for this clause in the Constitution of the United States. Sir JOHN DOWNER.-No; but many times during the discussion of this Bill we have been referred to this clause as being a strong clause-a clause strengthening this Constitution as compared with the Constitution of the United States. Because it is in this Constitution, and it is not contained in the Constitution of the United States, this clause has been referred [start page 1019] to over and over again as one of the broad declarations clearly made in this Constitution, but which has got to be inferred from the Constitution of the United States. It is a broad declaration that was necessary for the foundation of the Bill, and which makes any superstructure that may be built upon it absolutely safe and secure. I hope that, on consideration, this clause will be allowed to stand as it is. If limitations are necessary, let them be put in as limitations, but let the broad declaration in this clause remain. Mr. DEAKIN (Victoria).-I think it is fortunate that we have had the advantage of hearing one of the legal members of the Convention say all that possibly can be said in support of the terminology of this clause. The vagueness of the reasons offered by the honorable member who has objected to the proposed amendment, on the ground that we do not know what may happen, should be noted. He is not able to point to anything that would happen which would not be met by the proposed amendment. It is ample to meet the case. Perhaps the honorable member was not present when the leader of the Convention called attention to the fact-and it appeared to me a final answer to all his objections-that this clause requires to be read with clause 95, and that, taken together, they afford complete protection against any possible interference with freedom of trade and intercourse. Clause 95 puts an absolute prohibition on anti-federal action by any state, and might be considered in itself ample for all requirements. It sets forth thatAny law or regulation made by the Commonwealth, or by any state, or by any authority constituted by the Commonwealth, or by any state, having the effect of derogating from freedom of trade or commerce between the different parts of the Commonwealth shall be null and void.
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That in itself, it appears to me, is ample for all requirements. At the same time, to meet the view, which the honorable member very reasonably expressed, that in this Constitution we should put beyond all doubt a prohibition that is a matter of inference and construction in the American Constitution, we add, in addition to clause 95, this provision. With the verbal amendment suggested nothing is withdrawn from the force and efficacy of the clause as it stands. This clause will put beyond all question the determination of this Convention, and of the future Constitution, that trade and intercourse in all parts of this Commonwealth shall be absolutely free. And that end being attained by the amendment, what need have we to go beyond that, as evidently we do, by using words in this connexion which elsewhere in the Bill are used with a wider jurisdiction? Why use a vague expression which may possibly seriously interfere with state administration in some minor departments, which have been up to now, and always will be, expressly left to the states? Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state and state, is it not necessary that the Commonwealth itself should have some power for the restriction and the regulation of trade? The words "absolutely free" are infinite in their application, and they seem to me to take away from the Commonwealth the power to restrict and regulate trade within the confines of the Commonwealth. Mr. DEAKIN.-We are not at those words yet; we are considering the words throughout the Commonwealth."
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Dr. COCKBURN.-But the whole clause is before the committee, and it goes a great deal further than any of its advocates clearly intend. I support the remarks of Mr. Isaacs in urging that some such limitation should be inserted, not only with the view of seeing that the clause goes no further than is desirable in the restriction of the states, but also in order that it shall not tie the hands of the Commonwealth itself, but shall allow it to impose such restrictions and regulations of trade throughout the Commonwealth as may, from time to time, in the interests of the people, appear to be necessary. Mr. BARTON (New South Wales).-In answer to my right honorable friend (Sir Edward Braddon), I have no hesitation in expressing my opinion. I thought I had expressed it clearly before. There is at any rate the possibility, even taking this clause with other parts of the Bill, that it might be so read as to interfere with a state's own right of regulating that kind of internal trade which is quite unconnected with interstate commerce. It is for that reason that I thought there was so much force in the remarks of Mr. Isaacs. I should not like to be taken to concur in any suggestion that it is intended that there shall be any power in the Commonwealth to restrict trade in any part of the Commonwealth. I think it should be laid down in terms which no Parliament can over-ride that there shall be absolute unrestricted trade between all parts of the Commonwealth. Mr. ISAACS.-Does the leader of the Convention propose to take the sense of the committee upon the substance of the words-that the words "throughout the Commonwealth" be left out, and that the words "between the states" be inserted-leaving it to the Drafting Committee to redraft the clause afterwards? Mr. BARTON.-Yes; I will take the vote of the committee upon that matter. The amendment suggested by the Legislative Assembly of Western Australia, to strike out the words "throughout the Commonwealth" and to substitute the words "between the states" was agreed to.
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40 While on the one hand the Framers were very concerned that laws enacted by the commonwealth would be throughout the Commonwealth equally applicable on the other hand they also made clear that other then directly relating to trade and commence they did not want the Commonwealth to interfere with trading and commerce within a State. A similar approach has to be taken with companies, that albeit the Commonwealth may legislate for the structure of companies, it is another matter to purport constitutional powers being used within this as if companies legislative powers can override the objection the Framers had for the Commonwealth to interfere with Industrial disputed within the borders of one State. It also ought to be noted that the Framers warn against the courts to interpret the constitution as to the US constitutional framework, which they made clear they didnt want to be applied. Yet, far too often the High Court of Australia precisely does this!
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Mr. BARTON.-No. If they find that a rate is deliberately fixed low, not for the mere purpose of internal development, on the ordinary principle of diminishing the rate in proportion to the length of traction, but of wrongfully preventing [start page 1251] inter-state commerce from taking its ordinary course, the allowance of that rate is a matter which they can consider. A decision which says that they cannot interfere with a rate because it is low is not a decision which abnegates their constant duty to prevent preferences between the states. I do not think any decision can be found which will negative that view. Under the clause as it stands, the prohibition of preferences extends only from the ports of one state to the ports of another state. If it is wrong to give a preference to the ports of one state over the ports of another state, it is equally wrong to give a preference to a part of a state over a part of another state. I have endeavoured to correct that anomaly. On the other hand, the second part of the clause, making void any law or regulation made by the Commonwealth or by any state, or by any authority constituted by the Commonwealth or by any state, having the effect of derogating from freedom of trade or commerce between the different parts of the Commonwealth, may mean more than the Convention intends. At the instance of the Hon. Mr. Isaacs we amended clause 89 to make it read that on the imposition of uniform duties trade and commerce, whether by intercolonial carriage or ocean navigation, between the states should be absolutely free. The words used before were "throughout the Commonwealth." What we desire to protect is inter-state trade, and we recognise that the internal regulation of trade must be left in the hands of the individual states. That is a principle on which we are agreed. Hansard 22-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.I do not think we need go further than that, because the provisions of the Bill are ample to sufficiently guarantee the rights of the states. Every state will have full control over its traffic, except to the extent that it will not be able to usurp the powers of the Commonwealth in respect to trade and commerce. And are we going to allow those powers to be usurped? That question, I am sure, would meet with a direct negative all round. But if we go further and put in a limitation or proviso, we are simply increasing the power of a state to usurp that power of regulating trade and commerce, which should be confined to the Parliament of the Commonwealth. For it is only by that authority that trade and commerce can be kept free and equal. I suggest, therefore, that the amendment which I have outlined may be placed in this Bill. Sir John Downer agrees with me that the trade and commerce clause is quite sufficient for the purpose, but he would insert a few words to inform the public. I meet that argument again by asking whether it is not a danger to insert such words when they may alter the entire legal construction of the Constitution? I suggest simply inserting such a provision as I have suggested to prevent the Commonwealth from dealing by way of preference with any state or part of a state, and that we should leave the Constitution in that respect in the same way as we have left it by saying that taxation shall be uniform and equal throughout the Commonwealth. Mr. GORDON (South Australia).-I think the best argument we could have for inserting in the Bill what my honorable and learned friend calls a placard is supplied by the long and legal speech which he has just delivered to show us that it is not necessary.
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[start page 1325] Mr. BARTON.-My speech was not so long as that of the honorable and learned member. Mr. GORDON.-Then I will call it a little more laboured. Mr. BARTON.-Everything is easy to my honorable friend.
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Mr. GORDON.-I think that the honorable and learned member has shut his eyes to the fact that the circumstances of these colonies, so far as the railways are concerned, are different from the circumstances of the American colonies when they federated. Mr. BARTON.-Perhaps my honorable and learned friend would prefer to answer me after the tea adjournment. And
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Mr. TRENWITH.-Well, we are a present fighting as independent states. That is to say, we are doing our best for our respective states-for the states we have the responsibility of managing. We are not at present united. But we are actuated by the federal spirit, and claim that immense advantages will come from the adoption of free and unfettered intercourse between the various states of the Commonwealth. Can any one say [start page 1346] that we have unfettered intercourse when you allow all the resources of a p255 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
powerful state to be devoted to attracting some of the trade within the Commonwealth from some particular point to which that trade would otherwise go? If we are to have it, we must be permitted to have it on fair and equal terms. We must not be expected to be content to juggle with the terms "differential" and "preferential." We will not be content to see the interference with trade by one system of rates permitted simply because those rates are called differential, and do not apply specially to traffic coming from beyond the boundary of a colony, and a similar kind of interference prohibited because it is brought about by rates termed "preferential."
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The above quoted reasoning would make no sense at all if the Framers of the Constitution purportedly had intended to give unlimited powers to the Commonwealth of Australia in regard of subsection 51(xx), however, as can be noticed it was made clear that the subsection was to be considered with other provisions of the Constitution.
Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sub-section XV.-Banking, the incorporation of banks, and the issue of paper money. Mr. ISAACS: Anticipating another subsection, I notice that insurance, including State insurance, is to be dealt with by the federal authority. As regards banking, I believe in South Australia there is a State bank. It will be a question to seriously consider whether the Commonwealth is to deal with purely private banks, and not State banks. I understand that it is intended to have uniformity of legislation in banking matters throughout the whole of the Commonwealth, that financial institutions shall know exactly what laws they have to comply with, and that the laws shall apply equally over the various parts of the Commonwealth. But where a State Bank carries on business purely in its own State, I desire to know why that should come under the operation of the Commonwealth? Dr. COCKBURN: I am glad that this matter has been called attention to. It is a very serious one to those colonies which want to go ahead. Mr. GLYNN: How is that? Dr. COCKBURN: Because the federal authority may take the power out of the hands of a State to carry on the business of banking. This would be a concurrent power, and in its exercise in such a matter as the issue of notes, for instance, it would be very easy for the Federal Parliament by implication to compel any State to discontinue it. It [start page 779] might also explicitly forbid the States to undertake it. A hostile majority in the Federal Parliament, which might be Conservative, might readily do this. The exercise of concurrent powers is a difficult question in a Federation. We should carefully scrutinise this power before giving it over to the federal authority. Sub-section as read agreed to. Sub-section XVI.-Insurance, including State insurance extending beyond the limits of the State concerned. Mr. HIGGINS: I desire to understand whether by the word "State" here is meant a particular colony, or is it used in the general sense-the State as distinct from the individual? I apprehend that the word "State" means a particular colony, but I confess I do not understand the meaning of the term. Mr. O'CONNOR: This is a new subsection. It proposes to include insurance, and I think it is a very desirable inclusion amongst the list of powers. However, it involves a principle. The part the hon. member referred to is for this purpose: It was suggested that colonies might undertake State insurance, as was done in New Zealand, and it was held that State insurance should not come under the general laws. From that view I entirely dissent; but this clause was drawn in accordance with the views of the Constitutional Committee. The hon. member will see, therefore, that the words "State insurance" simply indicate that whereas a State within its own boundaries should have control of all its insurance business, and the regulation of its insurance under any State system, so far as it deals with the people within its own boundaries, any part of its system that proposes to deal with people beyond its boundaries should come under the general laws. "State" is used to designate colony. I should support the hon. member if be moved to strike out: Including State insurance extending beyond the limits of the State concerned. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p256
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Mr. ISAACS: It would include all insurance then? Mr. O'CONNOR: Yes; and I think it ought to. If a State chooses to go into the business of insurance-I do not say it is wise or not-I do not see why any departure should be made as to the uniformity of laws with regard to insurance. The State should be subject to the same limitations as the individual if it goes in for State insurance. It would be absurd to say it should not. Supposing every State adopted a system of State insurance, according to this exception each State would be able to adopt a different method, so long as it kept within its own boundaries, and you might have five different Systems of insurance outside the general law. Mr. ISAACS: Is that not States rights?
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Mr. O'CONNOR: No; because you start with the proposition that general insurance laws must be the same throughout the colonies. Again; Supposing every State adopted a system of State insurance, according to this exception each State would be able to adopt a different method, so long as it kept within its own boundaries, and you might have five different Systems of insurance outside the general law. And No; because you start with the proposition that general insurance laws must be the same throughout the colonies.
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This clearly indicates that when the Framers of the Constitution were referring to state insurance (as they did with banking, corporations, etc) they were referring to having the same system/method as to the operation of insurance (banking/corporation and not at all as to, so to say, bolts and nuts of workers being employed. Now, if the High Court of Australia persist in that Subsection 51(xx) did in fact give all the powers to the Commonwealth of Australia to dictate under corporation laws what can or cannot be done, then it would clearly have also all the powers to dictate if Sunday newspapers could be published or not, irrespective of any religion, as the State law for so far it would prohibit it would be subordinate to Commonwealth legislation. Then the Framers of the Constitution must be deemed to have not known what they were doing and perhaps they had done better to first seek the counsel of the judges now at the High Court of Australia as they appear to know better what the Framers of the Constitution intended. Otherwise, it must be accepted that the High Court of Australia made one gigantic blunder in regard of subsection 51(xx) and should restore this matter and basically send the 14-11-2006 judgment, so to say, to the scrap heap. As the Framers of the Constitution made clear any religious conduct that was unacceptable to society could be dealt with under criminal law of a State. We also find that the Framers of the Constitution make clear, time and again, that the Constitution is different then that of the US Constitution, as such any judgment pertaining the US Constitution may not necessary be applicable to the Australian Constitution. Yet, we find that John Howard is stirring religious controversy such as seeking to incite Muslims to turn against another Muslim because of comment the man made which John Howard seem to disapprove off. Well, this Muslim-phobia (for the record I do not practice a religion and as such not to be seen as a religious bias statement) should be stopped as the Framers of the Constitution made it very clear that if a man is in breach of law then the ordinary Courts will deal with the matter. The fact that John Howard perhaps might take it personally that someone may question the honesty of certain people, and considering that the term lying rodent came from his own party member and fellow Minister Senator Brandis then why on earth should a person using FREEDOM OF SPEECH be used as to ster religious divisions whereas the murderous conduct of an unconstitutional invasion somehow is not worthy to be dealt with. In my view, we lack appropriately trained constitutional lawyers who can competently comprehend certain constitutional powers and limitations, and so we lack properly trained
constitutional judges (including judges sitting at the bench of the High Court of Australia), and by this it all has become an utter mess. Hansard 16-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The service and execution throughout the commonwealth of the civil and criminal process and judgments of the courts of the states, Not that there is a different kind of law enforcement pending if a person is deemed to be unlawfully in the Commonwealth of Australia, regardless if the person is or isnt!
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The Hon. R.E. O'CONNOR: A territory would be either a state of the commonwealth, or another country! The Hon. I.A. ISAACS: The word "country" might mean an independent state. The
Hon. E. BARTON: I will keep the matter in mind, though I fancy it is all right!
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We also have to consider the error the High Court of Australia made in regard of Aboriginals and how the Framers of the Constitution appeared to me to be blamed for denying them equal rights. Just look at the con-job of the 1967 referendum that was arguable to give Aboriginals equal rights. If one were to consider Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) then the High Court of Australia appears to set out that the original version of the Commonwealth of Australia Constitution (prior 1967 referendum) was bias against Aboriginals. If anything, this just shows the failure of the judges to understand what the Constitution really stands for! Sure, the Commonwealth passed in 1909 a law for white only electors arguing that Section 30 of the Commonwealth of Australia Constitution gave that right, and the High Court of Australia approved this and also later argued that Section 41 of the Constitution no longer was a valid section as the people that were alive at the time of federation had died long ago and so the application of this section 41, the truth is that again the High Court of Australia was giving utter and sheer nonsense. The Framers made clear that section 30 of the Constitution would be subject to Section 41! Further, lets see what Barton stated at the closure of the Constitutional Convention!
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-
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This Bill also contains a provision in favour of electors, which is altogether absent from the Bill of 1891; that is, a provision for the protection of the voting right, when the right has been granted, so that no adult person who, at the establishment of this Constitution, or [start page 2468] at any time afterwards, acquires the right to vote for the Legislative Assembly in his own colony or state can be deprived of that right by any law passed by the Federal Parliament.
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Did you notice the wording or at any time afterwards, acquires the right to vote The Framers made all along clear that the Commonwealth would have no constitutional powers to deny a elector of a State the political rights to vote in a federal election! As such, the right of Aboriginals qualified to vote in State elections were secured! Now have a look at the application of subsection 51(xxvi) by any kind of legislation in regard of Aboriginals since the 1967 referendum;
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject of the Queen is co-extensive with the ordinary definition of a subject or citizen in America. The moment be is under any disability imposed by the Parliament be loses his rights. Dr. QUICK.-That refers to special races.
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Mr. BARTON.-But if he is under any disability under any regulation of the [start page 1787] Commonwealth he would cease to be a citizen, however slight that disability might be. I doubt whether the honorable member intends that. There is power by law to regulate the people of any race requiring special laws. There may be some purely regulative law passed, not imposing any special restriction on any person of that kind who may be a subject of the Queen. That regulation, if it were of the mildest character, under this definition, would deprive him of his rights. Dr. QUICK.-The regulation would have to specify the ground of disability. Mr. BARTON.-Yes; but my honorable friend says not under any disability imposed by the Parliament. Would not the difficulty be that if he were under any slight disability for regulative purposes, all his rights of citizenship under the Commonwealth would be lost?
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What is clear is, that the Aboriginals and so neither the entire electorate of the Commonwealth were ever advised that any legislation in relation to Aboriginals would cause the loss of their citizenship! So their political rights to be an elector to be a Member of Parliament! It might be stated that subsection 51(xxvi) was intended to alien coloured race, as to control their doings, such as chines gold mining in Victoria, the Afghans selling in Tasmania, etc, but then the Commonwealth could only make laws applicable to the entire Commonwealth, not for a particular State. What the Framers did, was referring to nationalities and upon that basis inserted subsection 51(xxvi) of race and referring to nationalities as being a race! Afghans clearly is a nationality identification, not a race. To the Framers, the identification of a nationality was refereed to as being a race. Albeit, when dealing with Aboriginals, the y sought to avoid this confusion by excluding them of subsection 51(xxvi) as well as to protect the Aboriginal rights to be considered equally as other Australians. Not at all what Latham CJ purported to make out of it as referred to above. Extensive reading does indicate that the Framers had misconceptions about what a race stood for. It referred to Chinese, even those born in Australia and having Australian nationality, to be Chinese. However, if it were to have related to a Chinese national that was Caucasian then the Framers clearly didnt seem to apply this, as the body of their debates seem to indicate. They had this white only racist attitude in general and as such their references were to Afghans and Chinese but to coloured races, which signify that they were basically against coloured races not a particular nationality, albeit they generally referred to this. What was achieved with the 1967 referendum was that it removed the protection of Aboriginals, and caused more harm then good, as set out in my books. Still, the problem existing is that technically Aboriginals lost the right of citizenship, so their political rights! The Commonwealth has no constitutional powers to grand State citizenship, or to interfere with it, but could in effect deny Australian citizenship by invoking any legislation within subsection 51(xxvi) for any matter, as it then would cause AUTOMATICALLY the lost of Australian citizenship. It ought to be clear that Australian citizenship has got nothing to do with Australian nationality or with naturalization. This to has been set out considerable before the High Court of Australia. The Framers made clear that unlike the USA version, they didnt want to follow as the Commonwealth would have no constitutional powers to define/declare citizenship!
Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) 1. Paragraph (xxvi), in its original form, should be understood in the context of attitudes to race and to "White Australia" which were common amongst the settlers represented in the Conventions and constituting the electors of the federating colonies. In the original draft Constitution Bill of 1891, the proposal was for a grant of exclusive legislative power to the Federal Parliament with respect to[220]:
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"The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand".
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There is uncertainty as to the initial purpose of including this power and proposing that it be exclusive to the Federal Parliament. The provision was Sir Samuel Griffith's idea[221], and it has been suggested[222] that it was based upon the unhappy experiences of Queensland with "blackbirding". This was the practice by which people from the Pacific Islands had been snatched from their homes and sold into a form of slavery in the Queensland sugar farms. Whether its inclusion was out of a concern for the victims of such activities, a desire to exclude the States from control over them or to provide the Federal Parliament with powers, in addition to the proposed power over aliens, to deal with possible unrest and expulsion, is not entirely clear. The Convention Debates, particularly those of the Melbourne Convention of 1898, show that some delegates wanted to retain power for the States, and to permit the Federal Parliament to enact, laws far from beneficial for people of minority races (such as Chinese in factories and shops[223], "Asiatic or African ... miner[s]"[224] and so on). However, other delegates regarded the prospect of discriminatory legislation on the part of the new federal polity as "disgraceful"[225] and "degrading to us and our citizenship"[226]. 2. As finally adopted, the power in par (xxvi) was not restricted, in terms, to securing the benefit or advancement of the people of a given race. In the historical context of that time such protective purposes would have been possible, eg in the case of the "kanakas" in Queensland. But so also would laws detrimental to, or discriminatory against, such people. The exclusion from the paragraph of power with respect to "the aboriginal race in any State" appears principally to have been designed to leave their regulation to the States. It may have had the effect of protecting them from any risk of the misuse of the race power by the new Federal Parliament[227]. This view of the exclusion of Aboriginals from the power was to recur in the Parliamentary debates leading to the amendment of the Constitution in 1967. Moves to enlarge federal powers for Aboriginals 3. Before 1967, there was one earlier proposal to afford power to the Parliament to legislate with respect to Aboriginals. Such a power was included in the 1944 "fourteen powers proposal"[228]. It failed to secure the approval of the electors at referendum. In 1959 a Constitutional Review Committee was established by the Parliament. One of the issues it considered was whether the Federal Parliament should have an express power to make laws with respect to Aboriginals. The Committee recommended the deletion of s 127 of the Constitution[229]. That section provided that "In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted." However, the Committee reached no agreement on the grant of special legislative powers with respect to Aboriginals[230]. In the result, a large number of petitions were presented to the Federal Parliament urging the deletion of s 127 and the amendment of par (xxvi)[231]. Whatever the original intention of these constitutional provisions, and whatever may have been the initial protective effect of the exclusion of people of the Aboriginal race from the race power, by the late 1950s, both in and out of the Federal Parliament, commentators were viewing ss 51(xxvi) and 127 (containing as they did the only references to Australian Aboriginals in the Constitution) as negative and discriminatory, needing amendment. 5. In 1964, the Leader of the Opposition (Mr Calwell) introduced a measure for the alteration of the Constitution to remove the exclusion of Aboriginals from par (xxvi) and to delete s 127[232]. He called attention to possible United Nations criticism that the Constitution was "discriminating against" the Aboriginal people[233]. The Federal Attorney-General (Mr Snedden) affirmed that all parliamentarians felt that "there should be no discrimination against aboriginal natives of Australia "[234]. He warned that the proposed change to par (xxvi) created the potential for "discrimination ... whether for or against the aborigines"[235], in response to which Mr Calwell affirmed his view that the amendment would only be beneficial for Aboriginal Australians[236]. The Bill was ultimately defeated. In 1965, the Government introduced the Constitution Alteration (Repeal of Section 127) Bill 1965 (Cth). The Prime Minister (Sir Robert Menzies) justified the exclusion of any amendment to par (xxvi) on the ground that to include the Aboriginal people in the race power would not be in their best interests[237]. However, although the Bill was passed by both Houses, the Government decided not to put it to referendum.
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p260
7.
In March 1966, Mr W C Wentworth (later the first Australian Minister for Aboriginal Affairs[238]) introduced a Private Member's Bill[239] to amend the Constitution to substitute for the race power in par (xxvi) a new provision[240]: "The advancement of the aboriginal natives of the Commonwealth of Australia".
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Mr Wentworth also proposed a new s 117A of the Constitution. This would forbid the Commonwealth and the States from making or maintaining any law which subjected any person born or naturalised within the Commonwealth "to any discrimination or disability within the Commonwealth by reason of his racial origin". The proposal contained a proviso that the section should not operate "so as to preclude the making of laws for the specific benefit of the aboriginal natives of the Commonwealth of Australia"[241]. One of the reasons given by Mr Wentworth for his amendments was his concern that the deletion of the exclusion of people of the Aboriginal race from par (xxvi) could leave them open to "discrimination ... adverse or favourable". He suggested that the "power for favourable discrimination" was needed; but that there should not be a "power for unfavourable discrimination"[242]. His Bill was supported by the Opposition[243], but it ultimately lapsed[244]. The 1967 referendum Instead, on 1 March 1967, a new Prime Minister (Mr Holt) introduced the Constitution Alteration (Aboriginals) Bill 1967 (Cth). He explained that the government had been influenced by the "popular impression" that the words "other than the aboriginal race in any State" in par (xxvi) "are discriminatory"[245]. This was a view which the government believed to be erroneous. But it was deeply rooted. It required amendment of the Constitution in a way that would give the Parliament the power to make special laws for Aboriginals which, with cooperation with the States, would "secure the widest measure of agreement with respect to Aboriginal advancement"[246]. The Government's Bill was supported by the Leader of the Opposition (Mr Whitlam). He referred to the many disadvantages which Australian Aboriginals had suffered and which needed positive federal initiatives[247]. It was also supported by Mr Wentworth. He expressed the opinion that some discrimination was necessary in relation to Aboriginals but "it should be favourable, not unfavourable"[248]. The Bill passed through the House of Representatives without a single dissenting vote[249].
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10. In the Senate, the Minister responsible for the Bill (Senator Henty) repeated what had been said by the Prime Minister[250]. The Leader of the Opposition in the Senate, Senator Murphy, met directly the argument that the exclusion of Aboriginals from par (xxvi) had been intended to be beneficial for them. He said[251]: "The simple fact is that they are different from other persons and that they do need special laws. They themselves believe that they need special laws. In this proposed law there is no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour." The Bill was also approved by the Senate without a single dissenting vote[252]. 11. There having been no opposition within the Parliament to the proposed alterations to the Constitution, it was necessary, in the procedures which followed, to prepare only the argument in favour of the proposed law to be distributed in pamphlet form to the electors[253]. The case for the "yes" vote authorised by the Prime Minister, the Leader of the Australian Country Party and the Leader of the Opposition addressed the amendments to par (xxvi) and s 127 which were to be put before the electors as a single proposal. The case, relevantly, argued[254]: "The purposes of these proposed amendments ... are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary. ... The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia". In relation to the proposed amendment to s 127, the written case said[255]: "Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p261
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rid of this out-moded provision ... The simple truth is that Section 127 is completely out of harmony with our national attitudes and modern thinking . It has no place in our Constitution in this age."
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12. In addition to the foregoing statutory argument the leaders of all of the major Australian political parties issued statements supporting the amendment to par (xxvi) and the repeal of s 127. The Prime Minister (Mr Holt), in his statement said that it was not acceptable to the Australian people that the national Parliament "should not have power to make special laws for the people of the Aboriginal race, where that is in their best interests"[256]. For the Federal Opposition, Mr Whitlam stated that the then provisions of the Constitution were "discriminatory". He pointed out the need to assist Aboriginal communities in the realms of housing, education and health, and stated that the Commonwealth must "accept that responsibility on behalf of Aboriginals". It was also vital, he argued, to remove the excuse "for Australia's failure to adopt many international conventions affecting the welfare of Aborigines"[257]. For the Australian Country Party, its Deputy Leader, Mr Anthony, explained that the amendment to the Constitution "would give the Commonwealth Government, for the first time, power to make special laws for the benefit of the Aboriginal people throughout Australia"[258]. For the Australian Democratic Labor Party, Senator Gair titled his statement "End Discrimination - Vote 'Yes'" and explained that his Party had "adopted the slogan 'Vote Yes for Aboriginal Rights'"[259]. There was not the slightest hint whatsoever in any of the substantial referendum materials placed before this Court that what was proposed to the Australian electors was an amendment to the Constitution to empower the Parliament to enact laws detrimental to, or discriminatory against, the people of any race, still less the people of the Aboriginal race. 13. The referendum was put on 27 May 1967. It was overwhelmingly approved[260]. In the history of Australian constitutional referenda, no other such vote has come close to the unique political and popular consensus demonstrated in the 1967 referendum on Aborigines. Arguments for the validity of the impugned law
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14. The Commonwealth disputed the relevance of any of the foregoing history. In its submission, the meaning of par (xxvi) had to be found exclusively on the face of the Constitution in the language in which it was expressed. At most, the history explained the hopes and aspirations of the politicians and of the Australian people. But these could no more control the meaning to be ascribed to the language of the Constitution than could equivalent extrinsic materials determine the meaning of an ordinary statute[261]. Attention was drawn to the contrast between Mr Wentworth's successive proposals and the amendments to the Constitution eventually adopted. The Commonwealth argued that had it been the purpose of the Parliament legally to forbid legislation detrimental to, or discriminatory against, Aboriginals, a group of Aboriginals or any other people on the ground of race, the Wentworth proposals (or some variant of them) would have been adopted. But they were not. In addressing the arguments of the parties, it is essential to acknowledge the force of the submissions put for the Commonwealth and the supporting interveners. They rested principally upon the language of the power conferred by par (xxvi) and upon the ordinary rule that such language should not be given a narrow or limited operation but one broad and large so as to meet all possible legislative eventualities. Historically, the power was apparently intended, at the time of Federation, to extend to legislation detrimental to, and discriminatory
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against the people of any race (other than the Aboriginal race). The deletion of the exception left, so it was argued, the essential character of the power unchanged. Most readers of the Constitution would be unaware of the Convention and Parliamentary debates. In time, few would be aware of the arguments at the 1967 referendum. They would have before them only the head of power expressed in par (xxvi). The Commonwealth argued that, even if contemporary and future readers chanced to study the historical material,
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they would find much in the Conventions and some in the Parliamentary debates which was ambivalent. Particular statements could be found which acknowledged the possibility that the race power might, perhaps rarely and exceptionally, be used to support legislation detrimental to, or discriminatory against, a people (including, after amendment, Aboriginal people) on the ground of their race.
p262
What we have is that Subsection 51(xxvi) was intended to DISCRIMINATE against a coloured race and as the Court itself acknowledged the intention in regard of Aboriginals was to make laws in favour of Aboriginals. Proper reading of the Hansard records of the Constitution Convention Debates shows that nothing of the sort was intended by the Framers of the Constitution as to allow the commonwealth of Australia to make laws to make laws to benefit a coloured race as in fact it was made clear that legislation could NOT be against the general community which by the amendment would eventuate. Again, not at all what Latham CJ purported to make out of it as referred to above.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying to the rest of the people of the Commonwealth,
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15 The issue therefore is to ask, was at the time of the referendum the electors advised that to remove the wording regarding aboriginals would alter the structure of the section and would allow the Commonwealth of Australia to legislate against the general community? I doubt the referendum would have been successful in that regard. Hence, it was a con-job referendum where, by the High Court of Australia own quotation of the matters put to the electors did not in anyway whatsoever refer to any change of application in regard of this Subsection in regard of other coloured races. Hence, it could not be accepted that therefore this was intended by the electors. Neither was there any part in the referendum put to them to seek the elector to vote to allow within this section legislation to be made against the general community, and as such it cannot then be argued that the Racial Discrimination Act 1975, against the general community is valid. We therefore have that subsection 51(xxvi) was amended to remove the wording relating to Aboriginals and by this allowed DISCRIMINATION against Aboriginals to occur and by this in the process they all lost their citizenship. It cannot be that somehow one subsection has different meaning pending as to which race it applies to and neither can it be deemed that somehow the electors accepted discrimination against themselves on a grand scale that they too were to be deprived of their citizenship and so their franchise, as like anyone else and by this in effect all subjects of the Queen would be robbed of their citizenship and so franchise and no one would be left to be eligible to vote and neither to be a Member of Federal Parliament or for that any other Parliament. Hence, in my view, despite that it might have been put to the voters in the referendum;
"The purposes of these proposed amendments ... are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary. ... The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia". In relation to the proposed amendment to s 127, the written case said[255]: "Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get rid of this out-moded provision ... The simple truth is that Section 127 is completely out of harmony with our national attitudes and modern thinking . It has no place in our Constitution in this age."
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In my view, the case to argue that Subsection 51(xxvi) discriminated against the Aboriginal race was a falsehood. Subsection 51(xxvi) protected the Aboriginal race from being discriminated against by the Commonwealth of Australia. It was a federal Constitution not a State constitution.
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As to section 127, it had no application as to the right of franchise of Aboriginals, however should have been, in my view, made a provision only to have been applicable for a few years after federation to avoid financial ruin of States with large Aboriginal populations for the first few years considering the application of quotas then. In my view, the amendment of subsection 51(xxvi) should have been placed before the people outlining what was intended in the overall. Not that there was a gross deception to the true intentions of the Federal Government as now appears to me to have eventuated. In my view, it is unacceptable to accept that on the one hand the electors desired to advance the cause for the Aboriginals and at the same time accepted that in return the Aboriginals as well as themselves could be robbed of their citizenship and so their franchise. Indeed, no sane politician is, so to say, cut his own throat to put himself in such manner out of a job. Hence, despite the question pur to the electors, it cannot be deemed right that the Racial Discrimination Act 1975 was within constitutional powers of the Commonwealth of Australia in that it was a law to discriminate on behalf not just for Aboriginals but of any race against the general community! A discrimination in reverse, beyond the ability of subsection 51(xxvi) to be applied considering the limited or narrow view of the referendum. I cannot accept that the United Nations somehow oppose the discrimination against Aboriginals but would accept discrimination against Aboriginals as to them loosing then their citizenship and so their franchise as well as anyone else of the general community. This is the problem; when you have people seeking to tamper with constitutional provisions not understanding what consequences there might flow from. Albeit at the time a barrister sought my assistance (FREE OF CHARGE) to address the constitutional issue regarding subsection 51(xxxvi) I had not had the benefit to read let alone to consider what was stated in Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) I had nevertheless given my views that subsection 51(xxvi) did not allow for any Hindmarsh Bridge to be enacted in that it was not a law against a coloured race and would be harmful to Aboriginals who were, say, residing in major cities whom had no connection with the building of the bridge yet would still be robbed of their citizenship and so franchise because of the legislation. I did not have at the time any material as to why subsection 51(xxvi) was amended, and having read now the Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) judgment it does not alter my original views one of iota. No constitutional provision can have a double standard that it operates in regard of one race one way and in regard of another race another way. Whatever the ill conceived advise might have been from the UN it was immaterial, as I view it, as the United Nations had no say as to the Constitution as was enacted in 1900. And, if anything, its interference may very well have caused the misconception and the constitutional dilemma now faced in regard of Aboriginals and so the rest of the population. In my very successful case before the County Court of Victoria I did challenge also the validity of the Racial Discrimination Act 1975 on constitutional grounds and this was also stated in the Section 78B NOTICE OF CONSTITUTIONAL MATTERS and that upon this no person in the general community and neither any Aboriginal had citizenship and so neither franchise. My numerous constitutional grounds against various legislative provisions remained UNCHALLENGED and hence for this I was not just successful in my cases but also had a legal verdict to prove this. In my view, the best option would be to have subsection 51(xxvi) restored to its original version and then have a new subsection added that specifically refers to Aboriginals and for this also Torres Strait Islanders and so as to make clear that the Aboriginal cause is different then that
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which might be desired against other races. In my view, the entire subsection 51(xxvi) ought to be deleted but that is my personal view and it not the issue as to what is constitutionally appropriate.
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be deducted. Mr. O'CONNOR: The amendment you have carried already preserves their votes.
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The statement The amendment you have carried already preserves their votes
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Refers to Section 41 of the Constitution that already preserved the votes of any Aboriginal who at the time of the federation had obtained State franchise as to be able to vote in federal elections. And, at the time of federation Aboriginals who had (colonial) State franchise did vote in the first federal election as even the Australian Electoral Commission now amidst to on its website. Again
It is only for the purpose of determining the quota.
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As such, it was not at all directed per se against Aboriginals to discriminate against them but it was for financial purposes as otherwise the federation may not have eventuated had the States, such as South Australia been heavily burdened to pay per capita to the newly formed Commonwealth of Australia a levy. (Consider the breadwinners issue referred to above also)
Hansard 6-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Hon. F.W. HOLDER: We do not want any such position. South Australia wants her own, if she can get it. She is going to get as near to her own as she can; but she does not want one penny belonging to anyone else. I think I may say the same for Tasmania. We all of us want our own, no more and no less. That being so, it is apparent at once that neither 40 per head, nor any other amount per head, equal over the whole commonwealth will do. You appear to wipe out the surplus, but you do not wipe it out at all. You simply provide that there shall be a return equal per head over the whole population at once throughout the commonwealth. Suppose it were proposed that at once a per capita distribution of the surplus should take place, would that be accepted? Do not even the representatives of Tasmania themselves argue against the inequity of such a proposal? Is it not apparent to us all, whatever may be possible in the future, that when things have settled down, and the new tariff has been some years in operation, it is simply out of the question that we should begin right away with an equal per capita distribution, which is what this scheme of taking over it certain proportion of the debts amounts to if you go to bedrock in considering it. Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal natives shall not be counted. Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to be debarred from voting. Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal population is too small to affect that in the least degree. Mr. BARTON: It is only for the purpose of determining the quota.
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Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be deducted. Mr. O'CONNOR: The amendment you have carried already preserves their votes. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p265
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up the people. I can point out one place where 100 or 200 of these aboriginals vote. Mr. DEAKIN: Well, it will take 26,000 to affect one vote.
Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that when we come to divide the expenses of the Federal Government per capita, if he leaves out these aboriginals South Australia will have so much the less to pay, whilst if they are counted South Australia will have so much the more to pay.
This proves that Section 127 was not particularly against Aboriginals but was rather to reduce the monies payable, such as in regard of South Australia, having a large population of Aboriginals. 10 Exercising constitutional powers just be appropriately applied. While I can accept for purpose of law enforcement the Navy might detain a person or persons of an illegal fishing boat to be able to transport the person to the nearest location to be handed over the appropriate State law enforcement force, it cannot, as it did keep people in a unseaworthy boat of Ashmore island, regardless it was on orders of John Howard, as this was unconstitutional and illegal detention and likewise the towing of an unseaworthy boat away from safety was unconstitutional and illegal. It had nothing to do with enforcing Commonwealth law relating to the defence forces but was to use armed forces in an unconstitutional manner for political purposes. John Howard did not have any constitutional powers to override constitutional embedded principles and neither to overrule State and Territorial laws that requires that no unseaworthy boat is permitted to leave. Yet, I have yet to discover in any judgment of the High Court of Australia condemnation upon John Howard and his cohorts to have acted in flagrant disregard for constitutional and other legal provisions and having manipulated the defence forces to carry out his political intentions to better himself in a purported federal election rather then to uphold constitutional provisions and relevant laws. Anyone who were to argue that because the USA declares war against another nation or simply go out and murder people in their own country because their cowboy attitude of shoot them up might be dictating their conduct then arguing that because of some ANZUS or other treaty then the Commonwealth of Australia likewise can go to war disregarding constitutional requirement and limitations in my view, so to say, has a screw loose. Then consider;
Re: COMMANDER CHRISTOPHER BOLTON, CAPTAIN H.M.A.S. "PENGUIN" AND THE HONOURABLE KIM CHRISTIAN BEAZLEY, THE MINISTER OF STATE FOR DEFENCE Ex Parte DOUGLAS BEANE F.C. 87/012 High Court of Australia
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The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate . 12. In the absence of statutory provision to the contrary, a person in Australia who has not breached Australian law is entitled to his freedom: see Brown v. Lizars (1905) 2 CLR 837 at pp 851-852, 861 and 867-868 and Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 at pp 299-302 and 306-307. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p266
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Lord Denning M.R. in Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated the common law in terms which I would respectfully adopt:
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" ... every person coming from abroad, as soon as he sets foot lawfully in this country, is free; and, so long as he commits no offence here, he is not to be arrested or detained for any offence that he may have committed in some other country. If any attempt were made to arrest him in order to surrender him to that other country, he would at once be entitled to be set free. The writ of habeas corpus is available to him for the purpose. In the absence of an extradition treaty, it is no answer for the Crown, or any officer of the Crown, to say that he wishes to send him off to another country to meet a charge there." 2. The laws relating to the return and deportation of prohibited immigrants and the deportation of aliens and laws relating to extradition for trial on criminal charges qualify the general freedom from arrest and surrender to foreign authorities but, unless a provision of such an exceptional law applies, the common law and the Habeas Corpus Act 1679 deny to the Executive governments of this country, whatever inducement a foreign government may offer or press, any power to arrest and surrender an Australian resident into the custody of foreign authorities. Unless there be overriding statutory authority for the arrest and surrender of an Australian resident, he is entitled to a writ of habeas corpus to obtain his freedom here: Ex parte Besset (1844) 6 QB 481 (115 ER 180). To justify such an arrest and surrender, there must be a statute or subordinate legislation (Lloyd v. Wallach (1915) 20 CLR 299; Ex parte Walsh (1942) Arg LR 359) enacted in exercise of an available legislative power (Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at p 195) which abrogates or suspends the right to habeas corpus: R v. Clift; Ex parte P (1941) SASR 41, at p 46. The question in this case is whether the prosecutor's right to a writ of habeas corpus has been abrogated, in the particular circumstances of the case, by the provisions of Pt IXA of the Defence Act 1903 (Cth) which were inserted by s.8 of the Defence Acts Amendment Act 1981 (Cth) ("the 1981 Act") and which came into operation on 15 August 1983. 4. The law of this country is very jealous of any infringement of personal liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right: R. v. Cannon Row Police Station (Inspector) (1922) 91 LJKB 98, at p 106.
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See also;
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
50 There simply is no constitutional powers for the Federal Attorney-General to authorise Federal Police, Immigration staff, ASIO or other federal officers to operate within the sovereignty of any State in the manner as seems to be now occurring by unconstitutional legislation. It underlines the need for an OFFICE OF THE GUARDIAN as the GUARDIAN OF THE CONSTITUTION, in my view, it incompetent to do the job required, without the impartial source to assist in a better understanding as to what constitutionally concepts, embedded principles, prohibitions, powers and limitations stand for. (See also below about issue of the OFFICE OF THE GUARDIAN.)
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* Gary, I am getting a bit confused here, and perhaps you can clarify this matter not just for me but also for the reader. **#** Off course, just what is the confusion about? 5 * Well, if the Commonwealth of Australia can pass legislation as to Aboriginals but cant legislate even so the referendum approved of laws to be made then how does this work? **#** I will explain this. In Kartinyeri v The Commonwealth [1998] HCA 22 (1 April 1998) the Court was faced with the building of a Bridge in the State of South Australia and not that of a building of a bridge in Northern Territory. * What is the difference besides geographically location? 15 **#** Well, South Australia is not a territory of the Commonwealth of Australia but a limited sovereign State. * Why limited? 20 **#** It is sovereign in regard of all legislative powers it retained but not sovereign in regard of legislative powers that were transferred for purpose of federation, by referendums an and subject to (that is if it was constitutionally valid) referrals of powers. It doesnt matter if this deals with Aboriginal matters, Industrial Relations or other matters as it remains to be in all legislative powers incidents the same. So, the Commonwealth of Australia has legislative powers but only for the whole of the Commonwealth for all matters governing ordinary legislative powers as contained in the Constitution, such as those in Section 51, however there is a certain reservation to this. Any legislative powers that have been referred by a State, or some but not all States are not necessary legislative powers for the Commonwealth of Australia for the whole of the Commonwealth and so are legislative powers the Commonwealth of Australia can use for only those States which have referred the particular legislative powers to the Commonwealth of Australia, have adopted it or where within Section 122 of the Constitution the Commonwealth of Australia already had legislative powers. However, to make it more confusing, if in the end legislation referred to the Commonwealth but was adopted by all other States and already applicable in the Territories then it would become before Federal law of the kind that must be for the whole of the Commonwealth. Where however the Commonwealth of Australia within Section 122 exercises quasi State powers (for so far they exist) then the Commonwealth is not bound to make laws for the whole of the Commonwealth as it only relates to a specific Territory. As such a bridge could have been build for Aboriginals in the Northern Territory within the Section 122 powers not because of having anything to do with Aboriginals but because of sovereign of the Northern Territory. I am. So to say, gobblesmak ked why all those politicians and lawyers went out on a limb, so to say, to amend Subsection 51(xxvi) to remove the reference to Aboriginals as the Commonwealth of Australia could have used its Section 96 powers to grand to the relevant State monies which the State then within its own powers could have used for Aboriginal purposes. As such, had the Commonwealth of Australia pursued to build the bridge in South Australia by granting monies to the South Australia government for purpose to build a bridge, but not being conditionally upon Aboriginals usage, as since the 1967 con-job referendum this no longer was possible, then the bridge could have been build. That is if the State of Western Australia would have desired to have it build in the first place. * Does the same operated in regard of Industrial Relations, corporations matters, etc?
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**#** No difference at all. The commonwealth of Australia as sovereign of the Territories (on behalf of the States) exercising powers could therefore regulate the way corporations are to be registered. It then has its powers also to apart of the corporations powers legislate the working conditions of those working in the Territory. It could in fact within Section 122 apply different legislation to different Territories as each Territory is a sovereign area upon itself. It was for this also that when John Howard proposed to sell of POINT NEPEAN, in the state of Victoria for about 500 million dollars and Premier Steve Bracks offered a mere 74 million dollars I wrote to John Howard , and forwarded a copy to Premier Steve Bracks, that the Commonwealth of Australia could not sell the land comprising POINT NEPEAN to private developers unless it was prepared to maintain POINT NEPEAN as a TERRITORY and have its own law enforcement, planning legislation, building legislation, etc, etc, as State laws had been extinguished when POINT NEPEAN became exclusive federal territory. John Howard then subsequently announced that he would not sell the lands but would lease it. I then pointed out that the Commonwealth of Australia could not lease the lands as it could only use the land for the purposes for which it had acquired it or for other Federal purposes. It should be kept in mind that it was never intended by the Framers of the Constitution that the Commonwealth of Australia could be a competitor against the States, and so where there is any notion of competition then the Commonwealth must fail. * Moment, what about Section 109? **#** That is not relevant as such, as the Commonwealth of Australia is bound to make laws for the peace, order, and good government and it was not created to become a competitor against the States but to represent the States in a unified manner.
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25 * If I may ask, how do you establish competitive conduct by the Commonwealth of Australia? **#** Well, take for example the usage of WOOMERA where it is leased out by the Commonwealth of Australia to let Japan, The Netherlands, and many other countries use its facilities to launch rockets, etc. This is in fact unconstitutional as the Commonwealth of Australia acquired the land for Commonwealth purposes and not for other nations to exercise upon it. The moment it leases out the territory for non-Commonwealth purposes then it is unconstitutional. * How can it then be that they can lease out property in the Northern Territory? 35 **#** That is because that is a quasi State not at all obtained for Commonwealth purposes but it was separated from South Australia and retained its own common law structure by this. Also. Anyhow, the way it is that John Howard ended up not leasing it either, as I understand it, but handed POINT NEPEAN back to the State of Victoria and paid about 5 million dollars for a clean up. Steve Bracks having received a copy of my correspondence to John Howard subsequently withdrew his 74 million dollar offer. People in Victoria then argued that he did a backflip, but they were not aware that I had written in regard of the constitutional position if it all. * Did anyone give you credit for this? **#** No, neither did they do in the Queensland Court of criminal appeals when it basically word for word quoted from my book INSPECTOIR-RIKATI on CITIZENSHIP the reasons of overturning the convictions of Pauline Hanson and David Ettridge, but then again neither do others when they successfully win their cases. Liam McGill is a clear example in his paternity case where in fact I was assisting him with his case but as soon as he won he was in the news
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claiming he had done it all by himself. Well, when then he engaged a lawyer for the High Court of Australia case I made clear he had done is himself, so he had claimed, then I wasnt going to get involved. 5 * Out of spite? **#** Nothing to do with that. The man lied to the people and claimed it as being his own work, even so one of the judges during the case in fact referred to me that I had indeed sought to follow the proper procedure and his former lawyer had wrongly advised him, and as such there can be no doubt that I was assisting Liam McGill and the Court had recognised this itself. My issue is that he was dishonest to claim the credit for himself. If he had not claimed for himself and left it unanswered then it would, so to say, have been no skin of my nose, but I dont like it when all the hard work I have put into it is being claimed by others. Likewise that with Pauline Hansons case I published on 1 December 2003 a book INSPECTOR-RIKATI on PLEASE EXPLAIN A book on CD political and legal questions ISBN 978-0-9751760-0-9 was ISBN 0-9751760-0-5 20 It contains copies of correspondences, such as of the Queensland Attorney-General admitting that none of the issues I had raised were by any parties placed before the various courts, not even before the High Court of Australia. As such, I viewed that Premier Peter Beatty (through the States lawyers) had concealed from the High Court of Australia relevant details/information and the High Court of Australia then refused the application, however because I managed to pass on material to Pauline Hansons sister urging her to place it before the Court of Criminal Appeals it was so done and the result was the appeals succeeded. Anyhow getting back to the legislative powers, the Commonwealth of Australia therefore may or may not have complete legislative powers depending upon how it is obtained and to what extend. If only a few States refer (that is constitutionally validly so) legislative powers then the Commonwealth of Australia is not legislating as under its general legislative powers but is legislating as representing the sovereign of the particular State or States who have referred legislative powers only, and as such can therefore legislate upon the reference of legislative powers in regard of those States who referred the legislative powers and for those who adopted it in special terms to those States provided it does not involve all States. This, as the moment referred powers covers most States and all other States have adapted it then it is no longer an exclusive legislative power but become an ordinary general power for the whole of the Commonwealth. As such, every piece of legislation by the Commonwealth of Australia should really be identified under which constitutional power it was enacted. It is absurd to expect the High Court of Australia to elicit from the legislation under which heading it might fall. That is not what the purpose of the High Court of Australia is for and to do so would make the Court not being the judicial arbitrator but rather a political tool for the federal government to do its dirty work so to say, to find some way to legally justify its legislation. I recall a case one where I pursued an application in the Supreme Court of Victoria, and used the former application of the opponent as a basis. The judge then pointed out that I could not succeed under that particular heading and it made no difference if the opponent previously had done so. His Honour made clear the onus was upon me to prove the Court had jurisdiction and so under which heading. As I never had expected this kind of response, as I viewed then that if the other party could use it then why could I not also, but I had to recognise that the Court in the circumstances acted appropriately and could not invoke jurisdiction where it had none within that particular legislation I relied upon and previously the opponent had relied upon.
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* Are you meaning that it was for the Commonwealth of Australia to point out to the Court within which Section it had enacted the legislation? 5 **#** That is correct, the onus was upon the Commonwealth of Australia to set out which part of the legislation was under which constitutional legislative power. * If I may about the industrial relations legislation how does this then work out? 10 **#** Well, the issue ought to have been what section fell under which heading of constitutional powers. Instead of the judges guessing it the Commonwealth should have indicated so. For example, it should have grouped the various sections which it deemed fell under corporations powers, which it claimed fell under it general legislative powers for the whole of the commonwealth, which fell under the heading of section 122 and which fell within the limited referred legislative powers. * Oei, that is some division there. **#** Well, if the Commonwealth of Australia invoked legislative powers under its general legislative powers within the provisions of subsection 51(xx) then it could not rely upon any allege referral of powers for the State of Victoria or for that matter its legislative powers within section 122 of the Constitution as it was to be a general power. If however the legislation excluded Victoria from the general legislative powers then it indicates it was not a general legislative power at all under the heading of subsection 51(xx) but rather was purport ed to be so. You cannot have a legislation used under the general legislative powers of any subsection not being applicable to some State or Territory, as the moment you do so, being it because of referred legislative power, then it no longer can qualify as being a general power within section 51. Therefore if the legislation was enacted but excluding the State of Victoria (because of the referred legislative powers) then it clearly was not a general power exercised within subsection 51(xx) as the referred powers of industrial relations can have no bearing upon the exercise of general legislative powers within subsection 51(xx) as to do so would rather signify that in fact the was no use of the general legislative powers within subsection 51(xx) but rather that it was a power of subsection 51(xxxv) but for legal trickery pursued to be within subsection 51(xx). What ought to be clear is that the referral of legislative powers by the State of Victoria (apart of if this was constitutionally valid) should have played no part in any legislation purportedly enacted within the confines of subsection 51(xx). The Commonwealth of Australia by referring to the reference of legislative powers within subsection 51(xxxvii) for purpose of subsection 51(xxxxv) acknowledged that the exercise of the legislation was for industrial relations purposes and nothing to do with the subsection 51(xx) general legislative powers. In my view, it would have been wiser for the Commonwealth of Australia to have legislated within the provisions of subsection 51(xxxv) for so far it could using also its own Section 122 of the Constitution sovereign territorial powers as well as the (if so constitutionally validly referred) industrial powers of any State and then have sought other States to adopt this legislation as to make it a general legislative power. * Could not like the Australia act all States have referred their legislative powers? **#** As I have explained so often to you, if you were not asleep, and the Australia Act 1986 (Cth) is a clear example, there is not constitutional power for all States to refer legislative powers to the Commonwealth within Section 51(xxvii) and neither was the Australia Act 1986 provisions anything that could be deemed being a matter in dispute by some States.
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* Look, you do not need to be offended about me asking this again, as the Reader may not have read our other books that already have been published and as such I am merely pretending that I dont know and so ask the question again for the sake of the Reader to get tome grip on matters. 5 **#** All right, perhaps I was a bit to quick on rebuking your question, and I acknowledge that you are trying to assist the Reader in that regard just that I am a bit edgy, so to say, as I am all ready noticing that this Chapter is about 350 pages and I never intended to have it that long and need to cut out parts to reduce the volume as otherwise we have a one Chapter book. So I am trying to keep discussions to a minimum. * Excuse me, it is not better to set the facts straight then to do what you criticise the High Court of Australia so much about, failing to attend to all relevant matters? 15 Sure, but there is now a limit to what we can do, at least in this Chapter, and I am not saying I do not welcome your very helpful assistance but lets keep some material for another section and unlike the judges we do not have to set out all relevant matters in this chapter as we can published in the book on CD in more extensive manner. After all, this book to be printed will be of limited number of pages and so have to be seized down for this. Anyhow let not waste any space and time and lets go into the issue of what we are discussing and that is Industrial Relations. The Framers of the Constitution having created subsection 51(xxxv) under its own heading therefore specifically stated that anything to do with industrial relations cannot be covered with any other general provision, such as subsection 51(xx) unless it can be demonstrated that not to legislate so would injure the powers otherwise exercisable within subsection 51(xx). Not some imaginary injury but a distinct injury that it could not legislate as to the registration of corporations because of it, or it could not effect registration of companies because of industrial relations legislation by one of more States. For example, if a State had legislated under its legislative powers that no employee could work for a corporation not created in that State then it could be claimed by the Commonwealth of Australia to injure its general legislative powers to register a company within subsection 51(xx) as it would go to the heart of the ability of a corporation to operate. * Would you mind not to give the Commonwealth of Australia some possible ideas how to perhaps otherwise get around matters! 35 **#** Look, I am not seeking to argue the matter on moral grounds, unless so argued by the Framers of the Constitution, I am seeking to argue the ability of how the provisions of the general legislative powers of subsection 51(xx) could have been invoked in a constitutional manner if such event had taken place, as to show a legitimate claim of injury to the Commonwealth of Australia general legislative powers. Lets now look as the application of general legislative powers as the Framers of the Constitution intended, in particular the proceedings as shown in the Hansard records of the Constitution Convention Debates of 27-1-1898 does give an insight to some of the questions posed by the Framers of the Constitution and even their own bewilderment as to how matters were applicable, as was indicate by some Delegates.
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Mr. KINGSTON.-Yes, the New Zealand and South Australian provisions are very much alike. I think you might go further, however, as we do in South Australia, and provide for the creation of a private board by a simple agreement between the parties. I do not ask the Convention to come to any conclusion as to the mode in which this power should be exercised; but I ask honorable members to say that it is a right and proper thing 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p272
to give to the Federal Parliament the power of dealing with these questions in such a way as it may think fit whenever they assume an aspect of federal importance. The leading feature of this Constitution is that the Federal Parliament should have power to legislate for the peace, order, and good government of the Commonwealth." By what means are the peace and order of the various colonies most disturbed, and their good government threatened, at the present time? By strikes and lock-outs. Shall we not then be wanting in our duty if we do not give to the Federal Parliament power to legislate in such a way as will prevent strikes and lockouts, and enable industrial questions of the greatest difficulty to be amicably settled between the parties, upon considerations of right and wrong rather than because of the relative strength of the disputants.
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The High Court of Australias own admission, as referred to below that it never has attempted to restrict legislation to be considered within the limitations of for the peace, order, and good government, must be a condemnation to itself for having, as the GUARDIAN OF THE CONSTITUTION, disregarded this constitutional limitation. The High Court of Australia is constitutionally bound to interpret matters within the constitutional terms provided for and cannot ignore limits merely as to perhaps please the Federal Government, being it for the sake of seeking a more acceptable position for pay increase, better conditions, or whatever, as it would basically allow itself to be placed in conditions it argued against in the Forge 1996 case regarding temporary judges and that they could be, as I put it in my own words, manipulated. Time and again the Framers of the Constitution stipulated that legislative powers was to be within the limited powers for the peace, order, and good government and as such it is not for the High Court of Australia to simply ignore this constitutional limits as by doing so and confessing to always having done so allows its credibility to be questioned and so also what might be the reason for doing this. I, for one, did not notice any of the judges to address the issue if any colonial laws were still existing that were affected by the purported Amendment Act (WorkChoices) legislation. See also Chapter 007B PEACE-ORDER AND GOOD GOVERNMENT While judges over the last 100 years of so might not have bothered to research the Hansard records of the Constitution Convention Debates at all or not to the extend as I have, nevertheless it cannot by its own ignorance not to have done so deprive the States of their guaranteed legislative provisions as existed at the time of federation. None of the judges appear to me to have considered this issue and as such none of the judges have adjudicated upon this matter in an appropriate manner. The provisions of Section 109 were referred to but not considering possible existing colonial laws. Where it comes to the debates about aliens the Delegates themselves are puzzled what is the proper course as different views emerged about the application of what is now Section 51 of the Constitution legislation by a State versus Federal legislation. What is however clear is, that there was a clear opposition to give legislative powers to the Commonwealth of Australia regarding State internal affairs regarding industrial relations and for this consider their statements made and intentions expressed it would be an absurdity to read into subsection 51(xx) that it included powers the Framers held fell within the Industrial Relations powers.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us give power to the states to make new laws which will create new difficulties and complications.
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Also should be kept in mind, as many quotations below indicates, that even for federation purposes existing contracts were considered and as such it would be absurd to accept that companies could have entered in commercial contracts upon the basis of valid State legislation and then suddenly the Commonwealth of Australia by its enactment could cause the company to become bankrupt, due to legislative changes that make fulfilling existing contract financially impossible. Likewise, workers who had entered into employment and upon this engaged in mortgage and other financial contracts upon valid State legislation would then be send bankrupt
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for no fault of their own but because of the Commonwealth of Australia legislating in defiance of reasonable business practices. Why on earth the judges never considered this issue is beyond me. No business could act with confidence where their very security would be undermined. Indeed, the Framers of the Constitution opposed to allow retrospective legislation as to turn a honest man into some criminal by retrospective legislation. Yet, somehow the High Court of Australia, the GUARDIAN OF THE CONSTITUTION has permitted the Commonwealth of Australia to vandalise business security. Many companies quite for work in other countries and it can take years before eventually they may be awarded a contract. They spend tends if not hundreds of thousands of dollars to estimate projected cost and this based upon existing State law, where applicable. It would be absurd to accept that some building contractor, having entered in to building a large office complex and have done to on the security of State laws, then suddenly might be faced with the Commonwealth of Australia deciding to legislate and may set conditions that would be devastating to the builder and may even cause him being prevented to fulfil his contractual obligations and also cause his financial collapse. Common sense alone ought to have given the judges the understanding that no one could be allowed to be some business terrorist to change conditions as if it has all the powers to do so disregarding it can only make legislation for the peace, order, and good government. Why none of the lawyers involved in the cases that were before the Court raised this issue also ought to be questioned. After all, where I am not even formally trained in legal matters but achieved my knowledge by self study, then surely lawyers who are earning large amounts of moneys and have their profession to litigate constitutional issues should have been competent enough to raise this issue before the court.
Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The matter reminds me very much of the story of "Ginx's Baby." After they had been squabbling about the "territorial rights" of that unfortunate baby until it had been kicked overboard, the writer concluded with these extraordinary words, "Good God, what has become of the baby?"
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The same might be stated where the very people who are the centre of the issue have been totally ignored. Where Commonwealth law in effect have the result to act retrospectively against existing contracts that were made at the time under valid State laws then this too ought to be considered that the legislation must be deemed for this to be null and void.
Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill, there are several clauses not quite in their right place in it, and it would be well to alter their order. The Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses. With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of Statutes," 1st edition, page 192, this passage: It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts, that the presumption against a retrospective operation is strongest. Every Statute which takes away or impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus the provision of the Statute of Frauds, that no action should be brought to charge any person on any agreement made in consideration of marriage, unless the agreement were in writing, was held not to apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8 & 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or maintained for a wager, applied only to wagers made after the Act was passed. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p274
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Sir GEORGE TURNER: There is no doubt about those cases, I should say. Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear. Mr. BARTON: There need not be the least fear that any court of justice would so interpret the provision as to apply to anything made before the law took effect.
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Hansard 15-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. OCONNOR.I think the honorable member (Mr. Higgins) will understand, from his experience of the law, that there are differences of opinion about these matters, and we only want to ascertain what the law really is. I have a very clear view about it myself, and I think the view I have is in accordance with what we will all admit to be the justice of the case. Further, if there was any doubt at all about the preservation of rights which have been acquired under any bounty laws made before the 30th June, 1898, I think that point should be made perfectly clear in the Constitution, so that those rights should be preserved. But after that date any statute which merely gives the right from day to day, as the offers under the statute are accepted, should, of course, cease on the imposition of uniform customs duties. I call the honorable member's (Mr. Isaacs') attention to a passage in Maxwell on the Interpretation of Statutes, page 299, which statesIt is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions, or impair contracts, that the rule in question prevails. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Then Maxwell gives a number of instances to illustrate this principle, which is very well known. Mr. REID.-Express words are required to make anything retrospective, to impair a contract. Mr. OCONNOR.-That is well known, and this provision, when it says the Act is to cease and have no effect, cannot possibly touch the validity of any contract which has been created while the Act was in full force and effect. Sir GEORGE TURNER.-Should you not also provide for accruing rights? Mr. BARTON.-I will see that the clause is made quite clear with regard to all existing rights. [start page 948]
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Dr. COCKBURN (South Australia).There can be no doubt whatever that the honorable member (Mr. O'Connor) is quite right that any actual agreements or contracts, made with specific persons or companies, would remain in force; but that is not the point raised by this amendment, and I do not think that is the point raised by the Right Hon. Sir George Turner, in what he proposes to do for the development of the wine industry of Victoria. I do not take it that he means only to enter into certain contracts with companies or individuals, which would give them a monopoly if he was prevented from giving the same terms to others. What I believe the Government of Victoria would wish to do, in developing an industry of this character, would be to make a general agreement to give certain facilities, not to any one individual, which would be monstrous, but to anybody who chose to fulfil the conditions of the offer; but such general terms would not be held to be a specific contract under this clause. Of course there is no doubt that if the Government of Victoria enters into a contract with any individual or company, that would have to stand, and any law that abolished it would be monstrous; I do not care whether it was an Imperial Act or not. Mr. MCMILLAN.-But what about entering into new contracts? Dr. COCKBURN.-I take it that these are not contracts at all. These are grants or agreements for a bountythe bounty not to be paid to any individual named, but to be paid to any individual or company that fulfils the conditions. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p275
Mr. MCMILLAN.-Take the case of a guarantee. Do you say that the state Government should be allowed to do that after the 30th June for other people? Dr. COCKBURN.-Certainly; I take that to be the intention of this clause. Mr. DOBSON.-To enter into a guarantee with other people?
Dr. COCKBURN.-There is no guarantee with any individual at all in this case. I have been watching this development in Victoria with some interest; but I do not take it that the Victorian Government intend to enter into any contract, only with an individual or a company. They wish to encourage the establishment of central depots for blending and maturing wine, receiving must, and so on; but they do not mean to enter into a contract only with some individual or company. Mr. HENRY.-Yes, that has been stated. Dr. COCKBURN.-Of course I may be under a mistake, but I think the people would at once protest against any advantage being shown to any individual who happened to come in before the 30th June that could not be availed of by others who were willing to subscribe to the same conditions. The state should simply offer to give assistance to any of the general public or persons in the trade who desire to take advantage of the offer; otherwise the proposal would be a monstrous one. Mr. SOLOMON.-In the same way, you should have the right, in South Australia, to continue the bounties to others that you have given in the past, with regard to the wine industry. Dr. COCKBURN.-Certainly; and if the colonies are to go ahead they must have that power. It must be done. You must not cripple a live colony, lest it should get ahead of those who travel at the rate of corpses. The honorable member (Mr. Solomon) must admit that it would be absolutely disastrous if we were to say that, in the future, no encouragement is to be given to any particular industry. The assistance will have to be given somehow, whatever this Constitution may say on the subject. The common sense of Australia will insist upon it, when some of the ideas of those who still maintain the laissez faire principle are exploded, as they will be shortly. The common sense of the Commonwealth, if we try to tie any ligaments round the proper development of industries, will insist on those restrictions being removed.
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The usage of companies in the aforementioned quotation indicates that it had nothing to do with Subsection 51(xx) but still was relating to the way the State could deal with companies. In fact the framers of the Constitution were often referring to companies and as such did not particularly regard that subsection 51(xx) was the all out governing provisions but their debates rather indicated that the registration was what it was all about concerning Section 51(xx) and then considering what the framers of the Constitution stated about the meaning of registration for electoral rolls and the difference to entitlement to vote, then their perception was clearly that subsection 51(xx) had nothing to do with the managing of a plant or factory but was rather restricted to the manner in which the company may operate in its management affairs.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-There has never been any practical difficulty in showing the existence of an organization either on one side or the other.
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Sir JOHN DOWNER.-When an organization makes a demand in one colony there has never been any difficulty in getting other organizations elsewhere to extend the dispute. It is really compulsory arbitration that is asked for. It is called conciliation, but it is main force.
Using the term organization does not particular either indicate a individual rather more a corporation structure. 45
Hansard 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MUNRO: The banks are incorporated under the Companies Act in Victoria!
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Sir JOHN BRAY: You can establish financial companies, which you do not call banks, but which answer all the purposes of banks. We have provided that the federal parliament shall legislate as to the incorporation 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p276
of banks; but there is nothing to prevent the incorporation by the states themselves, quite apart from the federal parliament, of trading companies which will do all the ordinary business of banks. If it is desirable to intrust legislation as to the incorporation of banks to the federal government, there is no reason why we should not say that the registration of financial companies doing all the business of banks should be dealt with in the same manner.
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What stands out here is that the wording of trading companies which will do all the ordinary business of banks. Rather gives me the understanding that trading companies referred to were being financial companies and not a trading company as may be deemed to be ordinary companies that are trading in footwear, clothing, etc. Indeed, below is a set out of disqualification as now exist in Section 44 of the Constitution (after the various clauses were revamped to just the one clause) Proviso exempting members of trading companies. And this indicates that the wording trading company was more about financial trading then trading in clothing, etc.
Hansard 9-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Allowance to members. 45. Each member of the Senate and House of Representatives shall receive an annual allowance for his services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is made in that behalf by the Parliament the amount of such annual allowance shall be five hundred pounds.
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Disqualifications of Members. 46. Any person(1) Who has taken an oath or made a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, or has done any act whereby he has become a subject or citizen or entitled to the rights or privileges of a subject or a citizen of a Foreign Power; or
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(2) Who is an undischarged bankrupt or insolvent, or a public defaulter; or (3) Who is attainted of treason, or convicted of felony or of any infamous crime; shall be incapable of being chosen or of sitting as a Senator or Member of the House of Representatives until the disability is removed by a grant of a discharge, or the expiration or remission of the sentence, or a pardon, or release, or otherwise.
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Place to become vacant on happening of certain disqualifications. 47. If a Senator or Member of the House of Representatives(1) Takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, or does any act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a Foreign Power; or
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(2) Is adjudged bankrupt or insolvent, or takes the benefit of any law relating to bankrupt or insolvent debtors, or becomes a public defaulter; or (3) Is attainted of treason, or convicted of felony or of any infamous crime; his place shall thereupon become vacant.
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Disqualifying contractors and persons interested in contracts. Proviso exempting members of trading companies. 48. Any person who directly or indirectly himself, or by any person in trust for him, or for his use or benefit, or on his account, undertakes, executes, holds, or enjoys, in the whole or in part, any agreement for or on account of the Public Service of the Commonwealth, shall be incapable of being chosen or of sitting as a Senator or Member of the House of Representatives while he executes, holds, or enjoys the agreement, or any part or share of it, or any benefit or emolument arising from it. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p277
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If any person, being a Senator or Member of the House of Representatives, enters into any such agreement, or having entered into it continues to hold it, his place shall thereupon become vacant. [start page 951]
But this section does not extend to any agreement made, entered into, or accepted, by an incorporated company consisting of more than twenty persons if the agreement is made, entered into, or accepted for the general benefit of the company. Place to become vacant on accepting office of profit. Exceptions. 49. If a Senator or Member of the House of Representatives accepts any office of profit under the Crown, not being one of the offices of State held during the pleasure of the Governor-General, and of profit. the holders of which are by this Constitution declared to be capable of being chosen and of sitting as Members of either House of Parliament, or accepts any pension payable out of any of the revenues of the Commonwealth during the pleasure of the Crown, his place shall thereupon become vacant, and no person holding any such office, except as aforesaid, or holding or enjoying any such pension, shall be capable of being chosen or of sitting as a Member of either House of the Parliament: But this provision does not apply to a person who is in receipt only of pay, half-pay, or a pension, as an Officer of the Queen's Navy or Army, or who receives a new Commission in the Queen's Navy or Army, or an increase of pay on a new Commission, or who is in receipt only of pay as an officer or member of the Military or Naval Forces of the Commonwealth and whose services are not wholly employed by the Commonwealth. Penalty for sitting when disqualified.
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This also underlines that the concerns of the framers of the Constitution was about an office of profit with the Commonwealth and not with a State. 25
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do not want to hand over to the Federal Parliament too many of these difficulties. This, in my view, should be solved by the local authorities themselves. They are the people to deal with their own questions of industrialism. I do not want to enter into a discussion as to the modes of carrying out this proposal; that will be a matter for the Federal Parliament if we decide to introduce this power. But I will put to my honorable friend what is a practical question in connexion with this power. Who is to decide as to when an industrial dispute extends beyond the limits of a state? Who is to decide when a dispute originating in South Australia enters into the colony of Victoria, so that Victoria shall be put under some kind of martial law? Mr. ISAACS.-It is a question of fact, like anything else.
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Mr. SYMON.-Undoubtedly; but who is to decide it? Is it the Victorian Executive? Did I understand my honorable friend (Mr. Higgins) to say of course"? Mr. HIGGINS.-No, I say certainly not. Mr. SYMON.-Then who is to decide? Mr. JAMES.-The Federal Bill will dispose of that.
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Mr. SYMON.-How is the Federal Bill to say when a strike spreads from one colony to another? Suppose one shoemaker steps over from Bordertown to Horsham. Mr. MCMILLAN.-There might not be a lawyer at the head of affairs, and whoever was there would not know what to do. Mr. JAMES.-You may be certain the lawyers will be there.
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Mr. SYMON.-That would be the only means of carrying this out to a successful issue. As an honorable member suggests-and it illustrates the position-supposing a firm has branches in different cities, and there is a strike in the branch in South Australia, and an air of discontent in the branch in Victoria, would that be 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p278
sufficient to call down the interference of the federal authorities? What I say is that it will not be in your Bill; it will not be in this Constitution; it will not be for the Executive; but it will be for the Federal Parliament to decide that, and you will hand over to the Federal Parliament one of the most pregnant sources of heat and passion that ever was invented.
Mr. HIGGINS.-Will you not trust the Federal Parliament with this as well as with the customs duties? Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen. Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question.
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Again, it is absurd to argue that somehow subsection 51(xx) could have a meaning contrary to what was so extensively debated. 15
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.-Does my honorable friend, who is one of the most profound and acute lawyers in Australia, really put a question like that to me? The Victorian law did deal with that strike and every incident of it. The Victorian law could not bring these people together, and metaphorically knock their heads together, which would perhaps have been the best thing to do; the Victorian law did not say Come together and let us reason out the thing." No power in the world can do that. Mr. BARTON.-It is the original dispute and not the subsequent strike which requires to be settled.
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Mr. SYMON.-A strike is the outward and visible sign of the real dispute between these parties. I appreciate the reference made by the honorable member (Mr. Dobson), but I think be must see that a maritime strike is like any other strike. The relations between the parties are determined by the contract in the place where it occurs. The maritime law of England governs all Australia; the Merchant Shipping Act, with some local modifications, is applicable everywhere, and [start page 193] there is no more difficulty in dealing in each port with a maritime strike than there is in dealing with any other strike. The point here, as the honorable member (Mr. Barton) has remarked, is the original dispute. How are you to deal with that? How are we to deal with the two bodies who join in the conflict? What is a court of law to do? An HONORABLE MEMBER.-How does a court of law do anything at present? Mr. SYMON.-My honorable friend knows that if a striker strikes a free labourer, or vice versa, and that goes to a court of law, you can deal with it by the instrumentality of the court of law.
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Mr. JAMES.-The honorable member was saying that we should leave the parties to settle the disputes their own way. We do not allow masters and servants to do that in every case. Mr. SYMON.-You allow them to settle their disputes in their own way by law. Sir JOSEPH ABBOTT.-The defendant never wants to go to law.
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Mr. SYMON.-Of course not. I do not suggest that we should resort to the primitive method of settling disputes by fisticuffs or trial by combat. Dr. COCKBURN.-Strikes are almost as barbarous. We want to settle disputes by a less barbarous form. Mr. SYMON.-Will my honorable friend tell me, first, how he is going to settle the dispute which has produced the strike; and, secondly, what possible benefit it will be to remove this from the local jurisdiction, and to hand it over to the federal authority? My view is that it is purely a matter of domestic concern, that if we hand it over to the federal authority we shall be introducing greater difficulties than we could even hope to cure, and that it will be an invitation to mischievous men-it may be on the other side, but we are not touching that question now-to increase and extend the area of the strike in order to bring about something like civil war. That is a prospect which I dread, and I trust that honorable members will not allow 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p279
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a mere feeling of sentiment, the pleasure of seeing the word conciliation" in this Bill, to lead them away from the practical issue of how they are to justify the federal authority being intrusted with this great power. And Sir JOSEPH ABBOTT.-If the insertion of these words has the effect of satisfying a sentiment which we know largely prevails throughout a certain class in Australia-if they are only idle words, what harm will be done by inserting them in the Bill? Mr. Symon argued, in reference to the insertion of those words, more as if be were pointing out what the Bill would or would not be, rather than as on a proposal to give the Commonwealth power to deal with this question. I can really see no harm in giving the Commonwealth power to deal with the question. Mr. Trenwith has referred to the fact that very often these industrial disputes are easily settled if the parties to the disputes can be brought together. Mr Symon asks-"How can you enforce an Award or determination against 100,000 working men? " Well, we know that it is absolutely impossible to do so. But we also know that the working men, at least in this 19th century, are just as amenable to public thought and reason as anybody else, and are just as amenable to public opinion as the masters themselves. And, although these awards cannot be enforced against them as a matter of law , I can say, from my own experience, that I believe they will be accepted by both parties. I have witnessed the action of conciliation courts sitting in Dunedin. On one occasion a dispute arose, I think, between the builders and the carpenters, and the matter was referred [start page 198] to the conciliation court. An award was made, and the men's unions universally condemned that award, but every one of them loyally submitted to it, and business went on without any of those quarrels which might have disorganized the whole of that particular trade. I am not quite sure whether the dispute was in the building trade or amongst the shoemakers-it was either the one or the other. And Mr. DOBSON (Tasmania).If a court or tribunal of this kind were established-and I do not care how simple or how powerless it is-it will at least be a step in the right direction. I may illustrate what I mean by reminding myself, and telling the Convention, of the first fight I had when a boy at school. The boy was about my own size. Mr. BARTON.-Did you only have one? Mr. DOBSON.-Yes, only one stand up fight. I do not admit for one moment that I was getting the worst of [start page 205] it, but I do admit that when a mutual friend came and took my opponent's arm and led him away in one direction, and took my arm and led me away in another directionMr. PEACOCK.-You were very glad? Mr. DOBSON.-Well, I was not sorry. I take it that there is no body of persons in the world whom it would be more difficult to persuade that they were wrong than a number of employees fighting for what they think to be right and just on behalf of themselves, their wives, and their children, against their employers. I do not see the common sense or wisdom of refusing to the Federal Parliament power to create some simple tribunal whereby the employees on the one hand, and the employers on the other hand, could be led away in the peaceful fashion I have just described, and a strike averted which would be fraught with danger to the whole of the Australian Continent. Mr. LEAKE (Western Australia).-When this question was before the Convention in Adelaide I had no opportunity of casting my vote for or against the proposal, because with other members of the Western Australian delegation I had already returned to my own colony. For that reason, I do not wish to give a silent vote upon this occasion. It is my intention to vote against the amendment, because I am impressed with the argument that this is a matter not so much for the Federal Government as for the states Governments. The contention that to insert the proposed words would do no harm because they are more idle words does not seem to me to be based upon sound reason. If honorable members have been impressed by the warning given to us by the Premier of New South Wales a few days ago, they will see that words of this sort are not inserted in the Constitution. If this power is given to the Central Government the states Governments will be deprived of the right to legislate upon the subject. Mr. DOBSON.-Not at all.
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Mr. OCONNOR.-When the power of the Federal Government is once exercised of course it will. Mr. BARTON.-The moment the device of extending a dispute so as to put it under the jurisdiction of the Federal Government is adopted the state Government will be unable to act. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p280
And Mr. HOWE.-There would be no occasion for the federal authority to interfere. Mr. HIGGINS.-The federal authority could not interfere. The dispute must be one extending beyond any one state."
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Mr. BARTON.-That gives a direct incentive for the extension of the dispute. Mr. SYMON.-On the other hand, what would prevent an employer from shutting up his shop if an award were given against him? Mr. GLYNN.-Yes. Would a mandamus be issued if he did not open his shop?
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Mr. HIGGINS.-You can impose a penalty for disobedience. Of course, while you can lead a horse to the water you cannot make him drink. Mr. GLYNN.-I would not lead a horse to the water if he were not thirsty. We have seen the growth of voluntary machinery, which 25 years' experience in England has shown to be efficacious, and by substituting for it the principle of compulsion you must, if you do not nip in the bud, at any rate interfere with the early growth of the principle of conciliation and arbitration. Mr. HIGGINS.-If the principle is bad the Federal Parliament will not adopt it. Mr. GLYNN.-The honorable member must be an innocent in political life if he thinks that. Mr. HIGGINS.-Why should not the Federal Parliament be as wise as we are?
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Mr. GLYNN.-No doubt, but that is not going very far. On a simple point like this, we have had something like 25 different opinions, so that there are two sides to the wisdom of Parliament. The bulk of legislation during the last 30 or 40 years has simply repealed the efforts of earlier legislators who worked on philanthropic lines. I should be prepared to vest this power in the Federal Parliament if I thought that it would do any good or that it would not do harm, because I think we ought to arm the federal body with any power which may be efficacious for the purposes of good government, and which will not annul the existing rights of the states. But I am of opinion that you will tie the hands of the state by enacting legislation of this character, because it will be impossible to say where the line of demarcation is. [start page 208] There may be a strike in one colony, and there may be manifested sympathy and support towards the strikers from other colonies without an absolute strike taking place in those other colonies. It will then be difficult to say whether the manifestation of that sympathy and that supply of funds does not constitute an extension of the dispute. A provision of this sort would, in fact, be full of difficulties of interpretation, and, instead of having a settlement of disputes, you may have a complication. Further than that, some lawyer might apply to the court for a mandamus to prevent the Federal Parliament going into the matter at all, on the ground of possible interference with state rights. For these reasons I shall be found voting against the amendment. Mr. REID.-In the first instance I think that the onus should be placed upon those who wish to add to the subjects on which the Federal Parliament is to have jurisdiction of giving reasons in favour of their proposals. No part of this Bill has received more careful consideration from the various bodies who have dealt with it than this particular clause, so that when an honorable member wishes to introduce a new subject of federal jurisdiction, the onus is placed upon him of showing that there is some distinct advantage to be gained by it. I have no doubt that those who are in favour of the amendment moved by the honorable member (Mr. Higgins) do believe that a distinct advantage would be gained by making this a federal subject. There is a tendency in these days, especially among those who are very anxious to bring about an amelioration of all the ills which flesh is heir to, to intrust knotty problems to some new authority, in the pious hope, that matters which human wit has hitherto never been able to settle satisfactorily will be settled by some such tribunal. I fear that this attempt to settle the matter of trade disputes by referring them to some new jurisdiction will only lead to an extension of the evil. Because we must see at once that this proposal has a very serious disadvantage in it. The honorable member does not propose to hand over all trade disputes to settlement by the Federal Parliament. He hands over only those trade disputes which extend beyond the limit of one state. Cannot we see that giving any such power must result in a most unfortunate state of things arising? For instance, let us suppose that there are several sets of laws in existence dealing with this subject-one in a particular state, which are not interfered with by any federal law; different laws in each of the other four states; and then a federal law which may be radically different from all the others. Just consider the temptation under those 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p281
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circumstances to shift the venue of a particular trade dispute from a particular state. If the employers in the trade dispute in a particular state think that the federal law and its administration are more likely to suit them, look at the incentive there is to extend the mischief and evil into another state, or more than one other state, in order to shift the venue of the tribunal which will try the dispute. There is at once, I say, an incentive to shift the venue if the employers think that the federal tribunal will be likely to suit them best, and they will be tempted to extend the dispute in order to suit their own personal interests. So it will be with the other side-the working men-if they think that, the federal; tribunal will best suit their interests. Mr. HIGGINS.-As if the Federal Parliament would not deal with such a case! Mr. REID.-I cannot conceive of a Parliament which could deal with contingencies of that kind.
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Mr. HIGGINS.-It is quite possible for the Federal Parliament to draw the line, and to allow the tribunal to decide whether a particular case referred to it is a bona fide dispute pertaining to one colony or not. Mr. REID.-We are drawing the line here. [start page 209] Mr. HIGGINS.-We are drawing no line here.
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Mr. REID.-But we say that the dispute is only to be dealt with by the Federal Parliament when it is a dispute existing in more than one state. Mr. HIGGINS.-Yes, that is so. Mr. REID.-That is all I am addressing myself to; and I am showing that such a provision will tend to enlarge the area of trade disputes, for the very reason that in a given dispute the employers might be disposed to extend the working area, or the men might be disposed to extend the area, in order to get the advantage of having the dispute settled by the federal tribunal. Now, I am one of those who quite believe in the compulsory investigation of trade disputes. I have quite come to that conclusion. But a proposal that the Federal Parliament shall provide for the compulsory investigation of trade disputes passes my comprehension. It seems to me that any such proposal would put a premium upon one side enlarging the area of the mischief. Under all the circumstances, it seems to me that it will be better for each state to deal with this matter locally. I am, to a considerable extent, in sympathy with those who are agitating upon this matter, but I think that it is one that can be best dealt with by means of laws passed by the various states. While I am personally in favour, however, of the compulsory investigation of trade disputes in particular states, I am opposed to a compulsory federal investigation of local trade disputes. And Sir EDWARD BRADDON.-And as in the case of wages, which necessarily vary according to varying conditions within a state, so it must be remembered that there are many other matters which are largely ruled and governed by local conditions. I see the matter just as strongly now as I did in Adelaide. I see that it is a matter which should be left to the adjudication of the states; and I would urge further that, by the interference of the Commonwealth Government in matters affecting the different states as to industrial disputes, there will be a probability, possibly more than a probability, of very serious friction arising between the Commonwealth and the states. When the honorable member who moved this amendment rose, I quite thought that he [start page 215] rose with the intention of withdrawing it. After seeing that that amendment, moved by himself as an extreme liberal, and supported by some as extreme liberals, came to be supported by extreme conservatives, or I may say tories, I was all the more confirmed in that idea when he admitted that the support of my right honorable friend (Sir John Forrest) almost convinced him that he had better leave this matter alone. Mr. MCMILLAN.-Perhaps he will withdraw it now.
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Sir EDWARD BRADDON.-I thought he would then, and I hope be will now withdraw it as something which will not be to the interest of labour or to the interest of the states. Question-That the new sub-section proposed to be inserted be so inserted-put. The committee dividedAyes. ... ... ... ... 22 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p282
Noes. ... ... ... ... 19 Majority for the sub-section ... 3 And Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a difference between its language and the language of the corresponding sub-section in the Bill of 1891. The difference is this:-In the Bill of 1891, after the words legislative powers" there came the words with respect to the affairs of the territory of the Commonwealth, or any part of it." It was considered unnecessary to retain those words, because the whole scope of the legislative authority is that the legislation should be for the peace and good government of the Commonwealth itself. Inasmuch as the Commonwealth cannot make any laws except for the peace, order, or good government of the Commonwealth itself, we thought that it could not make laws except with respect to the affairs of the territory of the Commonwealth or any part of it. And Mr. BARTON (New South Wales).-I think the original intention of this sub-section was to deal with the affairs of such persons of other races-what are generally called inferior races, though I do not know with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so that all those of the races who come into the community after the establishment of the Commonwealth will not only enter subject to laws made in respect to their immigration, but will remain subject to any laws which the Commonwealth may specially devise for them. There is no reason why the Commonwealth should not have power to devise such laws. And Mr. WISE.-Yes, it would, because the Commonwealth would have no power to pass any law relating to the immigration of any section of the community unless they were aliens. And Mr. BARTON.-Because the powers in clause 52 are all concurrent powers, and these are all exclusive powers.
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Mr. DEAKIN.-I understood that was the difference, and a glance at the following two sub-sections of clause 53 shows that they are matters upon which the Federal Parliament will have sole authority, and upon which, naturally enough, the local Parliaments never could have, or expect to have, any authority. But, although this provision is linked with them and placed in the exclusive clause, it deals with questions which are being dealt with, which have been dealt with, and which probably in the future will be dealt with by the several states. Sir EDWARD BRADDON.-And in which aspects they can only be dealt with by the several states. Mr. DEAKIN.-If so, this sub-section has found its way into the wrong clause, and should be included in clause 52 rather than in clause 53. We have Acts in some of the colonies relating to the Chinese; in other colonies there are, or may be, Acts relating to Afghans. In the northern colonies there are statutes relating to kanakas. All this legislation is [start page 231] in existence at present, and the leader of the Convention admits that, until the passing of an Act by the Federal Parliament dealing with these people, the several Acts of the several Legislatures relating to these several peoples would remain in force. And Mr. KINGSTON.-Section 100 preserves the existing legislation.
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Mr. DEAKIN.-Yes; and section 101 provides that 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. Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will nevertheless remain in force under clause 100. Mr. TRENWITH.-Would the states still proceed to make laws? Mr. BARTON.-Not after this power of legislation comes into force. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p283
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And Mr. BARTON.Now, the preservation of every inch of the shores of Australia from immigration of the kind indicated, except to a certain limited extent, is one of the most desirable powers to place in the Constitution
And Mr. BARTON.. If it is necessary to give the Federal Parliament power to make laws for their regulation, not applying to the rest of the people of the Commonwealth, And
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Mr. BARTON.The laws which at present pertain [start page 233] in the states with reference to these people will remain with nothing in them which is against the interests of the Commonwealth, unless the Commonwealth at once legislates. And Sir GEORGE TURNER (Victoria).-I trust the leader of the Convention, will carefully reconsider his position, and the apparently strong views be holds with regard to persons of foreign race. I agree with Sir Edward Braddon, and other honorable members who have spoken, that when these people are once admitted to Australia their control and management should be strictly a local affair. It is not a matter with which the Federal Government should interfere. The Government of this and of other colonies should have full power to make such laws relating to health, to factories, and to the licensing of these persons as they may deem to be fair, just, and reasonable. The great difficulty I see with regard to this clause is in connexion with the making of the power exclusive. If we put this provision in clause 52, as soon as the Federal Parliament chose to exercise its power to legislate, the state laws now in existence would cease to exist. Mr. KINGSTON.-Does the honorable member say that they would lapse? Sir GEORGE TURNER.-Yes, if they were inconsistent with the federal laws. And Mr. OCONNOR (New South Wales).-
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. I should like, however, to remind the honorable member of this fact: In the first place, where any local Parliament has made laws, those laws are continued by clause 100, and, as a matter of fact, most of the Parliaments have made laws in regard to these matters . The point at issue is: Is it desirable that the state should have power to go on making separate laws dealing with aliens until the Federal Parliament shall legislate? Mr. ISAACS.-Why not? Mr. OCONNOR.-If the Federal Parliament is endowed with this power absolutely, there is no doubt that pressure will be brought by all the states to cause that body to legislate upon this matter at once, and it will legislate upon it. But if the states have power to deal with these matters locally they may in many cases avail themselves of this power, and when the Federal Parliament comes to deal with the subject, and to apply an uniform law, it will be met by the vested interests which have been created by the laws of the states. I say that we should have as few difficulties of that kind as possible. Let us deal with these matters as they exist at the date of the establishment of the Commonwealth. Where laws exist at the time of the adoption of this Constitution they will be preserved; but do not let us give power to the states to make new laws which will create new difficulties and complications. That is my reason for differing from the view of Sir George Turner that this provision should be transferred from amongst the exclusive powers of the Federal Parliament to the powers conferred under clause 52. I should like to add a word in regard to the suggestion of the honorable and learned member (Mr. Wise). No matter what the necessity for uniformity in these laws may be, the honorable and learned member says that you must wait until some law has been made by the Commonwealth in regard to these particular races. But why should we wait? What possible connexion is there between the making of a law preventing aliens from entering the state and the making of a law to control their mode of living while in that state? I can see no necessary connexion between the two. It seems to me that it would be hampering the power of the Federal Parliament to make it a condition precedent to legislation with regard to aliens within the borders of the Commonwealth, that it should legislate with regard to outside matters. For instance, if you wish to deal with the question of legislation regarding Chinese or Japanese actually here, there would be very little difficulty, but if you wish to make a law dealing with [start page 235] their introduction into the state, you may be brought face to face with the
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obligations of treaties entered into by Great Britain and other difficulties of that kind which cannot be surmounted. Mr. ISAACS.-The same thing exists now.
Mr. OCONNOR.-That does not apply to dealings with races within your own territory. When other people come within your borders they must submit to your laws. An HONORABLE MEMBER.-These laws must relate to the time when they are within your territory, because the distinction is drawn between them and the general community. And Mr. TRENWITH (Victoria).Take the colony of Victoria. We have legislation in the form of a new Factories and Shops Act, which affects the Chinese in a manner such as no other colony has yet thought it necessary to affect them. It may happen that no other colony will think it necessary to legislate in that way. But there can be no reason why the legislation which is thought necessary by the Victorian people should not be permitted to continue in Victoria. And Mr. TRENWITH.-It seems to me that immediately the Constitution is adopted the local Parliaments can no longer carry any legislation into existence upon this subject-that they cannot perform one act of legislation after the Constitution is effected. Mr. DOBSON.-Read clause 100. They can go on altering or repealing, if they like.
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Mr. TRENWITH.-It seems to me that if you use in this Constitution the term exclusive power" that means that you exclude all others, and once that power is created there is no other power to legislate. I confess that in a Convention such as this, where we have so many and such able lawyers, I speak with great diffidence upon such a subject. Mr. ISAACS.-Clause 100 would not permit new legislation on the subject.
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And Mr. WISE (New South Wales).. I always thought that the guiding sentiment amongst trades unions in Australia was [start page 239] a desire to give a larger power to the Federal Government of dealing with the immigration and emigration of races whose presence we might for one reason or another think undesirable-a larger power than can be now exercised by any single state. If my ears did not deceive me, I heard the Right Hon. Sir George Turner say they did not wish to give executive power to the Federal Parliament to deal with this question. And Mr. ISAACS.-The difficulty is this: If the power is put in clause 52 the Federal Parliament can deal with the subject, and, if the Federal Parliament deals with the subject, that law will be paramount, and no state can legislate against it. And Sir JOHN FORREST (Western Australia).-The difficulty, to me, seems to be as to what is meant by the word affairs." Perhaps the leader of the Convention will tell us. I take it that it means the control of those people after they have arrived in Australia. If it was intended to mean their introductions I have no doubt that the most of us would be in accord, because I think every one is of the opinion that the introduction of people of any race, especially coloured races, is a matter which should be in the control of the Federal Parliament. I take it that the word affairs" would mean the control of alien races after they have arrived in this continent. In my opinion the control of the people, of what ever colour they are, of whatever nationality they are, living in a state, should be in the control of the state, and for that reason I should like to see this subsection omitted. MY. SYMON.-Why did you vote for the question of conciliation and arbitration being a federal subject then?
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Sir JOHN FORREST.-I am not dealing with that question at this moment. I do not see myself that this sub-section is necessary, because I hold that if it is passed the control of every one living in the state should be within the province of that state. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p285
Sir JOHN FORREST.-Yes, unless they can read and write English they certainly can be excluded. I think that there is no desire on our part to do anything to encourage either in Western Australia, or any other part of Australia, undesirable immigrants. I take it that under clause 52 immigration is a subject within the power of the Federal Parliament to deal with. I would not mind if it were one of its exclusive powers. There may be difficulties in regard to the introduction of persons who are not altogether desirable. But I cannot for the life of me see why we should desire to give to the Federal Parliament the control of any person, whatever may be his nationality or his colour who is living in a state. Surely the state can look after its own affairs. And Mr.-KINGSTON.-No, the local laws are preserved under section 100. Mr. REID.-Will that cover the difficulty? We will suppose that this Constitution has been created. Supposing the Imperial Parliament has originated over this continent one executive power, having exclusive authority to make laws [start page 242] for certain subjects. It is a very serious question whether, the moment that power comes into force, the existing laws remain.
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Mr. BARTON.-They stand to the extent to which they do not conflict with the federal law. Mr. REID.-If it does, I will be perfectly satisfied, but I am afraid the words of the provision will not apply to the clause which speaks of the exclusive legislative powers of the Commonwealth. Clause 100 speaks of All laws in force in any of the colonies relating to any of the matters declared by this Constitution to be within the legislative powers of the Parliament of the Commonwealth." Well, these are powers which are declared under this special section to be within the exclusive" power of the Commonwealth. Mr. ISAACS.-Therefore they are within the power of the Commonwealth. Mr. REID.-If that is so, I have no objection to the clause as it stands. Mr. ISAACS.-It prevents you amending your state laws.
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Mr. REID.-There is a concurrent power as to the introduction of aliens which is available to the state. Mr. ISAACS.-The concurrent power does not exist as to new legislation. Mr. REID.-There is a concurrent power, first of all, with reference to immigration and emigration of aliens. Mr. ISAACS.-Not after the Federal Parliament has legislated on the subject.
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Mr. REID.-I quite agree; but that is the whole question. All the legislation we are aiming at is legislation preventing the introduction of certain races of aliens and their becoming members of this community. That is the salient point. Whilst they are members of the community we can deal with them in a very ordinary way. Mr. ISAACS.-Not under that clause, because its power is exclusively in the Federal Parliament.
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Mr. REID.-But you say that the laws in force in any state at the date of the commencement of the Commonwealth will remain in force until the Commonwealth Parliament legislates on the subject, and if that is so-if those laws are not annulled by the creation of the Commonwealth-I am quite satisfied to leave the Bill as it is, because if the matter is a pressing matter at all I feel perfectly confident that the Federal Parliament will deal with it by having it brought exclusively within their jurisdiction. Mr. TRENWITH (Victoria).-I want to give an illustration which seems to me to prove the possible danger of leaving this clause as it is. In Victoria we have legislated on this question. We passed a tentative measure for three years. In one of its parts that measure deals with this question of aliens. At the expiration of three years we shall desire to legislate on the subject again. If experience proves that measure to be a wise one, we shall desire to renew it, which, of course, will be making a new law; but if this clause is carried as it stands we shall then be too late. Mr. BARTON.-Well, you had better make haste, and renew that law before the expiration of the period within which you can re-enact such a law. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p286
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Mr. ISAACS.-But we have to wait for three years to get the experience of the law. Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an absolute majority of both Houses directing the referendum, there is no practical difference between that and an absolute majority again passing the law. Because they virtually passed the law as far as they could. Therefore, it seems to me there is no advantage gained from the stand-point of desiring a better means of getting an amendment of the Constitution. Then, I feet that it is open to the destructive criticism that it makes the law retrospective, and after the court, possibly the Privy Council, has decided that the law is ultra vires, and people have acted on that decision, being compelled to, act on that decision, or being compelled to refrain from acting on the decision of the court, as the law is positive or negative; then we should have under this referendum a law made operative as from the time of its original passing, and penalties, both personal and pecuniary, might be incurred through no fault of the individuals who had incurred them. That seems to me to be a defect to which we cannot close our eyes. Mr. WISE.-Besides, it would punish everybody who took the advice of a man who interpreted the law properly. Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to act, or refrain from acting. That is a position which none of us would willingly get into, and the retrospective action is wrong.
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And Mr. ISAACS.Unless the honorable member is willing to amend his clause in that respect, we should only complicate matters, and if retrospective operation were given to it we should be lending ourselves to what would be, quite unintentionally on the part of the honorable member, a gross injustice.
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And Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick) has suggested. The Constitution would be deemed to be enlarged by the passing of a law, but if you wanted to alter or amend it you could not do so. Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
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Mr. BARTON.-That is to say that, the law having been passed, and the Constitution having been enlarged, the Constitution has been amended. Mr. ISAACS.-That is all. You could not alter a word of it. Mr. BARTON.-No, you would have to take the question of whether the Constitution was really amended or enlarged; but the decision might mean that the Constitution did not require enlargement at all.
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Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BROWN.-It appears to me that, in his opposition to the amendment, the honorable member is not content to leave the matter to the Federal Parliament. If we do not adopt the amendment proposed by the leader of Convention the practical result will be that the uniform franchise must be based upon the broadest possible suffrage now existing in any state. And Mr. HOWE.The vigorous life of the Commonwealth depends on the vigorous life of the several states that compose the Commonwealth, and I should be sorry to see any proposal carried that would interfere with the right of the people to adopt any franchise. And Mr. DOBSON (Tasmania).-If the Convention desires some compromise as between the clause as it stands and the amendment proposed by our leader, I think that Mr. Glynn's suggestion is an admirable one. There is an objection to the clause which makes me rather incline to the amendment of Mr. Barton. We ought not in this Constitution to interfere more than is absolutely necessary with state rights and state affairs. The clause as it stands will have the effect of exerting an influence in state politics. And Mr. SYMON.-
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In Tasmania, they have had only one appeal, which took one year and nine months to decide, and, in Western Australia, the average time occupied in deciding appeals for 23 years has been two years and one month, and for ten years two years and four months.
Mr. BARTON.-Does not the feeding bottle question come in here? These are [start page 347] rather longer periods than an ordinary baby requires. Mr. SYMON.-Yes. The expense of these delays is, of course, enormous. Hansard 3-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON (New South Wales).-The suggested amendment would simply go to this extent: That if the Parliament of the Commonwealth wish to make a uniform suffrage, it would be of necessity that that suffrage should be an adult suffrage-that is to say, that it should include womanhood suffrage-and that, until the Parliament of the Commonwealth so legislated, the existing legislation of any colony would be preserved, together with such extension, but not beyond adult suffrage, as might be established. I think, on the whole, that I might consent to that amendment. I therefore withdraw my own amendment and accept this. And Mr. BARTON.-Is not the right process to alter the word "qualification" to "right"? Mr. KINGSTON.-Qualification means registration.
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Mr. BARTON.-If the person has a legal right, he has to retain that legal right. Supposing he lost the legal right, but in some mysterious way retained the qualification, it is not intended that the law should help him? It is only intended that the law should help him if he has a legal right. I should say that, unless there is some reason given for what we did in Adelaide, which I do not recollect at this moment, the word "right" would be the proper word to use. Mr. ISAACS (Victoria).-In our Electoral Act a difference exists between the right to vote and the qualification. A man is qualified to become an elector. Mr. KINGSTON.-This is a limitation on the right to vote. Mr. OCONNOR.-Suppose a man has a right to vote in some colony by virtue of property. While the qualification continues to exist you cannot take away that right.
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Mr. ISAACS.-Suppose he has the right to vote by virtue of ail elector's right, and that by some accident be does not renew his elector's right for a day. Is he to be deprived of his vote because he takes out an elector's right the day afterwards? The qualification exists, but the right to vote does not. Mr. BARTON.-Would you mind putting that again?
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Mr. ISAACS.-A man is qualified to become an elector. He has not the right to vote until certain conditions are fulfilled; he may have to register, or be may be struck off the roll through some accident. His right to vote is gone through some accident, but his qualification continues. He is a person whose right would not be preserved under this clause, because it applies to the individual-the elector. Mr. BARTON.-If he loses the right in his own state by his own negligence, is it not right that he should lose the right also in the Commonwealth?
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Mr. ISAACS.-He may lose it without negligence; he may lose it without any fault of his own. That has been the case with tens of thousands in Victoria. Mr. DOBSON (Tasmania).-I was going to put the converse case. In Tasmania, and I suppose in every colony at every election, there are a number of persons whose names are on the roll, but who have lost their qualification. As our Electoral Act makes the roll the evidence of the qualification, you find a number of men who have sold their property to somebody else whose names remain on the roll, but who have lost their qualification, while the name of a man who has bought a property just after the roll has been made up, although he has the qualification, is not on the roll. I think we ought to consider whether the word "qualification" is to remain in the clause, because you may have a number of persons on the state rolls who have lost their qualifications, and who therefore, under this clause as it stands, would not be able to vote in the Commonwealth, but they would have a vote in the state. You will have a roll which governs all state 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p288
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elections, but which does not apply to Commonwealth elections, and you will have to direct an officer to go through the different state rolls, and see whether a man is entitled to vote for the Commonwealth, if you keep in the word "qualification."
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In particular in an election year it is important to accept that the High Court of Australia should be better aware what section 41 stands for, and that as was stated; Qualification means registration. then a person who has a right to vote cannot be denied by the Commonwealth of Australia to vote merely because he had not registered with the Commonwealth electoral commission as he could still, so to say, roll up at election time and vote if he is qualified to vote but not registered to vote for federal elections. Neither can the Commonwealth of Australia close the rolls for registration as a person can register in any State for State elections and Section 41 then preserve his right to be entitled to vote in federal elections regardless that the Commonwealth of Australia (albeit unconstitutionally/illegally) has closed the rolls. What ought to be understood is that not Commonwealth registration but State registration determines if the person is entitled to vote within Section 41 of the Constitution. While this voting issue (referred to also below) might be seen as getting away from the industrial Relations matter, it is essential to understand that the Framers of the Constitution debated issues and also made clear that
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until the Parliament of the Commonwealth so legislated, the existing legislation of any colony would be preserved, together with such extension, but not beyond adult suffrage, as might be established.
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Now, this did not mean that State provisions then no longer were applicable, rather that the rights obtained by State citizens have to be absorbed in new federal law enacted by the Commonwealth of Australia.
Again; If we do not adopt the amendment proposed by the leader of Convention the practical result will be that the uniform franchise must be based upon the broadest possible suffrage now existing in any state.
30 During the Constitution Convention Debates the same rhetoric was used regarding other issues within Section 51, where it was time and again made clear that States were entitled to legislate and their legislation would be preserved under Commonwealth legislation but the State could no longer amend its own legislation once the Commonwealth had commenced to legislate. 35
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-You are bound to read the two provisions together, and avoid a repugnance, if possible, and I think you could avoid a repugnance.
40 Where the State already has legislation on foot and then desire to legislate on the same subject matter is then must avoid repugnance, and as such can only legislate broadening or at the least providing for the same rights as existed under the various State legislative provisions, but not cause limitations. 45
Hansard 22-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place at Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that Mr. Holder clearly expressed his views in the following words:What I wish is that these rights should be preserved which have been acquired up to the time that the Commonwealth makes its franchise.
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Mr. BARTON: I should have liked to see added to this, unless indeed it is intended to be included, something which will specify that the actual territory of any existing province shall not be subject to any kind of diminution or absorption for the purpose of constituting new provinces, except with the consent of the legislature of the province affected. That, sir, you may have intended in this resolution. If that is stated to be so, I am perfectly satisfied; but I am also equally satisfied that we are not likely to base federation on the good-will and union of the colonies unless a guarantee of that kind be provided. With respect to the question of the powers, privileges, and territorial rights of the existing colonies, I said that I would endeavour to consider it in connection with the question of the parliament alluded to in the first resolution under the second heading. I take it that this first resolution must be an essential of any just union of the colonies. Unless, indeed, these territorial rights and privileges are conserved, federation would appear to be well nigh impossible; and I think I way be pardoned for saying that it seems an obvious construction that the powers and privileges and territorial rights mentioned here are all those state rights as to which the hon. member, Mr. Deakin, yesterday asked the question, "What are the state rights?" The state rights, it seems to me, are claimed by rather a narrow term. It is state interests we have to deal with, and unless the state interests are effectually preserved in a federal scheme, that scheme will be worth nothing, because it can be worth only so much as consists of the goodwill of the parties to it. If that is so, all those state rights which are not to be specially assigned to the general authority must be religiously preserved to the various states, and it will, therefore, be essential that the constitution provide-and I take it as a necessary consequence that the constitution shall provide-for a legislative body which, in addition to the functions of a house of representatives, and in addition to the functions of a second chamber, will also be the guardian of those individualities, those state rights or interests. If those state rights or interests are threatened in any legislative proposal, whether or not it is contained in a money bill, they will be under the especial care of the federal senate; and if state rights are threatened, whether in a money bill or not, it seems to me that it is not good argument to fall back upon the representative principle to the extent of saying that there is only one representative legislature, and, therefore, only one which can deal freely with questions of money and taxation if the very spirit upon which the federation rests is threatened by any scheme in a money or taxation bill. Hansard 10-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DIBBS: " There may be something more dignified in the use of the word "state." We are not going to become provinces. I do not think we are going to give up the individual rights and liberties which we possess, and which those who have gone before us have fought for, to become mere provinces under a federal form of government. We may take the more dignified form of "states." And Mr. DIBBS: I do not know the meaning of these words, and no hon. gentleman who has yet spoken has given any clear interpretation of them. It is sufficient for us, in enunciating a principle upon which the basis of a constitution shall be prepared, to see that the territorial rights and privileges of each colony shall be preserved to each state but when you come to consider the condition of a surrender, and the question of the power of enforcing such surrender is placed in the hands of the federal government, then your provinces or your states will be no party to the proceeding. Hansard 11-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GILLIES: This question is in the minds of many people who are opposed altogether to the establishment of federation. One of the first reasons they give is, "Why, if New South Wales goes into this federation, what will happen? South Australia is anxious to have the silvermines; Victoria is anxious to go up to the Murrumbidgee; Queensland is anxious to have some of our lovely flats." Now, is not this a pity, when we are engaged in such an important work, the principles of which were considered by all the legislatures of this continent without a syllable having been hinted on that subject, or, if hinted, always disallowed, and without a syllable or a hint being contained in these resolutions, where, on the contrary, it is deliberately set out that all the rights now possessed by the various colonies entering the union are to be preserved, except such as may be necessary to hand over to the federal parliament. And to hand over in what way? To hand over, not generally, not using general language that might take in a whole host of things that people did not intend; but using language so specific that only for the purposes of federation, and no other, shall these lands be taken, and then only small pieces, and with the consent of the state parliament. When we are told in this way that our objects are very deep and profound, but cunningly veiled and concealed-that we desire no less than to take a large portion of the territory of New South Wales-I say it is not fair, it is not just, that any gentleman should, even by the use of language, mistakenly create the idea that such is the intention underlying the p290 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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resolution, and the intention in the minds of members of this Convention. It is well that wherever necessary we should emphasise the fact that the idea to which I have referred is a mistake, and that no such thing was ever contemplated.
Hansard 13-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir SAMUEL GRIFFITH: But the powers of the parliament of the commonwealth to exercise any of these functions are expressly limited so that they cannot be put in force without the consent of the parliament of the state affected . The rights of the state in regard to territory and everything else are preserved absolutely intact. Nothing can be done except by the consent of the states themselves. Hansard 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Dr. COCKBURN: That is to say, that those who want unification will not abandon their aim! Sir SAMUEL GRIFFITH: I do not want unification. I strongly object to it. I am perfectly satisfied that under this constitution there will be no unification, because state rights will be perfectly preserved. That is my opinion, at any rate. I do not propose to make any further observations. I will merely repeat that if members of the Convention really desire a federation they will not vote against the only possible means of obtaining it. Hansard 26-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HOLDER:
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The first of these principles is this: that we are assembled to obtain a Constitution which will give us a true Federation, and I would like to add that what I think we want is it true. democratic Federation. Mr. ISAACS: Hear, hear. Mr. HOLDER: We want something which shall have two parts, which shall be democratic in the fact that it is based on the people's will, and that in it every personal unit of the population shall be recognised and his individuality preserved, and that, on the other hand, shall be a true Federation, in that each State unit shall also have its individuality preserved and its independence assured. I do not think we can afford to dispense with either of these two things. We cannot afford to dispense with the guarantee of the personal individual rights of every citizen of the Commonwealth, nor, on the other hand, can we afford to dispense with the individual or separate rights or interests of each of the separate States-if my hon. friend Mr. O'Connor prefers that term. We cannot neglect to provide for their due recognition. The next principle I shall lay down is this: That in dealing with this federal authority we should confer on it no powers which it cannot exercise more wisely and well and effectively than the States can exercise those powers. I would even go a step further, and lay down as the principle which should govern our conduct: To the States all that is local and relating to one State, to the Federal authority all that is national and inter-State. I wonder whether I can secure the absolute adherence, no matter where it may lead us, of a majority of this Convention to that principle: To the State everything that is local and relating to one State , to the Federal power everything that is national and of inter-State importance. And Mr. ISAACS: It was pointed out by what I may term the master minds of the Convention that there was no danger to the smaller States, because the State rights, considered as rights in a lawyer's sense, are undoubtedly guarded and preserved by the Constitution, and, as Mr. Wilson, of Pennsylvania, almost in the words of one of the representatives here, said, it is not the question of State rights that was so much at issue, as the question of State interests. Hansard 31-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: I am coming to that in a minute. We have not only to attempt to safeguard State rights by placing provisions for that purpose in the Constitution, but we must also take great care to make the machinery as fully applicable to the preservation of those interests which are erroneously called State rights as if they also were set down in the bond. And 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p291
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Mr. BARTON: This is the gist of the matter, that there are two different entities to be preserved. They are both necessary to constitute a Federation. One unit is the individual citizen, and the other unit is the State entity. We are bound to confess that both the individual citizen as represented in the National Assembly and the individual State as represented in the States Council must have their powers, and you must provide so that in each case the majority of the units shall prevail. I do say that you must so protect your Constitution that you will not have a majority of citizens dominating the State interests, or the State interests dominating the national life; but it must be so constituted that the interests they each represent are firmly embedded in the Constitution, and you must leave the future to the evolution of those two legislative bodies, which command the respect of both entities of the Federation, namely, the majority of the citizens, and the majority of the States. At the same time attacks have been made in the course of debate by the representatives of both extremes. Hansard 13-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. O'CONNOR: Sir Samuel Griffith went on to say: I do not want unification. I strongly object to it. I am perfectly satisfied that under this constitution there will be no unification, because State rights will be perfectly preserved. That is my opinion, at any rate. I do not propose to make any further observations. I will merely repeat that if members of this Convention really desire a Federation they will not vote against the only possible means of obtaining it.
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Hansard 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: What satisfaction will there be to members to be in time to come dragged back from the position they have taken up by the force of public opinion, as expressed by the press, by public men, and by the Parliaments? Without successes gained under the influence of public opinion there cannot be a successful
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Federation, because Federation must depend on the goodwill of the people. You cannot make a Federation under which the people can live and prosper unless it has their goodwill.
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Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON: The substance of the amendment, putting aside the language of it altogether, is that the Federal Parliament is to be given unrestricted power of legis- [start page 788] lation in respect of industrial disputes, where those industrial disputes overflow, or exercise an influence beyond the limit of a particular State. Now, venture to say, first of all, that an industrial dispute is really a matter of local concern. In its essence and in its origin it is a matter of local concern. And, undoubtedly, if there is one thing more than another which ought to be preserved to the individual States it is the power of dealing-by means of conciliation, or by means of any other method that can be adopted-with those terrible evils which sometimes flow from these disputes, without Interference, by the federal authority. That seems to me to be an unquestionable principle, and we ought not to give to the Federal Government the right to interfere with the self-government of a State in this respect. Then if we did give it that power, just think of what it involves. It would not be limited to the establishment of a court or tribunal of arbitration or conciliation. If it is to be limited to empowering the federal authority to establish tribunals of arbitration that is one thing, but I am not dealing now with the language of the amendment, which-as Mr. Higgins himself admits- is not very apt, but I am dealing with the substance of it, which confers on the federal authority power to legislate in every way on industrial disputes. That would involve-as my hon. friend Mr. Wise pointed out in a question which he addressed to Mr. Higgins-the settlement of a uniform rate of wages applicable to the whole five or six, or it may be, if the continent was further divided into provinces, of the seven or eight different provinces of the group where local conditions might govern and differentiate the rate of wages in the different trades. For instance, if you have regard to trade in a tropical part of Australia, you could scarcely apply the same rates of wages as you would in South Australia. Then, again, you will be handing over to the federal authority a two-edged sword, which might operate with equal danger in the interests of the workmen as in the interests of the employers. It would entirely depend upon a majority of the members in the Federal Parliament as to which way that power would be exercised. If the majority were leaning in one direction legislation might go that way; if a majority were leaning in another direction the legislation might be directed 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p292
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accordingly. -It would be impossible to see the end of it, and I submit that it is outside the federal ambit for us to legislate in this direction. The point taken by Mr. Deakin appears to me to be insuperable. How is this court to act? Are its functions to be limited to a particular State where the industrial dispute occurs, or is it to travel outside the Commonwealth? There is no limitation. The way you get the test would be by asking whether it escapes beyond the limits of the particular colony affected by the trouble or whether it remains within. Mr. HIGGINS: The Commonwealth has no jurisdiction beyond its own limits. Mr. SYMON: The test my hon. friend would put would be as to the jurisdiction of this tribunal, and as to whether the dispute affected some country outside its own particular limits. Then if you treat it federally, how is the jurisdiction to be exercised as to the conditions of one colony to another? There can be no industrial dispute in New South Wales or Victoria without the ramifications of the organisations of employers or employes being utilised for the purpose of putting pressure-I am dealing with the matter now with perfect moderation and treating it as applicable to both sides-to bear in one colony or the other, to affect one side or the other. That would create intense bitterness in the particular colony affected. That might happen if there was to be a strike or a lockout. I assure you I look at this thing in a most disinterested manner. You might have such a state of tension developing as would produce something like a civil war. We know the difficulties which arise in con- [start page 789] sequence of the sense of injustice which may be generated either on one side or the other, and the side which feels the injustice may consider it beyond the relief of any court; and if you give power, whether by means of a court of arbitration or of conciliation, you are importing into the Federation an element which may result in bitterness between the federal authority and the States when you should promote at all hazards harmony. Above all things let us preserve to each State its own jurisdiction in this matter; let us promote conciliation, but do not let us impose upon the federal authorities anything which by any possibility will create occasions of difference between the State and the federal authorities. In regard to taking over the railways, I thought the Inter-States Commission would be unadvisable as compared with taking over the railway altogether, because It might give occasion for bitterness, and the difficulty was insurmountable. There, however, I do not think the difficulties are insuperable. As Mr. Kingston has pointed out, we have had efforts made that should be commended with the view of dealing in a harmonious and conciliatory spirit with difficulties which we all deplore and which, unfortunately, often arise. I say: leave them to the States to deal with, because it is a matter of home jurisdiction, or home rule. And Mr. GORDON: And then Mr. Glynn adds a note to that report which so concisely summarises the legal position that I cannot refrain from quoting it. The water rights of the province to be preserved depend a good deal upon the extent of their recognition by the other colonies. What they are according to the principle of international and private lawthe analogy of which should guide us in defining them-may be clearly stated, but the mere statement of the colonies' respective rights in the river, unless made the basis of an agreement for the mutual exercise and respect of them, would be of little use There is no tribunal to which a colony, on breach of its water rights, can appeal for a remedy, so that the rights are legally ineffective. Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. PEACOCK: The matter is perfectly clear, and we are all practically unanimous on the point over which we have spent an hour's talk, that the Federal Parliament should have the power of dealing with the tariff and bounties, while every man in this Convention is of the same opinion concerning existing contracts, which ought to be preserved for the reasons given by Mr. Barton.
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Even considering federation the Framers of the Constitution provided for that existing contracts were to be preserved. This did not appear to me to have been provided for by the Commonwealth of Australia governing companies who may have contracts outstanding and may find severely harmed by the new legislation.
Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. KINGSTON:
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When the Bill was first introduced, according to the interpretation which would be placed upon the Statute by a court of law, any contract which was in existence at the time that the Federal Parliament legislated for the adoption of a uniform tariff would be held to be good, and would [start page 856] be preserved, but now Sir Edward Braddon proposes that from March 31st in this year the hands of the State should be absolutely tied. What does that mean? The CHAIRMAN: I would point out that the hon. member, Sir Edward Braddon, has withdrawn his amendment. And Mr. KINGSTON: Then the industry would be stopped altogether. I object to unnecessary interference with the rights of the State regulating these matters for itself; it will have a very bad effect. I speak of these matters because South Australians take a considerable interest in them. And Mr. O'CONNOR: I think we are all agreed that when an officer is taken over by the Commonwealth he should not be placed in an unfair position, or lose any rights by being taken over, because t is no fault of his that the continuity of his service has been broken. The Bill of 1891 provided that all existing rights should be preserved, but nothing more. That would be quite inoperative in many cases, for this reason: In the case where a pension was due after a certain number of years' service, the period might have been almost complete to entitle a man to a pension, but if it were not actually complete, he would have no rights whatever. Sir GEORGE TURNER: I suggested the insertion of the words "rights existing and accruing."
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Hansard 21-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The CHAIRMAN: We will now deal with the amendment moved by the hon. member Mr. Deakin. Mr. HIGGINS: Words very similar to these were inserted in the Civil Service Act of Victoria, in 1883, with the result that they led to great difficulties and friction between Governments and employes. Indeed no words have been so productive of difficulty. I admit the justice of the contention of my hon. friend Mr. Deakin, that existing rights should be preserved. But we have by no means come to the solution of the difficulty. Under our Victorian Act we have a certain rule as to the order of promotion and transfers from one department to another. If the rule in the Victorian Act is that you must promote within a department by seniority and fitness, and if you have not got that rule in the same form in the other colonies, how can you apply it to the case like that alluded to by the hon. member Mr. Gordon, where you have men in the Customs of South Australia coming into the same department with the men in Victoria. Why, it will lead to legal questions which I shudder to contemplate. It will afford litigation and cases, no doubt, for the lawyers, which I am quite sure it is our business to avoid. Although it is a difficult matter, I do not propose at present to move any amendment. It can only be solved by a careful attention to details, and I am suggesting that in dealing with rights and privileges, the rights and privileges that are meant to be conserved should be defined, and that if it is intended that a man shall not have his former right [start page 1051] to promotion within a department, say, that he was entitled to under existing law, it should be so understood. I am sure that general words of this sort will lead to trouble and confusion. Mr. DEAKIN: I take it that this amendment must necessarily be read to apply go far as the circumstances will permit. It is quite clear that any inchoate right that any member of the public service will have to promotion in the State department cannot obtain exactly under the Commonwealth. That is not a right we could seek to engraft on the Commonwealth. Men who join the public service under the Commonwealth, if they are men of ability, will have new fields of promotion open to them; that must weigh with those who pass out of the State service into the larger service of the Commonwealth. We do not want by any such words as these to convey the merely petty or technical rights, but the assurance that substantial justice will be done. Mr. BARTON: This will tend to give the Commonwealth the service of the best public servants. Mr. DEAKIN: I recognise the force of the hon. member's contention, and trust he will give us his help to provide that substantial justice shall be done to all public servants, and that substantially the rights and privileges they enjoy now will be preserved to them under the Commonwealth.
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Mr. Deakin's amendment agreed to; clause as amended agreed to.
It ought to be understood that the difference is that staff actually changed employment when changing from colonial to federal employer and as such there is a change made which itself did
not change the legislation of the colony, as now is claimed to be done to override it by the WorkChoices legislation. 5
Hansard 21-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: Yes; to principles operating entirely within the State. No internal regulation can have the effect of derogating from that power-when they come into conflict-which is reposed in the Government of the Commonwealth to regulate trade and commerce, and preserve the equality of it. That equality must be preserved, but if there is no conflict, and the thing is dealt with in one State simply for the management of its own internal traffic, and not for the purpose of derogating from this absolute equality of trade, things like that ought to be preserved. Mr. HIGGINS: Do you think it ought to be allowed to secure its own internal traffic to go to Sydney even if it really should go to Victoria?
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Mr. BARTON: Members seem to have lost sight of the question they are discussing. Each State is primarily entitled to the traffic within its territory, but there is a [start page 1110] salutary condition imposed that where the inter-State traffic is interfered with, and where regulations are made so as to interfere with it, then these things must be interdicted. If there was a portion of New South Wales which had no connection with the Victorian railways-take that portion between Sydney and Armidale-and if there happened to be a rate imposed there which was simply a development rate for the purpose of giving a chance to the settlers, no Commission would interfere with it under the United States Constitution; but apart from this, if it affected inter-State trade and commerce and intercourse prejudicially, so as to prevent the freedom of trade operating, that would be the very point which this Commission would be appointed to deal with. We want to put a stop to things like this. Mr. Reid quoted a case in which, on one of the Victorian railways-from Echuca to Melbourne-a bale of wool could be carried from a point 250 miles in New South Wales territory to Melbourne by the Echuca line for 2s. 9d., while the grower, if he happened to be in Victoria, would have to pay 6s. 1d. to carry his wool over the line. Sir WILLIAM ZEAL: The same thing exists in New South Wales. Mr. BARTON: I wish the hon. member would remain quiet. He was very quiet while Mr. Higgins was quoting instances, and I hope he will be while I am. We must have something like federation in these matters. Let us take the return traffic on the line from Melbourne to Echuca. We find that a ton of sugar intended for consumption at a distant point in New South Wales is carried for 11s. 9d., but if it is intended for a railwayridden Victorian who owns the railway he has to pay 0 13s. 5d. Let us apply the same to general merchandise. Ever since 1894 the regulation has been that if the goods are intended for a distant consumer in New South Wales he pays 22s. 6d. a ton, but a Victorian has to pay rates ranging up to 4 8s. 7d. I say nothing about the rebate allowed to the carriers of the New South Wales wool. Is it not easy to distinguish between a regulation of that sort giving an advantage to a citizen outside your own bounds over your own citizen, and at the same time tending to impoverish the railways of your neighbor, and a regulation dealing with internal traffic intended to develop the country? If the latter goes farther than that the Inter-States Commission must step in and see that it is left to that. Mr. FRASER: I cannot allow this matter to go without some explanation. Mr. BARTON: It needs explanation. Mr. FRASER: The low rate to Hay is undoubtedly a preferential rate to secure the trade of that district. The rate to Cootamundra, which is some 254 miles less than to Hay, is 3d. per ton per mile, and there is no increase in the rate to Hay. Will anyone contend that that is not a preferential rate? I do not say that each colony is not right in gathering all its own traffic. I concede that point, but I assert all the same that if New South Wales is going to gather all its traffic in this way Victoria should not allow her geographical advantages to be stripped from her. Sir EDWARD BRADDON: Alter the geography. Mr. DEAKIN: Hand us over the territory.
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Hansard 22-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. ISAACS: 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p295
It is also provided that: Such vote shall be taken in each State separately, and if the proposed law is affirmed by a majority of States containing also a majority of the population of the Commonwealth, it shall be presented to the GovernorGeneral for the Royal assent, as if it had been duty passed by both Houses of Parliament, and on receiving the Royal assent it shall become law. If not affirmed as aforesaid, the proposed law shall not become law, and shall not be again proposed for a period of at least three years. And Mr. ISAACS:
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It is never intended that there should be a referendum in the case of a dispute between the Ministry and the Lower House. It is only in the case of a momentous and prolonged dispute between the House of Representatives and the Senate that it could ever be applied, and unless the Ministry of the day have a majority in the House of Representatives it is plain there never will be a dispute at all. Therefore it has no connection whatever with the question of responsible government. And Mr. ISAACS: It is only in case when the Chambers do not mutually pass a Bill that the referendum comes into operation.
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Mr. O'CONNOR: Would it be competent for a private member to get the referendum under this? Mr. ISAACS: Not unless the House granted it. Mr. O'CONNOR: On the motion of a private member? Mr. ISAACS: There is nothing expressly introduced to prevent it here, but I have no objection to doing so.
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Mr. BARTON: Hon. members will recollect that there was an amendment carried in this clause at the instance of my hon. friend Mr. Holder, to this effect: No elector who has at the establishment of the Commonwealth, or who afterwards acquires a right to vote at elections for the more numerous House of the Parliament of the State, shall be prevented by any law of the Commonwealth from exercising such right at elections for the House of Representatives.
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There are a number of members who did not sufficiently consider that this applied to the preservation of any suffrage after the date of the establishment of the Commonwealth, and preventing it being interfered with by the Parliament of the Commonwealth. There are some hon. members who are in favor of preserving the suffrage existing at the date of the Commonwealth, and not interfering with it, so that any person who has for instance a vote under adult suffrage or female suffrage, should not have a vote taken away while it lasts. On the other hand the various States may amend their electoral laws after the date of the establishment of [start page 1194] the Commonwealth; and some members who voted for this provision have told me that they did not sufficiently consider that after the date of the establishment of the Commonwealth the State might alter its law. Supposing female suffrage were taken away by South Australia, there is no reason why it should nevertheless be absolutely fixed and preserved for federal purposes until the Federation made a uniform law. The right is not to be taken away from the States themselves to alter their suffrage before the Parliament of the Commonwealth maker such a law upon the subject. The amendment of my hon. friend would cover this state of things: If the suffrage was extended to females of 18 or 19 years of age, or to a certain undesirable class, that right being once made could not be touched by any law of the Commonwealth. I have prepared an amendment which conserves what my hon. friend wants. It is as follows: No elector, entitled to a qualification existing at the establishment of the Commonwealth to vote at elections for the more numerous House of the Parliament of the State shall, whilst that qualification continues, be deprived by any law of the Commonwealth of the right to vote at elections for the House of Representatives. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p296
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Sir GEORGE TURNER: Why not make it the suffrage at the time the uniform law is made. Whatever the qualifications are at the time the Federal Parliament makes the uniform law, they should be preserved.
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Mr. BARTON: Perhaps the hon. member did not catch what I was saying-that before or after the establishment of the Commonwealth a State may make a suffrage which would be totally distasteful to the rest of the colonies. I am not speaking of adult suffrage. Supposing we take some extension, which may include persons of age whom the other colonies would certainly not include, or might include persons who are not of age. These are the only extensions beyond adult suffrage which are likely to to be made if ever made. I am not going to say what anyone's anticipations may be upon the question, because we all have our own opinions; but my hon. friend has not seen this, that if the extension is made by the Parliament of the State, before or after the establishment of the Commonwealth, and before the Commonwealth has made a law, the Commonwealth cannot make a uniform law unless it grants all over the Commonwealth such an extension. That would practically prevent the Parliament of the Commonwealth, if such an inapt extension were made in one State, from ever making a uniform suffrage, unless the suffrage in this offending State were by the State itself regulated back to something reasonable. It cannot be the intention of hon. members to tie the hands of the Federal Parliament in that way. No one wants to interfere with the adult suffrage in South Australia, but surely it is the right of the Commonwealth to make such a uniform suffrage as would not compel it to grant every extension that should be wilfully and captiously made by any State.
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What must be clear is that the Framers of the Constitution did seek to preserve the rights of State citizens albeit did not desire to basically have to be subjected to some form of wilfully and captiously legislation and hence the ADULT limitations was put on albeit not in regard of other conditions as the Hansard records of the Constitution Convention Debates indicates.
Hansard 10-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. WISE: But we have to frame a scheme which we can put forward to each state, and point out to them that even in the future they are not going to lose their separate national identity, which will be preserved for all time, just as it is to-day. Hansard 15-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Hon. F.W. HOLDER: I am glad my hon. friend has made that suggestion, because it gives me an
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excuse for taking two or three moments more which I should not have occupied without good excuse, because I feel that I have already trespassed for some time upon the attention of the Convention. But the interjection of the hon. and learned member demands an answer, and I am prepared to give one. He says that to do what I have just suggested would endanger the very existence of the federal parliament as such. My answer is that the state rights, of which I am an advocate, are guarded within the terms of the
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constitution itself, and the preservation of that constitution I have already stated my determination to insure. The state rights are preserved first, as I have already put it, by the reservation to the various states of all powers not expressly handed over to the federation, are preserved next by the absolute maintenance, except by the consent of the majority of the states themselves, of the constitution in its present form in the form under which we federate and that in these matters which are within the four corners of the
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constitution, which in no way threaten its existence or impair its efficiency in these matters simply of dispute between the two houses, it seems to me that we do not endanger the federation.
Mr. TRENWITH (Victoria)[4.55]:
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Our early experience taught us that unification for all the, purposes of government was not desirable, and thus there is in our midst, and in all the colonies, a strong determined feeling that while we have federation we 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p297
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[start page 604] must still maintain the sovereignty of the states. There are some who urge that the sovereignty of the states for state purposes necessarily implies the sovereignty of the states in larger national questions. I have no hesitation in expressing the opinion that state rights can only be preserved, the sovereignty of the states can only be preserved, by handing matters over to the federal parliament which cannot be dealt with by the states themselves by making the federal objections as few as possible, but having decided what is federal, leaving the federal power sovereign with reference to that. Thus we create two distinct governmental entities. We leave sovereign states with power to deal altogether apart from federal interference with such questions as they refuse to hand over. Then we create a federal power sovereign within its own realm, competent to deal without the interference of the states as states with questions that are handed over to it. Any other form of government will not give us what we require as shown by a review of the history of our colonies. Having in view the influence of this proposal upon the possible success of this federal movement, I should like briefly to review the attitude of the people of Australia with reference to their rights and powers as citizens. In each of the Australian colonies we began with a comparatively restricted franchise, and we developed a system of plural voting. In several of the colonies the franchise has been made complete, unrestricted, and plural voting has been abolished; thus we see the tendency is to demand in the states equal rights as citizens. There can be no disputing that that tendency is growing. It has been recognised that that tendency is growing, so that the principle of manhood suffrage, and the possibility of adult suffrage have been placed in this bill. Now, let us look at what we are doing. We are creating a dual citizenship, a citizenship which makes a man a citizen of his state and a citizen of the commonwealth. Experience has shown us that the citizens in the state will not brook unequal citizenship-they will not brook one voter having more power than another voter. We have acknowledged that to be so by creating, with reference to the election of senators and members of the house of representatives equal powers to the states within their states. Now, have we any right to assume that when we create another form of citizenship the commonwealth citizenship the same man who would not brook unequal citizenship in the state will submit to unequal citizenship in the commonwealth? The Hon. H. DOBSON: It is a dual concern! Mr. TRENWITH: I am dealing with the true form of citizenship. From the inception of the commonwealth, if we are successful in establishing one and it depends largely upon whether we deal wisely or unwisely with this proposal whether we shall be successful when we have established the commonwealth, every man inside the commonwealth, in addition to being a, citizen of a state, is a citizen of the nation that is created out of this effort. The Hon. H. DOBSON: You want the citizen of the state to be merged into the citizen of the nation! Mr. TRENWITH: I want him to retain his dual position; but, in relation to it, to maintain a proper principle of equality with each other citizen. As a citizen of the state equal with any other citizen of the state, and the citizen of the commonwealth equal with any other citizen of the colony. Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Hon. Dr. COCKBURN:
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. Unless we have some great civil war, which will confuse all the issues and blur all the party lines in Australia, and which I hope we shall never have, we shall have the same parties here as existed from the first in America. Parties will be clearly defined: there will be those who wish to see local government, home rule, and state entity preserved; and those who wish to see all these safeguards of the liberty of the people blurred, confused, and obliterated in a central government, which will be situated at [start page 952] a place too far distant for the people of Australia ever to be able to ensure effect being given to their views. I thoroughly believe that this last proposal maybe looked upon as, indeed, a proposal for finality. It is a final proposal
for the extinction of the senate, of state rights, and of liberty. The following is another clear example that regardless of the provisions of subsection 51(xx) as they might be interpreted to apply it could not in anyway rob the States of their internal affairs as like Subsection 51(i) subsection (xx) cannot interfere with entitlements and prohibitions in 50 subsection 51(xxxv). The debate makes it very clear that sovereignty within the State is to accepted for so far it does not interfere with the trade and commerce provisions of subsection
51(i). Likewise the same should be visa versa, as was intended by the Framers of the Constitution..
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Dr. QUICK (Victoria)[11.38]: The last speaker, I believe, is one of the strong advocates of state rights in this Convention. He will remember that the other day the right hon. the Premier of New South Wales challenged the advocates of state rights to define those rights, to put in the bill such rights as they claimed were state rights, and in this very clause 52. Now, I would remind the hon. member, and other hon. members who are interested in obtaining, as far as possible, the right of the states to local selfgovernment, that the question involved in the amendment submitted by the hon. and learned member, Mr. Deakin, is one of very great importance indeed. For my part, I think it is one of those state rights which ought to be put in the bill, and not left in any doubt whatever. [start page 1050] Mr. SOLOMON: Hear, hear; but this is not the right place for it!
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Dr. QUICK: The question whether this is the right or wrong place is a minor question. The question we are dealing with now, and with which we ought, to deal, is whether this state right is to be put into the bill? I shall support the amendment. I do not think the objection raised by the hon. member, Mr. Barton, the revenue objection-is of sufficient importance to justify the rejection, of the amendment, and I will point out the reason why. It is not for one moment suggested that we should take away from the, states the right of imposing liquor laws. Each state will have the right to pass a liquor law-a law for the regulation of liquor. Each state has that right preserved to it under its existing constitution; it consequently has the power reserved to it of reducing the revenue of the commonwealth. Mr. SOLOMON: Then where is the necessity for the amendment?
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Dr. QUICK: The second question is, whether the state shall have the additional right of regulating the importation of liquor. I submit that if a state has the right to regulate the sale of liquors produced within its own territory, it also ought to have the right to regulate the sale of liquors imported from other countries. Mr. SOLOMON: So they have at the present time! Dr, QUICK: No; I do not think they have. I think it is necessary for this amendment to be passed to give the states that right, for, as has already been pointed out, this bill provides that trade and commerce between the various states shall be absolutely free, and this clause is in conflict with that provision, consequently something must be put in to modify, the extreme words " absolutely free." Mr. Solomon: That is the clause I say it ought to be inserted in! Dr. QUICK: I understand that the hon. member, Mr. Solomon, is only arguing that this is the wrong place to put it in that is a minor question; it does not matter whether the amendment is put in here or in clause 89.
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Mr. SOLOMON: There are several other suggested amendments which will come in clause 89! Dr. QUICK: That is a matter for the Drafting Committee. I think that this question is one that ought to be considered from a general public federal point of view rather than from a revenue point of view. Serious consequences might follow, as has been suggested by the hon. and learned member, Mr. Barton; but, in my opinion, the question of local self-government is of more importance than the revenue question, and I believe that there are a large number of people in the states who, if they thought they were going to be deprived of the right of regulating the internal liquor traffic of their states, would vote against a constitution that would deprive them of that right of local self-government. Therefore, I contend that that right ought to be secured and placed beyond all doubt, and it can only be secured, and placed beyond all doubt by providing for it in this constitution bill; therefore, I shall vote for the amendment. Mr. GLYNN (South Australia)[11.42]: I think this question is a more difficult one than some of the members seem to think. The case of Leisey versus Hardin, decided in America, has shown the necessity of our dealing with this question, because the decision in that case was: that the sale of intoxicating liquors in, 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p299
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the original packages in the state was unconstitutional and void. The object of this amendment is to get rid of the effect of that decision. The Hon. A. DEAKIN: There have been later decisions in cases in which the Wilson act was challenged, and that act was up- [start page 1051] held. The Supreme Court of the United States has held that it provides a solution of the difficulty. Mr. GLYNN: It shows the necessity of making such a provision as the one now suggested; but if that be put in, we shall still be faced with a difficulty out of which we should not ask the Drafting Committee to get us, for it would impose almost a superhuman task on the Drafting Committee to say what amendments are really necessary in this clause. I say this because there have been several decisions from 1885 down to last year on this question under the Canadian act, and we shall be bound by those decisions, because some of them are Privy Council decisions-at the same time, I would remark that the provisions of the Canadian act are not exactly the same. They are for the regulation of trade and commerce, not between states and states, but with other countries; nevertheless, if hon. members read them they will find thisThe Hon. A. DEAKIN: In Canada the central government retains the residue of powers; here they do not!
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Mr. GLYNN: I understand that. One of the grounds of the decision is that a license which amounted, practically, to a prohibition of sale was void-that the residue of powers remained with the central government, and that the local legislatures were limited to such powers as they got by express delegation. But beyond that, there were other grounds: that they had no such power, because it was an interference with the powers of direct taxation conferred on the central government. The upshot of the decision in Canada is that a license that amounts to a prohibition of sale is illegal. I merely mention this for the purpose of showing that you cannot, without considering, this in conjunction with the American cases, say what ought to be done, because clause 89 must be read in conjunction with the sub-clause before us. That is an addition to our difficulty. It does not exist in the case of Canada, and I say, therefore, that we ought to pass this amendment, and ought also to accept the suggestion of the hon. and learned member, Mr. Barton, and postpone the further consideration of the matter until we meet in Melbourne, because if hon. gentlemen will look through a synopsis of the cases to be found in Wheeler's "Confederation of Canada," published only last year, they will come to the conclusion that it is exceedingly difficult to frame such an amendment of this clause as will place beyond all doubt the question whether the power of prohibition by the states of the sale of intoxicating liquor within their boundaries is preserved. The Hon. H. DOBSON (Tasmania)[11-45]: I hope that the Committee will agree to the amendment suggested by Victoria, and which has been supported by the hon. and learned member, Mr. Deakin. I think we shall make a very grave mistake if we leave too many important and contentious matters to be discussed in Melbourne. Suppose we now turn out a completed bill save and except the financial clauses we shall have all our work in three or four weeks in Melbourne to adjust those, and put the finishing touches to the constitution. The Hon. E. BARTON: There is no reason why we should not sit five or six weeks, or even longer, in Melbourne! The Hon. H. DOBSON: I think that we shall get very tired if we sit five or six weeks in Melbourne during the hot summer weather. We are doing our work so well that we shall probably not have to sit so long as that in Melbourne; but, of course, we shall sit there longer if necessary. This question is so important and complicated that I think the Drafting Committee ought to have a little more instruction the question of prohibition. It appears to me that those people in all [start page 1052] our states who have quite as earnest convictions on this matter as some of our friends have on the question of deadlocks, will not be satisfied if they think the federal constitution is to put a stop to their getting a measure of prohibition. I presume that a zealous teetotaller is always looking forward to the time when be will convert his fellowmen, and win success, and get a measure of prohibition, and, in my opinion, our constitution will have a very great blot upon it unless we do, apart from the question of revenue, provide some means to enable the states to prohibit the importation of liquor, and I think it would help a solution of the matter very much if the constitution at the same time said that a colony like South Australia or Victoria, which is a wine-producing colony, shall not have that important industry taken away from it, but shall be able to manufacture wine, beer, ale, or spirits, but for export only. So I really think the Drafting Committee have to face an important question, not simply that of the carrying of this amendment, which is a very simple matter. They have to consider the question of providing for the question of prohibition, and, at the same time, for providing for the protection of the natural industries of South Australia and Victoria, and making the sale of what they produce in harmony with the prohibition law of any state. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p300
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The Hon. S. FRASER (Victoria)[11-47]: I shall vote for this addition to the bill. In the province of Nova Scotia, in the Dominion of Canada, there is prohibition, and I think it is only right that each colony should have the power to regulate its own internal affairs.
The Hon. Sir W.A. ZEAL (Victoria)[11.48]: I am in favour of this amendment. I would be willing to follow the advice of the hon. and learned member, Mr. Barton, had not a very important provision been passed by the Committee last night in regard to the appointment of people to high positions, which I shall oppose most strenuously when it comes on for consideration again. The CHAIRMAN: The hon. gentleman cannot discuss that matter now.
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The Hon. Sir W.A. ZEAL: I seldom address the Committee, and I think that I might be allowed a little latitude in explaining why I am going to vote as I shall on this occasion. I do not think that any hon. member will impute to me that I have taken up too much time, It has been my continual study throughout the sittings of this Convention not to repeat myself. I am sorry that while I was absent last night the clause to which I have referred was passed. In the present instance I shall vote for the amendment. The Right Hon. G.H. REID (New South Wales)[11.49]: Since it is evident that a serious vote must be given on this matter, I wish to add a word or two to what I have already said . In the first place, it is clear that under the provision that all the powers that are not expressly given to the federation are reserved to the states, the power of regulating the consumption of intoxicating liquors is reserved to each state. The Hon. E. BARTON: Quite so!
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The Right Hon. G.H. REID: Therefore, the question about customs revenue is irrelevant. That is a question of the power that already belongs to the state, it is not a question we can consider at all. The constitution is so framed that these colonies will have the power to do what they like in reference to the consumption of intoxicating drinks within their own boundaries. Therefore, the revenue question is out of court. It is an incident of what we are doing. The value of these observations is that they direct the attention of the Finance Committee to a state of things which must be specially provided for. Putting aside the revenue matter, as a matter for the Finance Committee to [start page 1053] deal with, we have simply to face the proposition that we must make the constitution clear upon that point about which there is no real doubt as to our intentions. Under these circumstances, although I would prefer the matter to be made clear in another clause, as there is going to be a division upon the merits of the case, I shall vote for the insertion of the words. The Hon. E. BARTON (New South Wales)[11.51]: I intend to vote against the amendment. The question of the customs revenue cannot be lightly disposed of, because as the matter stands now, the state has power to deal with the consumption of liquor within its borders. Under the constitution as it stands, it would be in the same position as the state of Iowa with regard to the law which it passed, that is to say, it might not be able to deal with the importation and sale of original packages, but would still have entire right to control consumption. There may be a great difference between the two powers, and it would make a great difference to the customs revenue-a difference which I do not think we can ignore. With regard to the general merits of the question, I think it would be unwise and impolitic to specially enlarge the powers of the states in dealing with the sale of one class of goods, while their powers are limited with regard to the sale of every other class of goods in relation to the condition of internal politics. If the subject of a sale is anything apart from intoxicating liquors-it may be a poison, or one of a thousand other things-while the state can deal with its sale and consumption within its borders, it cannot prohibit its importation if the commonwealth is to regulate trade and commerce. If you are to take away this power of regulating trade and commerce from the commonwealth in respect to one class of articles, it would be logical to take it away in respect to others. Imagine the state of chaos which that would produce. You would have given the commonwealth a nominal power to deal with the regulation of trade and commerce; but with the other hand you would have taken it away. If you take it away in regard to this large class of subjects you might take it away with regard to all subjects. The Hon. I.A. ISAACS: There is no power in the commonwealth parliament to deal with this matter, though there is in the federal parliament of the United States!
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The Hon. E. BARTON: There is power to regulate trade and commerce, though clause 89 stands somewhat in the way, and I propose to amend that clause so as to prevent the commonwealth parliament from being denuded of the powers it would otherwise have. To give the states power to deal with the importation of a class of goods which are the foundation of the customs revenue in all the colonies, would be an anomalous position to set up. If this power is given in respect to the consumption of alcoholic liquors, you p301 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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may as well grant it in respect to everything else, and then what becomes of the regulation of trade and commerce by the commonwealth? I suggest that clause 89 should be amended in some such way as will leave the commonwealth in its proper position as the regulator of trade and commerce . Let the states be allowed to deal with the consumption of intoxicating liquors; but do not let them interfere with the trade and commerce of the commonwealth. It does not correctly state the position to say that, by carrying the amendment, you put matters in the position in which they are to-day. Under the commonwealth matters cannot be in the position in which they are to-day. There must be these alterations which are necessitated by the solidification of the states for some purposes, one of which is to give power to the commonwealth to regulate trade and commerce so as to prevent its being [start page 1054] hampered by the individual act of anyone state. It is against all principle, and impolitic, to impose a disqualification with regard to this class of goods, which you do not impose with regard to other classes of goods. It would be much more logical to allow the commonwealth to legislate upon the consumption of alcoholic liquors; but that is a power which, I take it, the states will not surrender. In that case, let them be satisfied with the power to deal with the consumption of alcoholic liquors, which they can deal with effectively. Do not let them ask power to control the action of the commonwealth in respect to one of the most essential powers of the commonwealth. If this power is to be given up in regard to one class of goods, let it be given up in regard to all; but, if it is to be retained at all, let it be retained in regard to all. The Hon. A. DEAKIN: It is only in regard to intoxicants that a question of principle arises!
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The Hon. E. BARTON: I know that a great many people think that it is against morality to consume alcoholic liquor, while others are actuated by the idea, "I cannot drink, therefore you must not." I am not going to discuss those parts of the question. I want to leave the liquor question as a matter of internal state regulation out of consideration altogether. What I suggest is that the power to regulate consumption which the states possess today, and would possess under the commonwealth, will enable them to do effectually what is wanted. If you give them the power to prohibit importation, this may happen: Goods destined for transit from state A to state C may in some moment of fanaticism be prevented from passing through state B, and thus dealings between state A and state C may be rendered impossible, or else very inconvenient, because of the long round about deviation which would be required. Such a state of things would set at nought the powers of the commonwealth to regulate trade. I submit that this cannot, and ought not to be allowed, and that we shall act wisely in negativing the amendment. Mr. MCMILLAN (New South Wales)[11.57]:I hope that in discussing this matter our views in regard to the liquor traffic will be carefully excluded. I do not know how this question has been dealt with in other parts of the world; but I can see that by giving the states power to forbid the import of liquor you have an absolute abnegation of intercolonial free-trade. We know very well that in dealing with the customs, if you have an ad valorem duty upon only one article, it leads to a wholesale system of espionage, delay, and inconvenience. I fail to see how you can give power to the states to prevent the importation of liquor unless you give them full power over the means of transit, over their borders. Although an affidavit might be given that there was no spirit on board, a train might be stopped on the border while a search was made under the reasonable belief that there was liquor on board. You might have the whole of the border trade of a state interfered with in that way by the officers of the state. Such a state of things would lead indirectly to the reerection of what would be practically custom-houses on the border. A vital principle connected with federation from the national and commercial point of view is that it will give absolutely free intercourse between the states. Let the states who want to prevent the consumption of intoxicating liquor within their borders provide that all spirits shall go into public bonds. We can make the selling of spirits a matter for the states to regulate. An HON. MEMBER: That is all we ask! Mr. MCMILLAN: Let the states have power to deal with the consumption of intoxicating liquors within their borders; but do not give them a general power to ransack every means of communication [start page 1055] across their borders. No doubt great misconstruction will be placed upon the vote which is to be given upon this question. I am anxious that every state should have its own autonomy. I am very
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anxious that the liquor traffic should be regulated on purely democratic local option principles. At the same time, I think that by doing it as attempted it might be a great blow at intercolonial free-trade.
Mr. SOLOMON: Is that necessary at all? Is there any portion of this bill which gives over the power of the states to the commonwealth to regulate the traffic in liquor inside the boundaries of the states? p302 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
The Hon. I.A. ISAACS: Yes, in clause 52. The American decisions are very much in point; but the Canadian decisions do not apply at all. Clause 52, when it confers on the commonwealth parliament power to deal with and regulate commerce between states, impliedly by that excludes the states from making any regulations with regard to inter-state commerce, otherwise they might throw everything into disorder.
The Right Hon. Sir E. BRADDON: But not traffic within their own boundaries? The Hon I.A. ISAACS: No; but the United States decisions are that it is still inter-state commerce, so long as the subject of that commerce remains in the hands of the original importer, and in an unbroken package. Mr. Symon: What you want to do is to regulate the consumption. That is not interfered with!
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The Hon. I.A. ISAACS: As soon as the liquor comes into a state, and goes into consumption or use in the state itself, the state shall have the same power to make regulations with regard to that use or consumption as it can with regard to liquor in its own territory. Mr. Symon: Where is there anything in the constitution to take that power away? The Hon. I.A. ISAACS: I pointed out earlier in the day that clause 52, subclause I, prevents a state from making any regulation with regard to importation.
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And The Hon. E. BARTON (New South Wales)[2.41]: The insertion of the word "ocean" is intended to preserve the line of demarcation that generally exists between federal powers and state powers, the commonwealth being intrusted with matters that are external, and matters of internal regulation, being intrusted to the several states.
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And The Hon. I.A. ISAACS (Victoria)[2.48]: I hope that the hon. and learned member will not move an amendment to that effect. I think that the meaning of the word "quarantine" is pretty well known. There is no doubt that leaving the sub-clause as it is preserves to every state the power that it now has to make laws in relation to all such subjects. It does not vest an exclusive power in the commonwealth to pass such laws. The state can pass its own law, and alter it as it pleases; but I think it is well to do as was done in the Canadian act in that respect-to give a power which the commonwealth might, in case of emergency, employ for the sake of the general health power to make a law respecting quarantine, as it is generally understood, so as to preserve all the ports of the commonwealth, not only from infection from abroad, but also from the danger of any infection which might have reached one port of the commonwealth spreading to the rest of the commonwealth. I think that there is no great harm in retaining the word "quarantine," and that, if we were to eliminate this word, the day might come when we would very much regret having done so. Hansard 21-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Sir JOHN DOWNER.We are handing over to a Federal Government certain limited authorities in the easiest way, preserving to ourselves all the authorities which we think we can better exercise. And Sir JOHN DOWNER.-
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We keep our property; we are left to the free exercise of our brains and bodies; there is no interference with the individual; state rights are to be preserved. Surely, collaterally with that, state rights ought to be preserved too.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
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Australasian Convention) (Chapter 33 of the CD) 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p303
Mr. KINGSTON.-Section 100 preserves the existing legislation. Mr. DEAKIN.-Yes; and section 101 provides that 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.
5 Therefore, Colonial laws would remain but State legislation subject to Commonwealth law.
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Mr. REID (New South Wales).-I have already spoken on this matter so fully that I certainly do not propose now to say very much, but I do regret that the Premier of South Australia does not pay some attention to a set of considerations which, although they do not affect his colony, are very serious matters in one of the colonies invited to join in this union. And I must press on my right honorable friend to recollect that the very basis of this attempt at federal union was that, as far as possible, consistently with federal union , the rights of the several states, and the sovereignty of the several states, should be preserved. Indeed, the original resolution, upon which the whole movement was based, spoke of the voluntary surrender of rights and privileges. We have gone largely forward up to this point, with a great deal of success, on these essential lines. We have endeavoured to deal with broad principles, irrespective of the way in which they may affect this or that part of Australia. For the sake of these broad principles we have all been willing to leave the actual working of the Constitution, in any precise direction, to the fortune of party warfare in the constituencies after federation is accomplished. Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.We must see to-day that the rights of individuals, even unpopular individuals, are preserved in the Constitution. I think Sir John Forrest said that I personally had not got sufficient respect for the rights of individuals. Hansard 3-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS (Victoria).-I should like to remind my honorable friend (Mr. McMillan) of what took place at Adelaide. If he looks at the report of the proceedings of the Convention there, page 732, he will see that Mr. Holder clearly expressed his views in the following words:-
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What I wish is that these rights should be preserved which have been acquired up to the time that the Commonwealth makes its franchise. Hansard 4-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. OCONNOR (New South Wales).-I do not think that anybody can doubt the absolute correctness of the criticism of the leader of the Convention upon the words of sub-section (12) as they stand in the Bill at the present time, as a matter of law. But the debate on this question has satisfied me that there are many practical reasons why those words should remain unaltered. I am sure Mr. Barton only expressed his opinion of the words themselves, and that be has no very great wish either one way or the other. I will state briefly why I think sub-section (12) should remain as it stands. We have, over and over again in this Convention, shaped our course by considerations as to the practical condition of things. It may be that the words in question are vague, but we find in exactly the same words a distinction, accurate and definite, of the sphere within which this jurisdiction has been already adopted in some Acts passed by the Federal Council, which have been in force for over ten years. During those ten years the fisheries of Western Australia and Queensland have been controlled by those two colonies respectively, and those colonies have exercised very important duties in regard to the fisheries in question. I take it that we shall wish, as far as possible, in regard to all matters handed over to us that we should occupy the place of the Imperial Government, and be able to assure Queensland and Western Australia that we will not derogate from their power of dealing with these matters. Now, although we have preserved, by an early clause in this Constitution, all rights existing under Acts passed by the Federal Council, there would be a danger to those rights if those laws could be amended or dealt with in any way. Interests have grown up, these spheres of influence have been actually used, p304 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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and the laws of these colonies have been brought to bear on them. Therefore, I think it would be undesirable, by altering the wording of this Act, to throw any doubt on the exercise of that jurisdiction. And
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Mr. BARTON.-We ventured to make an addition to the clause which, I think, will meet with the approval of honorable members. There will be cases in which officers will be transferred to the Commonwealth, not with the department in which they have been serving; their departments may not be transferred at all, but they may be officers necessary to the service of the Commonwealth, and there may be the consent of the Governor in Council of the state obtained to their being transferred. In that case they should not be prejudiced either. I think honorable members will admit that if a case of that kind arises, and the Commonwealth wishes to have the services of an officer, and it is arranged with the state he is serving that he shall be transferred to the Commonwealth, that transfer should not be carried out without his rights being preserved. Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MCMILLAN.-Then I say, leave it alone. We are dealing now with, a written Constitution, and with a Federal Government, in which the rights and, privileges of the states are preserved. If, after all these arrangements and all this circumlocution, a law is not passed it will be better to wait until the people have made themselves thoroughly acquainted with the subject. One of the great curses of modern politics is the desire to legislate on everything. Hansard 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. WISE.-My friend has anticipated me. That helplessness drives the American to the referendum because of the utter ineffectiveness of the political machinery. Again I will quote-and it is the only quotation I shall make-a passage from the work of Mr. Cree, which I recommend to the perusal of all interested in the subject. Although his book is written in the strongest terms in advocacy of the referendum, every argument he uses shows that his advocacy rests on a confessed mistrust of Parliament, which cannot, in any degree, be applied to a country where the people are proud of their Parliaments. Mr. Cree, after speaking of the corruption and tyranny of the party machinery, and the inability of the individual voter to make his will felt in consequence of the tyranny, proceeds:Party government means supremacy of party leaders. In those leaders is practically vested the power to subjugate all the official agencies of the State to their will, so that such will becomes that of the State, and government by the people is only a fiction instead of a fact. The leaders of parties frame all political issues, declare all party policies, name all candidates for office, and the electors but choose between the rival organizations. But that is no more than a power to say to which oligarchy of managers or "bosses" they will confide the control of the State. Under such a system the party, leaders do not need to consider public opinion, further than its approval or consent may he necessary to secure the adoption of their avowed purposes, and the election of themselves to power. But great and important as is this power of ratification or rejection of party programmes and party leaders, on the part of the voters, it leaves them without any real positive political initiative, and limits them to a sort of negative action. A choice at the elections between corporate parties is all that they possess, and this not only does not involve, but actually excludes, all expression of opinion on the part of the voters unless the contending parties represent clearly-defined conflicting policies on specific questions, or really stand for permanent diverse views and tendencies. The contention of the parties for the favour of the electors assumes the fact of the existence of one or the other of these supposed cases. On no other assumption can the existence of party be for a single moment justified. But so far as representing a clearly-defined line of action on specific measures of policy is concerned, we cannot recall a single case in the history of the United States where any great national party has done it. And
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Mr. WISE.That distinction is, that this is a union of equal states, whose equality, or, at all events, whose individuality, is to be preserved so far as is compatible with the higher interests of the community. Then there is another assumption on which we proceed, but which, I think, my honorable friend ignored. That assumption is that federation is going to be worked by men who wish to keep the Federation together, and not by men who are going to use all their ingenuity to destroy it. Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.p305 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves choose to change it, is contained in the provision that the interpretation of the Constitution by the High Court is to be final. Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through their Parliament the power of the purse-laying at their mercy from day to day the existence of any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act which is unfavorable to the people having this security, it must in its very essence be a free Constitution. Whatever any one may say to the contrary that is secured in the very way in which the freedom of the British Constitution is secured. It is secured by vesting in the people, through their representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of securing absolute freedom to a people than that, unless you make a different kind of Executive than that which we contemplate, and then overload your Constitution with legislative provisions to protect the citizen from interference. Under this Constitution he is saved from every kind of interference. Under this Constitution he has his voice not only in the, daily government of the country, but in the daily determination of the question of whom is the Government to consist. There is the guarantee of freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every one has sought to strengthen. How we or our work can be accused of not providing for the popular liberty is something which I hope the critics will now venture to explain, and I think I have made their work difficult for them. Having provided in that way for a free Constitution, we have provided for an Executive which is charged with the duty of maintaining the provisions of that Constitution; and, therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will determine questions arising under this Constitution, and with all other questions which should be dealt with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free: next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a court appointed by their own Executive, but acting independently, is to decide what is a perversion of its provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but it is appointed for the purpose of saying that those who are the instruments of the Constitution-the Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. Having provided for all these things, I think this Convention has done well. The question for us is this-the question for the electors is this: Is this a Constitution which will enable a free people to come together, and in community together to work out their own destiny? Who can deny it? Is it a Constitution which gives all reasonable and liberal guarantees of freedom? That can only be answered in one way. Is it a Constitution the action of which, until amended by the people, is preserved and safeguarded? There is only one answer to that. Is it a Constitution which the people themselves, by their will expressed by their Parliament and themselves, are able to alter to suit their needs under conditions of reasonable thought, without unreasonable difficulty? There can be no answer but one to. that question. Then, if the Convention. has done those four things, I take it that, it has done its work.
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The following should be held in consideration where Mr Howe pursued pensions in that corporations would go bankrupt, etc. His Honour CALLINAN J stated;
QUOTE The founders would have been well aware of the capacity for causing national financial consequences, of corporations and their predecessors, various forms of partnerships [1080]. The collapse not just of banking
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corporations but also of land and pastoral corporations would have been very fresh in their minds 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p306
when they wrote the Constitution. As I have said in other cases[1081], judges, as unelected members of judicial institutions, should be careful about forming views about social and economic conditions. But even if they can, do or even must, in some cases for some purposes, they, including judges of this Court, should not use those views to alter the Constitution.
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836 It is unnecessary to repeat what was said in the speeches for the bills for the referenda seeking a corporations power broad enough to cover industrial affairs in the way that the Act here seeks to do. All that I need do is point out that almost invariably, the speakers and Parliament itself, repeatedly, accepted that the relevant constitutional power did not exist.
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837 It is necessary to consider the Convention Debates on the topic. END QUOTE
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Well, without seeking to quote the extensive text about how pensions came about by the collapse of corporations, etc, as it has already been extensively canvassed in my already published books, I do however take up the invitation to consider the Hansard records of the Constitution Convention Debates. Hansard 12-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
Mr. GLYNN (South Australia).-I should like to ask a question with regard to clause 75, as to whether it is intended to leave the right of appeal from a state or the Federal High Court itself direct to the Privy Council, as it stands in the Bill, or whether the matter can be subsequently opened by the Parliament? Mr. BARTON (New South Wales).-I am afraid that if I were to answer questions as to what is intended to be done, I should expose the Drafting Committee to a flood of interrogations. I can only say that what we intend to do is to carry out the decisions of the committee. Of course there are one or two cases in which the [start page 2439] decisions which have been arrived at require a certain amount of interpretation in the light of the debates, and in those cases we shall take what was said, as well as what was put in the Bill, for the purpose of ascertaining what the movers of provisions desire. In the case of the proposal my honorable friend carried, and which was put as a proviso to clause 74, it is evident that the words as they appear are only in the nature of instructions to the committee , and they will have to be interpreted in the light of statements made by my honorable friend in answer to inquiries by me. That is the course that will be pursued. When an amendment, as carried, is intended only as a suggestion to the committee, it will be interpreted in that way.
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It means that some parts of the Constitution, such as Section 44 of the Constitution, were revamped by the Drafting Commission but not intended to alter its meaning as it was prior to the revamping of the various clauses it had about office of profit in chapter 44 relating only to Commonwealth of Australia office of profit and not as was claimed by the High Court of Australia in Sykes v Cleary it related to State office of profit. Likewise Sue v Hill was wrongly decided due to incorrect interpretation by the High Court of Australia. I view that if after more then one hundred years the judges cannot even get the basics rights no wonder they made a total mess of the Amendment Act regarding WorkChoices legislation. * Surely you cannot expect the judges to research the entire debates to try to get an understanding of what constitutional meanings are?
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**#** I see no justification in them taking out of context material and by this purport constitutional provisions to have some kind of meaning where in fact this is contrary to the intentions of the Framers of the constitution. If they cant handle the job then they shoul d vacate their positions but they cannot argue, as John Howard too often does, that he didnt know, no one told him, etc. they are appointed to do a specific job and that is to appropriately interpret the meanings of the Constitution and they are getting paid for this to do so and as such must be competent in doing so. In Victoria we had a Chief Justice retiring from the Supreme Court of Victoria which I understood actually never was a lawyer. And, I see no need for a judge to having to be a lawyer, in particularly not if we end up with the sheer and utter nonsense such as
in Sue v Hill where the Court did not hand down a decision upon LEGAL FACTS but upon LEGAL FICTIONS. It must be considered that the Framers of the Constitution intended that provisions in the Constitution should be read together. Various other statements recorded in the Hansard records of the Constitution Convention Debates underline this to be so as to subsection 51 that they must be read together to interpret the intentions of the Framers of the Constitution. Therefore Subsection 51(xx) must be considered also but not restricted only to subsection 51(xxxv) but also with any other constitutional provision, including for example Section 116.
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-You are bound to read the two provisions together, and avoid a repugnance, if possible, and I think you could avoid a repugnance.
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To give a better perception as to how this statement was arrived to I am quoting more extensively from the Hansard below. Therefore where the usage of subsection 51(xx) would be repugnance to the application of subsection 51(xxxv) then subsection 51(xx) must be given a narrowed application to avoid the prohibition specifically stated in subsection 51(xxxv) to be offended against. It could not be ignored that the Framers of the Constitution when framing this Constitution were aware of what they were prohibiting in subsection 51(xxxv) and having done so could not be held to have been ignorant to what they intended with subsection 51(xx) and as such their intentions, many of which were expressed in statements quoted in this document, then must be appropriately considered.
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. REID.-I do not like to refer to a certain burning question, although it has ceased to be so burning now. But take the case of the rivers. Irrigation is within the sovereign powers of a state. As to navigation, the same subject is within the sovereign powers of the Commonwealth. In administering the respective laws, things may be done which on one side or the other may be considered to be wrong. As the Bill at present stands, if the law of the state with reference to irrigation conflicts, and is inconsistent with the law of the Commonwealth with reference to navigation, it is simply sufficient to point out to the court that the state law is inconsistent, and down goes the state law, apart from any element of equity or fairness. And, although there might be an opportunity to so adjust the respective claims as to do justice between them without injuring either, none of these considerations would come in. It would only be necessary to point to the Commonwealth law, and to show that the state law was inconsistent with it. Mr. HIGGINS.-It must be a valid Commonwealth law. Mr. REID.-Yes, but a valid Commonwealth law may in the interests of navigation prevent irrigation. It may absolutely prevent any water conservation. I do not suppose such a thing would ever happen, but I only refer to it by way of illustration. If it did happen the aggrieved state, on which a terrible injury would be inflicted, has to appear before the High Court to complain of this. It would be told, it is true this is an abominable wrong, and we only wish we had power to redress it; but this Act deliberately states that when the federal law comes into collision with a state law, passed in the exercise of the state's sovereign powers, still that law must go down, just as if it was an interference with a subject handed over to the Commonwealth. There is no distinction between the two cases. That is a very dangerous position of supremacy in which to put the Commonwealth. It practically has this effect, in that very wide and nebulous area where the sovereign, [start page 2270] rights of the state and the rights we wish to hand over to the Commonwealth come into collision, without any sort of consideration to the rights or the wrongs, the law of the states as to its sovereign powers must go down. If we intend that, well and good. But if it is inserted in the Constitution I can conceive a very great handle being made of it by those who would say that we have to leave independence to the states in connexion with every subject not handed over to the Commonwealth, and that, while affecting to do that, we practically put the states in great danger, because their laws made within their sovereign powers may happen to come into collision with the Commonwealth law. Mr. OCONNOR.-Would not that contention be involved in the interpretation of clause 99? 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p308
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Mr. REID.-That is where it seems to me the difficulty would come in. In a clause before 101, which in my copy of the Bill appears as clause 103, it saves the Constitution of the states in respect of all matters not handed over to the Commonwealth. But when we turn over the page, and come to clause 101, we find that it practically overrides this provision, and says-"True, we leave to you all those rights which are not taken away from you in this Constitution as matters of legislation; but as to all those rights we have left to you you must hold them subject to the risks of a federal law coming into collision with them." I am speaking of a federal law on a federal subject coming into collision with a state law. In case of that collision the sovereignty of the state goes without any hearing on behalf of the state. The court would simply have to decide that the state law came into collision with the federal law, or was inconsistent with it, and then the state law is out of court without any chance of redress. Do we propose to leave the Constitution in that state? If so, section 101 overrides the previous section, and makes all those rights reserved to the state subject to collision with Commonwealth legislation on other matters, and in such case the Commonwealth law shall prevail. Let us take the addition to clause 52, which was made at my instance, about the waters. That is, a case where there are two jurisdictions over the same thing for different purposes. I am afraid that those words added at the end of section 52 would be absolutely in conflict with section 101. If the Commonwealth legislate so as to prevent, in the interests of navigation, water conservation-a thing we do not conceive of, but which may be used as an illustration-then the state would go to the High Court and complain of the action of the law of the Commonwealth. The state would contend that that Commonwealth law abridged the rights of states in regard to water conservation, as section 52 expressly provides that the rights of the state to a reasonable use of the water shall not be abridged. The state would come into court complaining that the law of the Commonwealth had destroyed the special provision made in section 52; and the court would then have to look at the Commonwealth law, and then at the state law. There might be a state law sanctioning a work of water conservation, and there might be a Commonwealth law forbidding water conservation in that part of the colony on the ground that the interests of navigation required that the whole of the water should be kept in the river at certain times of the year, or all the year round. The High Court, under section 101, would find that the state law was inconsistent with the Commonwealth law, and that the Commonwealth law was inconsistent with the state law. What is the provision in section 101? The section reads-"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." If the words are added which I propose to add, the question would assume a different complexion. My [start page 2271] proposal is that at the end of the clause the words be added"Laws made by a state concerning matters over which the Commonwealth has no power to legislate excepted." With this amendment the High Court would find that a law on water conservation, being on a subject on which the Commonwealth has no right to legislate, would not be subject to the terms of this section. There is no doubt that by this amendment the respective laws would be put in a difficult position, and the question would arise, what is to be done? As the Bill stands, no such question could arise in that respect, and it would be infinitely more convenient to leave the Bill as it is, when the whole matter could be decided on definite simple legal grounds. But I must point out that, although the present form of the Bill is far more convenient, and I would gladly leave it as it is, it involves very serious consequences-most serious consequences to the states, especially in the particular matter to which I have referred. I feel that the amendment which was put in, and which has done so much to remove strong feeling on the important question of water conservation, would be valueless. When any dispute arose, and a state law came into conflict with a Commonwealth law under the navigation provision, I feel that section 101 as it stands is really worth nothing, and could not prevail against the Commonwealth law. Mr. SYMON.-What do you propose to put in? Mr. REID.-I admit that this is a very, difficult matter, and I have thought over it a good deal. I propose to give the High Court a special jurisdiction when such difficulties as that arise, so that in point of fact the High Court shall have power to adjudicate or act as arbitrator so as to give the utmost reasonable force to both laws. Mr DOBSON.-Would not that be achieved without the amendment? Mr. REID.-No. Mr. KINGSTON.-Do you fear a Commonwealth law beyond its jurisdiction will be given some validity by section 101?
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Mr. REID.-That is not the point. I am awfully sorry I have failed to be understood after speaking so long. I am talking of a Commonwealth law, perfectly legal, on a subject on which the Commonwealth is competent 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p309
to legislate-an absolutely good law standing by itself. I am talking of another law, passed by a state-a perfectly good state law-on a subject on which the state is sovereign by this Constitution. In reading the two it is found that effect cannot be given to the provisions of both, and that if the Commonwealth law is to prevail, the state law must go down. The language of section 101 is unmistakable. It does not define what, law, but means any law, and any good law of the Commonwealth. It means that a good state law on a sovereign subject of the state goes down without any inquiry. Mr. SYMON.-Do you think the law would go down? Mr. REID.-There is no jurisdiction to go into any question, except as to whether the laws are inconsistent. I am sorry to have to put an illustration which revives feeling, but I hope it will not be received in that spirit on this occasion. Suppose a state pass a law that a large measure of water conservation shall be carried out on the banks of the Darling, and there is a Commonwealth law that on that very part of the Darling nothing shall be done to interfere with navigation-that nothing shall be done to draw water out of the river, on the ground that such a course will make the river unnavigable. That would be a perfectly good law of the Commonwealth, passed in the exercise of its legitimate powers, to secure a result which it was authorized to secure. That being so, what becomes of the state law? It is a good state law, passed to effect a state work which is a lawful work according to the powers of the state. [start page 2272] Mr. BARTON.-Would not such a Commonwealth law, if it abridged the rights of the states to a reasonable use of the water, be an infringement of the Constitution under the proviso of sub-section (8)?
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Mr. REID.-No, not unless those words are added to section 101. The laws passed under clause 52, and which come into conflict, are both legally good. Mr. SYMON.-They cannot be. Mr. KINGSTON.-Not to the extent of the conflict. Mr. REID.-May I ask what the honorable member means?
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Mr. KINGSTON.-A law made by the state would be bad to the extent to which it conflicted with the law of the Commonwealth. Mr. REID.-Would that not be so under section 101? Mr. KINGSTON.-I say it would be.
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Mr. REID.-That is exactly the thing I am saying, and exactly the consequence I am pointing out. The High Court would be compelled to declare the state law on irrigation works to be bad, because it was inconsistent with the Commonwealth law as to the navigation of the river at that particular place. Where, then, is the protection to the state? Mr. KINGSTON.-You cannot avoid that unless you give the High Court power to repeal the Commonwealth law.
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Mr. REID.-Not to repeal the Commonwealth law, but to respect one of the provisos in that very law. What a mockery it is to say that state rights as to the reasonable use of water are being preserved if, when a Bill authorizing such works comes into conflict with the Commonwealth law, the state cannot be heard! If a state law is inconsistent with the Commonwealth law, the former is ordered out of court. If I were appearing for the state, the court would Say-"This fool of an Act says in section 101 that when your law comes into conflict with the Commonwealth law the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. It is very unfortunate, and we think you have a great grievance. It is very sad, but really these are the words of section 101." I say to the court-"Under section 52 there is a provision that nothing shall abridge the rights of the state." The court replies-"That is quite true, but the provisions of this statute"-which I shall not refer to any further in the way I did-"deal with cases in which the laws conflict, and on this very point says that the state law must be ruled out as invalid." Mr. BARTON.-You are bound to read the two provisions together, and avoid a repugnance, if possible, and I think you could avoid a repugnance. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p310
Mr. REID.-Then I think there can be no objection to putting words in to make the provision clear. As the provision is at present, it might be made a very serious handle of. Mr. BARTON.-What about the words you wanted the other day? Mr. REID.-So long as those words are put in at the end of section 101 I shall be satisfied.
Mr. ISAACS.-I am afraid those words will not do. Mr. REID.-I do not care which words effect the purpose. Sir JOHN DOWNER.-What do you propose? Mr. REID.-I intend to move-
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That at the end of clause 101 the words be added-"Laws made by a state concerning matters over which the Commonwealth has no power to legislate excepted." I tell the Convention frankly that unless Something is put into the Bill in the direction I suggest I should look on all state laws as the creatures of Commonwealth legislation, to the extent to which in future they came into conflict with Commonwealth legislation. Mr. ISAACS.-That is clear.
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Mr. REID.-Yes. The sovereignty of the states is preserved in one clause and is taken away in the next. The states retain their sovereignty over subjects that are left to them only so long as they do not [start page 2273] come into conflict with the Commonwealth law. The moment they do that the state sovereignty goes down. Mr. WISE.-That is a necessity of any Federation.
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Mr. REID.-Then all the battles we have had to secure a settlement of the water question have been idle unless we are prepared to shut our eyes and accept what the future has in store for us. I am prepared to do that to a very large extent. But this is one of those burning points which will be used very strongly in a sense hostile to the Bill. I am very anxious to have answers ready to those who advance the sound contention-and the Hon. Mr. Isaacs admits that it is a sound contention-that where a state law on a state subject is inconsistent with the Commonwealth law on a Commonwealth subject the state law, whatever the rights or wrongs are, must go down, and the merits cannot be gone into at all. I recognise that it may be well to leave it at that, because the provision is one that commends itself to us as offering a means of avoiding perhaps painful conflict. But I am overborne by the feeling that if the water question is left there I shall not be in as strong a position as I should like to occupy in answering the criticisms that I know will be raised. If I am right as to the legal effect of leaving things as they are there does seem to be a serious necessity for some amendment. Mr. BARTON (New South Wales).-Taking matters consecutively, the position is this: Under clause 101, if a law of a state is inconsistent with the law of the Commonwealth the latter is to prevail, and the former, to the extent of the inconsistency, is to be invalid. It is clear, as indicated by the Right Hon. Mr. Kingston, that a law of the Commonwealth there spoken of is a law made by the Commonwealth within its legislative powers. That is to say, it must be a good and constitutional law of the Commonwealth to have any effect in conflict with a law of a state. Mr. REID.-We admit that. Mr. BARTON.-Then I take it there would be scarcely any necessity for the addition the right honorable member desires to make to clause 101-"Laws made by a state concerning matters over which the Commonwealth has no power to legislate excepted." That would be equivalent to inserting after the word "Commonwealth," as I proposed the other day, the words "on a subject within the legislative powers of the Commonwealth." If you restrict the validity of Commonwealth laws to laws within the legislative powers of the Commonwealth, that is the same thing as excepting those laws over which it has no power to legislate, so that this amendment and the amendment my right honorable friend originally proposed, and which was to be inserted in the middle of the clause, would be identical in effect. Mr. KINGSTON.-He means more than that.
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Mr. BARTON.-I think he does. The amendment he proposes to add to clause 101 is really, in legal intendment, the same as the amendment to add after the word "Commonwealth" the words "on a subject within the legislative powers of the Commonwealth." Then we have, on the motion of the right honorable gentleman himself, added, at the end of sub-section (8) of clause 52, this proviso-
The powers contained in this sub-section, and those relating to trade and commerce under this Constitution, shall not abridge the rights of a state or its citizens to the reasonable use of the waters of rivers for conservation and irrigation. I take it that the effect of the word "reasonable" need only be considered in its application to states. The difficulty is in its application to the conservation of the rights of the states.
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Mr ISAACS.-As against what? Mr. BARTON.-When put in correlation with the right of the Commonwealth to legislate for trade and commerce. The powers given in the sub-section are not to abridge the right of a state to the reasonable use of the waters of the rivers, [start page 2274] and that means its right of legislation. The effect of it, then, is that nothing in these two sub-sections contained is to lessen the right of the state to make laws for the reasonable use of the rivers, that is, to conserve for its own reasonable use the waters of the rivers. We have the starting point in clause 101, and it is clear that a law made by the Commonwealth is not to cut down the state right of legislation for the reasonable use of the waters of the rivers. Then all we are confronted with is the meaning of the word "reasonable." If there is anything to justify my right honorable friend's contention it is to be found here. What is the meaning of the word? It means a reasonable use of the waters by the state under its laws. The whole application of the sub-section is to prevent the exercise of the trade and commerce and navigation powers from inflicting certain injuries. It is a simple consequence that a law made by the state, if tested in the courts, is to be considered in the light of whether the use it makes of the waters is a reasonable use in relation to the power in respect to navigation and trade and commerce. Mr. ISAACS.-It is attached only to navigation.
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Mr. BARTON.-The cases which most readily suggest themselves are those that relate to navigation, and it was because we all considered that navigation within that sub-section would come under the trade and commerce laws that my honorable friend's proviso mentioned them. Clause 101 being clear, if a law of the Commonwealth abridges the right of a state to make laws for the reasonable use of the waters of the rivers, then that law will not be within the Constitution. If then the High Court is of opinion that a law of a state when it is tested is a law for the reasonable use by the state of the waters of the rivers, having regard to the rights of navigation and trade and commerce, then any law of the Commonwealth by which it is sought to cut that law down would come within the meaning of the proviso to sub-section (8) of clause 52, and would be bad. If that is so, the difficulty is to a large extent cleared away, because if you go back to clause 101 a law of the Commonwealth which would come under that ban could not invalidate a law of the state. Mr. ISAACS-If you can draw the line. Mr. BARTON.-I recognise that difficulty, but it will be for the High Court to decide what by statute is a reasonable use of the water. Then there is only one question remaining, and that is the question of jurisdiction. All these will be either matters arising under the Constitution or involving its interpretation, or arising under any laws made by the Parliament. These are provided for in subsections (1) and (2) of clause 73, and sub-section (6) of the same clause extends the judicial power to matters in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. If the matter arises between citizens it will come under sub-sections (1) or (2). If an officer of the Commonwealth is the plaintiff or defendant it will come under sub-section (6) as well as sub-sections (1) and (2). Mr. REID.-I am quite satisfied with that explanation, but I would like the honorable member to deal with the other matter I mentioned. I want my honorable and learned friend's opinion upon a case not provided for by special words in the Constitution, but in which a good state law on a good state subject, outside the powers of the Commonwealth, comes into conflict with a good Commonwealth law. Mr. BARTON.-I will suppose that the Commonwealth is legislating for the regulation of trade and commerce on a railway, and that the state has made by-laws applicable to that railway. There could only be a conflict where the regulation or law for internal trade made by the state usurped in its operation the domain of the [start page 2275] Commonwealth in legislating for trade and commerce. That would be a conflict such as is indicated by clause 101, and we are all agreed that, to that extent, p312 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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the state law should go down, and for this reason, that a conflict could only arise by the state law applying as much to inter-state traffic as to internal traffic. Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our leader, because I feel sure that without some such statement on our records a great deal of mischief would have been made on the subject. The explanation does not cover all the ground, but it covers it as nearly as is perhaps possible. Personally, I am entirely satisfied with it, and I now see that there would be no utility in pressing my amendment. I would, therefore, ask leave to withdraw the amendment. Mr. ISAACS (Victoria).-Before the amendment is withdrawn, I should like to observe in this matter, that the position comes just down to what Mr. Barton has said, that the jurisdiction of the Commonwealth in regard to navigation stops short at the point, wherever that point may be, where the state would be unreasonable in its use of water for conservation or irrigation. Now, I am not quite clear in my own mind as to whether that is a matter for the High Court. I can understand why it should not be, because the question of reasonableness of the use of water as to locality, or as to extent, or as to duration, depends on questions not of law, but of such enormous political and far-reaching effect, that it is almost impossible to conceive that the decision of such questions could be remitted to the judgment of the High Court. And when you consider that we have to regard the extent of territory to the needs of the people, the condition of productivity of their land, their future requirements, and their requirements from day to day, and from year to year-what is reasonable for one day would not be-reasonable for the next-it is almost impossible to imagine that the High Court can give a final binding judgment as to the validity of a state law which can bind the matter for all time. Now, it seems to me that it is putting a strain on the High Court that it ought not to bear, and I am not quite clear, certainly not as clear as Mr. Barton is, in thinking that the High Court will have to decide what is reasonable or not, because reasonableness in political matters is a question that is generally left to the Legislature. And if it is within clause 73, then I come back to the point to which I directed the attention of the Convention a few days ago in regard to the meaning of the word "matters." It is put that it is a "matter." Now, if that is a matter, I do not know what is not a matter; and if the High Court is to be asked to decide any matter between states, or between the Commonwealth and states, it is putting a construction on the word "matter" that we ought to stop short of putting on that word. I understand the word "matter" means a question of ordinary judicial interpretation in a controversy that is known as an action or a suit, and I think that we may well hesitate to put such a large construction on the word "matter," because if we do we are asking the High Court to accept a responsibility and a jurisdiction that is not found elsewhere. Of course, with regard to such questions, I think the answer given by Mr. Barton was absolutely unanswerable, that if a state passes a law which is entirely within its domain-perfectly within its jurisdiction-and is therefore valid, and the Commonwealth afterwards passes a law which is within its powers but the Commonwealth law is inconsistent with the provisions of the existing state law, the state law must cease to have effect to the extent of the inconsistency. I think that is inevitable. You cannot frame your Constitution with any other basis. But with regard to the word "reasonable." I feel great misgiving that we are intrusting such a question to the decision of the High Court Mr. Reid's amendment was withdrawn.
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The above makes it clear that the legislative powers must be directly within the powers granted to the Commonwealth, not some imaginary powers. Also, it underlines that water and other conservation powers was retained by the States and that the Commonwealth of Australia has no power over these matters unless it infringes commonwealth powers, such as regarding navigation etc. Still, we had Mr Malcolm Turnbull making statements from which I understood that he would be willing to go to the High Court of Australia in regard of constitutional powers to take over water legislative powers, as if the High Court of Australia is merely a political tool in the hands of the Federal government to do as it is being told, so to say, and this document further goes into this matter also.
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOSEPH ABBOTT.Can it be suggested, however high the Federal High Court may be in regard to attainments, that under any circumstances the Judges of that court would have the experience, the training, and the knowledge of the men composing the Court of the Privy Council? Would it be possible to separate the members of the Federal High Court from local influences? Unintentionally, men are influenced by their surrounding conditions. It does not follow because a man is to-day in public life as Attorney-General, and to22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p313
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morrow is sitting on the bench wearing the ermine, that he can dissociate himself or separate himself from local surroundings and be unbiased or uninfluenced by those considerations .
One may ask, would the Privy Council have handed the same judgment as the High Court of Australia did in regard of the Australia Act 1986 and the progressive independence where there were not true LEGAL FACTS supporting this kind of argument at all but merely relied upon how judges fancied events to have a certain application to suit their judgment to support their kind of orders. Kirby J stated
QUOTE 595 So far as s 15A of the Acts Interpretation Act is concerned, there are limits upon the power of the Parliament to direct the courts, in effect, to make a new law or to choose what a remade law should be [673]. The limit is reached where, faced with a conclusion of apparent constitutional invalidity of particular provisions, a court "cannot separate the woof from the warp and manufacture a new web" [674]. From
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time to time, this Court has invoked other metaphors to explain when the Court has arrived at that limit. Thus, it has indicated a willingness to undertake amputation and excision, where necessary, but not to perform judicial "plastic surgery" upon the challenged law [675]. By inference, this is a reference to judicial excisions that would substantially alter the appearance of the law, presenting a law that looks quite different from that which was made by the Parliament.
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596 The reason why this Court will not undertake such a task is ultimately based on the proper function of the Judicature established by the Constitution and on the principle of the separation of the judicial from other governmental powers. Thus, in the guise of construing a challenged federal law, the Court cannot be required to perform a feat that is, in essence, legislative and not judicial [676]. END QUOTE QUOTE 599 Conclusion: severance unavailing: When the foregoing well-established principles are applied to the present proceedings, they result in the invalidation of the entirety of the Amending Act. END QUOTE QUOTE 607 To resolve the intersection of these rules, it is necessary to recognise that a national Constitution, like any legal document, must be read as a whole, not in bits and pieces. What this fundamental principle requires in the present case is the confinement of the large powers of the Federal Parliament to enact laws with respect to corporations. That confinement would preserve the constitutional prescription that federal laws with respect to the subject of industrial disputes (as provided by s 51(xxxv) of the Constitution) have to comply with the features deliberately imposed by the Constitution on the Federal Parliament for that aspect of its lawmaking. That is, such federal laws may not be enacted by direct federal legislative provisions. Rather, they must involve, by the processes of conciliation and arbitration, the intervention of independent decision-makers who hear both sides. 608 To insist on this resolution of the intersecting principles fulfils this Court's role as the guardian of the Constitution. It preserves decisions of this Court, delivered over more than a century, that have either held, or impliedly accepted, that the corporations power has to be read as subject to the industrial disputes power. The view now endorsed by the majority of this Court effectively discards a century of constitutional doctrine. It ignores the express structure of the Constitution and the language of the two heads of constitutional power in question in this case, each of equal validity and effect . I refuse to accept that our predecessors in this Court were so blind to the true meaning of the Constitution that their decisions, in such number and detail over the past hundred years, were pointless exercises in constitutional futility. Yet that is the hypothesis inherent in the decision now reached by the majority. 609 Preserving industrial fairness: As history has repeatedly shown, there are reasons of principle for preserving the approach of our predecessors. The requirement to decide industrial relations issues through the independent processes of conciliation and arbitration has made a profound contribution to progress and fairness in the Australian law on industrial disputes, particularly for the relatively powerless and vulnerable. To move the constitutional goalposts now and to commit such issues to be resolved directly by federal laws with respect to corporations inevitably alters the focus and subject matter of such laws. The imperative to ensure a "fair go all round" [690], which lay at the heart of federal industrial law (and the State systems that grew up by analogy), is destroyed in a single stroke. This change has the potential to effect a 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p314
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significant alteration to some of the core values that have shaped the evolution of the distinctive features of the Australian Commonwealth, its economy and its society. END QUOTE QUOTE 612 This Court and the Australian Commonwealth need to rediscover the federal character of the Constitution. It is a feature that tends to protect liberty and to restrain the over-concentration of power which modern government, global forces, technology, and now the modern corporation, tend to encourage [694]. In this sense, the federal balance has the potential to be an important restraint on the deployment of power. In that respect, federalism is a concept of constitutional government especially important in the current age. By this decision, the majority deals another serious blow to the federal character of the Australian Constitution. We should not so lightly turn our backs on the repeatedly expressed will of the Australian electors and the wisdom of our predecessors concerning our governance. END QUOTE His Honour CALLINAN J stated; QUOTE 624 Section 14 requires that the Act be given "every valid application", if it has any invalid application. END QUOTE
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This is the absurdity His Honour pointed out that somehow an Act that is invalid becomes by this valid. Then why have a constitution for if the Parliament can enact anything and by mere declaration declare an invalid legislation to be valid. Then what were the judges doing in the first place if the commonwealth of Australia can validate its own laws? As was made clear by the Framers of the Constitution the Constitution was to be interpreted as to what they stated were their intentions. Again;
Mr. REID (New South Wales).-I am very glad that I have elicited this clear statement from our leader, because I feel sure that without some such statement on our records a great deal of mischief would have been made on the subject.
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Therefore, the usage of on our records indicates that it is to be used for later times. The Constitution is a PERPETUAL LEASE, that cannot be revoked by the British Parliament, the Commonwealth of Australia and/or the States as it is embedded in the Constitution, as set out also in this document below, that
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves.
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This also underlines that when it comes to the civil rights of the people, then the High Court of Australia cannot just ignore this, as it appears to have done in its 14-11-2006 judgment, but must show appropriate CONSIDERATION as to how matters affect peoples civil, religious and political rights as those were not handed over to the Commonwealth of Australia, as the document below sets out also. As is set out below, the Framers of the Constitution never intended to give civil rights, to the Commonwealth of Australia, and while this document may be considered extensive, it could not address every issue in all details, and I view neither needs to do so as my various books already published over the years themselves do so. It ought to be sufficient to present a document, as like this, to show there is an question about the validity of the judgment and so orders of the High
Court of Australia on 14 November 2006 in regard of the amendment Act legislation commonly known regarding WorkChoices. In my view, the credibility of the High Court of Australia itself is in question because of its conduct, and to be honest, I am wondering if the judges were fraternizing again with one or more of the parties, as I experienced to have occurred in the past! 5
Jurisdiction (Black's Law Dictionary): It is defined as: "The legal right by which judges exercise their authority. It is the authority by which courts and judicial officers take cognizance of and decide cases. It is the authority, capacity, power or right to act." Hansard 3-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. BARTON (New South Wales).-That is an alteration of substance which I will explain. I agree with the object of the clause as proposed to be limited by the amendment which I am now proposing. That is to say, I quite agree that any elector who, at the establishment of the Commonwealth or afterwards, has, under the law in force in any state at the establishment of the Commonwealth, the right to vote at elections should not be prevented by any law of the Commonwealth from exercising that right.
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Tell this to the thousands of State electors who are denied to vote in federal elections because the Commonwealth has draconic legislation to close the rolls and/or that an elector may be overseas, and this is a example how the High Court of Australia, as the GUARDIAN OF THE CONSTITUTION, has ongoing permitted this to occur. It may indicate what I am on about in this document, that far too often the High Court of Australia might in fact be directly and/or indirectly the culprit for what is being done unconstitutionally/illegally. Is, so to say, needs to get its Act together so others will not suffer the same as the ill conceived 14 November 2006 orders in the IR WorkChoices legislation (Amendment Act)
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if necessary, to give up the subject's right of appeal; but I emphatically assert that there should be a right of appeal from the decision of the High Court in regard to this Constitution, a Constitution embodying novel provisions and giving important powers, including the power of the Federal Court to review the procedure of Parliament. The Federal High Court is empowered to-declare a law passed by both Houses and assented to by the Crown ultra vires, not because the Legislature has exceeded its jurisdiction, but because of some fault of procedure.
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As this document sets out it is constitutional TERRORISM to force the Senate to vote without giving it sufficient time and as such the High Court of Australia, in my view, was bound to declare the legislation invalid as it denied certain members of parliament appropriate time to consider the Bill before the Parliament and to vote in a manner that was to the best interest to their constituents. This document does quote a statement about the denial of a copy of the Amendment Bill and as such the High Court of Australia, in my view, has a duty to rectify this matter. It cannot abrogate this duty by holding that it was not made aware of this as after all, its judgment was in my view obtained by deception/concealment by the lawyers of the Commonwealth of Australia ( such as the content of my 2-7-2004 (040702jh.doc 21879 characters being about 9 pages), 11-7-2004 (040711gh-High Court deception.doc, being about 481.279 Characters being about 176 pages) 26 July 2005 (050726jh.doc), and the 12-6-2006 (060612-Fair Pay Commission submission.pdf being about 130 pages) correspondence (of which a copy has been published in my various published books and as such it is on public record this to be so.
QUOTE 11-7-2004 CORRESPONDENCE In my view, the case of ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) was wrongly decided! In my view, Murphy J (dissenting judge) was correct! While Wilson J stated at 42; 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p316
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While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, He then goes into some historical details as to what occurred at the Constitutional Conventions, albeit leave out very relevant matters. For example, while referring to that the Constitutional Convention rejected amendments, he does not disclose why, as some set out below by me! The mistake that was made by the judges, other then Murphy J, was to try to restrict prohibition to what was stated in Section 116! Even using the argument of the usage of the word for, etc. Wilson J ought to have been aware, after all he was referring to the Constitutional Convention Debates, that the framers defeated the prohibition clause upon the basis that there was absolutely no need to have it in the Constitution as there was no specific power given for the commonwealth of Australia to legislate in regard of religion! Hence, Section 116 is no more but a limited prohibition that was to ensure that it was apparent that there was no constitutional right by the Commonwealth of Australia to make any kind of law regarding religion, but didnt diminish in any way the fact that without Section 116 there was already no constitutional power for the Commonwealth of Australia to legislate in regard of religion. It was because of the preamble that Section 116 finally was accepted as a mere specific clarification without limiting the overall denial of legislating in regard of religion. Hence, the Court omitted to argue the case that without Section 116 there was already no constitutional power for the Commonwealth of Australia in any shape or form to fund religion, as no such powers were provided within Section 51 and 52! Again, the framers held there was really no need for Section 116, as the prohibition was already implied, but for the sake of some form of clarification certain matters were specifically set out. The argument therefore not considered was if there was any constitutional powers within Section 51 or 52 for the Commonwealth of Australia to provide funding to non secular schools? As set out below, Section 96 cannot be taken apart of Section 51 and 52, as grants can only be provided in regard of what is within legislative powers of the Commonwealth of Australia. As I have also set out in my book on CD INSPECTOR-RIKATI on CITIZENSHIP, not even foreign aid can be appropriated by the Commonwealth of Australia, as Section 51(xxix) external affairs is limited to what is within the constitutional legislative powers of the Commonwealth of Australia and cannot be used for matters outside its constitutional legislative powers. It is therefore a grave error to presume that Section 51(xxix) provides for millions of dollars being spend on Papua New Guinea, as it is not part of the Commonwealth of Australia! The Commonwealth of Australia can only spend monies for the Commonwealth of Australia in regard of the limited constitutional powers it was given! END QUOTE 11-7-2004 CORRESPONDENCE QUOTE 11-7-2004 CORRESPONDENCE And I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Again; Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. It must be clear that any form of religious matter, including Sunday laws were specifically denied from Commonwealth of Australia constitutional powers. Technically, the Commonwealth of Australia cannot demand religious observance of Christmas, as many no Christians are disturbed that their religious days are ignored while they are forced to take religious observance of another religion. It is unconstitutionally for the Commonwealth of Australia, even as an employee (those holding an office of profit) to make any religious provisions, including religious holidays! 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p317
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END QUOTE 11-7-2004 CORRESPONDENCE QUOTE 2-7-2004 CORRESPONDENCE Also, any laws governing postal and telecommunications regarding religious days would also be unconstitutional, this, as like the Sunday newspaper, it would breach the provisions of Section 116 of the Constitution! Likewise, any postage depicting religious matters would be unconstitutional! Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Those laws provide for a certain number of hours of rest, and that employes shall not work on Sundays, and so forth. If we leave the factor laws to the state we should also leave this question of the observance of Sunday to the state. I will not take it from them. At the same time, I am not going, no matter what the consequences are, to help to intrust this power to the Commonwealth. I want the people of the different states to manage their own affairs as well as they can. I may say frankly that I, rightly or wrongly, am one of those who think that the Christian or religious observance is no good if it is enforced by law. I am one of those who think the religious observance is of no value unless it is the outcome of a man's own character, and the outcome of a man's own belief. Again; For instance, our factory laws are left to the state. Somehow we seem to have that the Commonwealth of Australia has taken over those rights, such as using the Arbitration Commission, even so this clearly is unconstitutional! The Arbitration commission can only deal with matters that are beyond the boundaries of a single State, but cannot deal with employment matters and its disputes that were within the boundaries of a single state. END QUOTE 2-7-2004 CORRESPONDENCE
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The full correspondence can be located in the relevant listed book on CD as shown the chapters and subchapters below. Likewise confirmation material to prove the documents had not just been forwarded but were actually confirmed as having been sent. This record was established as to avoid any possible future claim that the documentation was never received. Likewise 375.912 Characters being about 130 pages of the 12-6-2006 correspondence was submitted to the FAIR PAY COMMISSION which had provided an email address; submissions@fairpay.gov.au The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am QUOTE EMAIL
From: To: Cc: Date: Subject: G. H. SCHOREL-HLAVKA <INSPECTOR-RIKATI@SCHOREL-HLAVKA.COM> submissions@fairpay.gov.au inspector-rikati@SCHOREL-HLAVKA.COM Monday, June 12, 2006 01:21 am submission 12-6-2006 as attachment
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Locked Bag 35003 Collins Street West Melbourne VIC 8007 5 submissions@fairpay.gov.au AND TO WHOM IT MAY CONCERN Please note, submission 12-6-2006 is attached. 10
Text version of this message (216B) 060612-Fair Pay Comission submission.pdf (1MB)
Re; Submission 12-6-2006
END QUOTE EMAIL 15 Time and again in these and numerous other documents did I advise the Federal Government and others about this, and so well before the actual Amendment Bill was before the Parliament. As such the Federal Government lawyers ought to have been aware of this correspondence and have addressed the issues. I have done extensive research on the matter and willing to allow the lawyers to benefit from this. It is not relevant to me if John Howard might once again claim no one did bring it to his attention, as I do not run his office and neither should the High Court of Australia concern itself with such kind of absurd excuse as ultimately ignorance is no excuse. The documents themselves also show that they were forwarded to various other Members of Parliament and as such ample of opportunities for the Federal Government to attend to it. Personally I had never any doubt the Federal Government would unlikely reveal to the High Court of Australia all relevant details/information as I expected it was more concerned to obtain power or to have power recognised to exist at all cost then to risk loosing the case with revealing details/information I had so often provided to the Commonwealth of Australia. If then the High Court of Australia were to nevertheless ignore all this and still maintain its order then to me this would underline the High Court of Australia is bias. The documents can be located in the following publications; INSPECTOR-RIKATI on IR WorkChoices Legislation (Book-CD) A Book about the Validity of the High Courts 14-11-2006 Decision ISBN 978-0-9751760-6-1
CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711ghHigh Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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INSPECTOR-RIKATI & What is the -Australian way of life- really? A book on CD on Australians political, religious & other rights
ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 Published 6-7-2006

CHAPTER 01A CORRESPONDENCE/FRM/FAIR PAY COMMISSION/ FURTHER READING MATERIAL /060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000
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CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
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CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040711gh-High Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS For the quest of JUSTICE, in different ways. Book on DVD. ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3 Published 17-3-2007 20
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000 CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711ghHigh Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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35 INSPECTOR-RIKATI & How to lawfully avoid voting (CD) A book on CD about Australias federal election issues & rights ISBN 978-0-9751760-4-7 was ISBN 0-9751760-4-8 Published 28-3-2007 40
CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000 CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 040711gh-High Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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I may also indicate that in my published book on 30-9-2003 titled; INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed.
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X The following documents refer to factory laws also; 5
GHSH-10-Race-isolation-disqualification-etc.doc Chapter 02 - 1898 Convention re Citizen-Subject.doc Chapter 00B Set out about CITIZENSHIP.doc
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Chapter 00J CITIZENSHIP-COMMON LAW.doc Chapter 00K Citizenship, etc.doc
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Of this book 4 copies were provided to the High Court of Australia on the day of publication and a further 4 copies were provided to the High Court of Australia about 4 weeks later. As such, the High Court of Australia had been provided with a total of 8 copies of this publication and so its content. It was the Queensland Court of Appeal in November 2003 that subsequently overturned the convictions of Pauline Hanson and David Ettridge having about word for word used the set out I had in my book as to why the convictions were errors of law, etc. Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) "As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he honourably can' because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all relevant authorities, even those that are against him. He must see that his client discloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the specific instructions of his client, if they conflict with his duty to the court." In my view, based upon the judgments omitting to refer to a considerable amount of material that was relevant to the case before the Court I assume that the Federal government lawyers and other lawyers for the states concealed from the Court relevant details/information that ought to have been placed before the Court. I do not accept that the various High Court of Australia would have by neglect omitted to address those issues had it been placed before the Court for its consideration. Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA. "In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is willfully false. The sub-section should be read according to its terms. To say that 'false evidence should be read as 'willful false evidence' is to introduce a provision not expressed by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a witness 'who knowingly gives false testimony'. This interpretation is reinforced by reference elsewhere in s79A(1) to the separate grounds of fraud and suppression of evidence which would comprehend cases of willful false evidence. At common law, a judgement will be set aside if it has been obtained by fraud. In the exercise of this jurisdiction, it has been held that an applicant must show something more than perjury, ie. new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT
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143). This tends to suggest that the words 'false evidence' should be given their literal meaning" 5 R.V. Crimmins (1959) VR 270 Suppression of relevant evidence Byrne v Byrne (1965) 7 FLR 342 at 343 Fraud: Usually takes the form of a statement of what is false or the suppression of what is true. Again; At common law, a judgement will be set aside if it has been obtained by fraud.
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Take the case of a law passing beyond the powers given under clause 52, and which law does pass beyond those powers, and therefore, invades the domain of the states, which are protected under clauses 99 and 100. That is a matter which will be apparent on the face of the law in question, and therefore, there is material for the High Court to declare the law invalid. And so, if you consider other cases that might arise under the Constitution, you will find that it will always be apparent upon the face of the law in question whether it departs from constitutional power or not, and in such cases there is material for the High Court to determine. So it is in regard to clause 55: If it is apparent on the face of a law that it embodies two subjects of taxation when it should only embody one-where, in fact, it is a tack as well as an Appropriation Bill-that will be apparent on the face of the law, and is therefore within the functions of the judicial tribunal, because the court is enabled to deal with what appears upon the face of such laws when they emerge (if they ever do emerge) from Parliament. Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Sir GEORGE TURNER: There is no doubt that Mr. Barton cannot pass the matter off in this way. What does it now exactly mean? It means that before the House of Representatives can pass any Appropriation Bill they will have to get a message from the Governor, and before the Senate can pass it they will have to do so also. Mr. BARTON: Yes.
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Sir GEORGE TURNER: Is that intended? Mr. BARTON: Yes. Sir GEORGE TURNER: You are very fond of messages. Clause as amended agreed to.
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What this makes clear that powers and not power is referred to and that where the purported legislation enacted within subsection 51(xx) exceeds the powers provided for in subsection 51(xxxv) then it is unconstitutional. Actually, so are taxation laws that provide for tax deductions as tax deductions are in effect to be considered appropriation, as it is a tax deduction out of Consolidated Revenue and causes other tax payers to pay more so the government can still raise the funding it requires. Hence, taxation legislation dealing with tax deductions are in effect a combination of Appropriation Bill and Taxation Bill and cannot be constitutional valid. As I have already set out extensively in past published books there is no entitlement for the Federal Government to exclude anyone of paying the same level of tax as any other person has to having the same combined income, and as such tax exempt income are unconstitutional.
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Mr. HIGGINS.-Clause 55 says that such a law would be invalid. I am speaking from some little experience in our local Parliament. A Charities Bill was introduced, and it was proposed to raise the money for the charities by means of a sports tax, and additional rates upon ordinary lands and buildings. Supposing that money was required, and the House of Representatives said that it should be raised by a tax upon lands, the Senate might then say-"Oh, no, we can raise the same amount of money by means of a tax on sports and lands." That suggestion could not be made, because if it were adopted there would be two subjects of taxation in the Bill and the law would be invalid. I will take another instance: It is provided that laws imposing taxation shall deal only with the [start page 2024] imposition of taxes. Under that provision the Senate can make no condition to a law imposing taxation, and it will have to accept the taxation as it stands, or not at all. The law will otherwise be treated as invalid, and the taxpayers could then re-fuse to pay anything. Then sub-section (3) says-"A law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation." And Mr. TRENWITH.-And yet this clause is throwing legislation into the hands of those people who cannot agree. MR. REID.-The lawyers. Mr. MCMILLAN.-The lawyers? Mr. TRENWITH.-Yes, thrusting it on them.
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Mr. MCMILLAN.-That is one of those commonplaces which are always used. There is no clause or subclause of any Bill in the world, even if it were framed by an angel from Heaven, that would not be the subject of litigation. Dr. COCKBURN.-The disagreement is not legal, but constitutional. Sir EDWARD BRADDON.-You do not got lawyers from Heaven. Mr. ISAACS.-No, lawyers are sent there; they are not drawn from there.
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Mr. MCMILLAN.-Looking at the clause from a common-sense point of view, are the provisions a vital condition of the Constitution? Was it worth our while to spend days and weeks thrashing out these matters as a compromise to the financial scheme? We are dealing now with one of the great compromises of our financial scheme. Is that compromise, of vital importance in the financial scheme, to be made a matter of simple procedure in the House, liable to the judgment of a Speaker or a President? Or is it, like hundreds of other things, embedded in the Constitution, so that, if at any time there be an infringement, the law passed would be invalid, and the High Court would protect the people of the country? Apart from all legal quibbles, that seems to be the plain English of the fact. Speaking as an ex-Treasurer, I say that it is impossible to safeguard you in the third section. I would be quite willing to put in the word "proposition," or "Bill," or anything of the kind. All the arguments used to-day are valid against the third sub-clause. But, as against the other sub-clauses, looking at it as a matter of English, and as clearly defining the rights in the Constitution, it seems to me that they ought not to be disturbed.
Mr. ISAACS.-And, as Sir Samuel Griffith suggests, you might have to submit another Bill containing the machinery for the collection of your income tax.
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Mr. KINGSTON.-I was going to point that out also. Clause 55 provides that laws imposing taxation shall deal only with the imposition of taxation, and I am inclined to doubt whether it authorizes the insertion in a Taxation Bill of the machinery necessary for the collection of the tax. Mr. REID.-No, it does not.
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Mr. KINGSTON.-I do not think it does. I ask the Drafting Committee to consider this, and I would suggest that it is very often convenient, in a Taxing Bill, to provide the machinery for the collection of the tax. And yet, under this clause, the whole of a Customs Act might be invalidated by the incorporation of the usual machinery for the collection of the tax. Further-and I see that Mr. Deakin proposes to deal with this questionhere is a provision that you shall not, in a Bill imposing duties of customs, impose duties of excise also. Now, honorable members know perfectly well that it is highly desirable to deal with the two things at the same 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p323
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time. They have an intimate mercantile connexion with each other, and to deal with the one and leave the other untouched would expose us to the gravest inconvenience. If we pass this clause, with the amendment Mr. Isaacs has proposed, we will undoubtedly have the two Houses of the Federal Parliament watchful of each other. Each of the pre-siding officers would be jealous lest, inadvertently, an unconstitutional provision should be accepted by his House, for which mistake he would, in some measure, be held responsible and to blame. Under these circumstances, I cannot contemplate the possibility of any objection to the clause if it be amended as proposed by Mr. Isaacs, at least any objection equal to the disadvantages which would unquestionably accrue if you allowed the decision of Parliament, and the rulings of the President of the Senate, or of the Speaker of the House of Representatives, to be subject to the ruling of the High Court. Why, sir, in connexion with our meanest and smaller courts, we provide that if an appeal is to be exercised, it must be exercised within a certain time, or the right of appeal is gone; but in this measure we are asked to provide that the decision of the President of the Senate, or of the Speaker of the House of Representatives, is to be open to challenge for all time; under the circumstances to which Mr. Reid has referred, and with the consequences depicted by other speakers. Look at the inconsistency with which the question is dealt with in the previous clause. One of the most vital questions, the taxing of the people, the spending of the public funds, properly confided to the popular House, is put in this way-that it shall only apply in connexion with "proposed laws." You might just as well suggest that the House of Representatives will be careless of its rights; that it will tacitly authorize and practically approve of a measure which emanates from the Senate, and which originates both taxation and expenditure, and under such circumstances as that, when the whole Constitution is practically turned topsy-turvy on one of the gravest financial questions, and there is no remedy whatever, once an Act is assented to; but, on the other hand, in connexion with these small matters, there is a proposal that the High Court is at all times to have the power of review, although it could not interfere in a grave question of the character to which I have referred. It seems to me that in a matter of this sort experience of the past should tell us that, when we have marked out, in precise language, the relative rights of the two Houses of Parliament, we are abundantly justified in confiding in them the duty of maintaining their respective rights, and we know perfectly well that under this Constitution they will be completely protected. [start page 2041] Mr. DEAKIN (Victoria).-The honorable and learned member for South Australia (Sir John Downer) paid me the distinguished compliment of referring to me as always appreciative of the arguments urged by my adversaries. On this occasion, and in connexion with this subject it is scarcely possible to return the compliment. For the honorable member deals with this question, not in the judicial manner with which we are familiar, but with much of the warmth and force of the forensic advocate. It makes one almost despair of political discussion, if honorable and learned members of his eminence and ability fail to distinguish between the several interests involved in propositions of the importance of the amendment recently submitted. A proposal affecting the financial powers of the Commonwealth will affect both Houses, and may therefore be made the platform of a discussion upon their rights, privileges, and powers. But the proposal submitted by the Attorney-General of Victoria did not necessarily involve any such consideration, and was expressly aimed at a difficulty of quite another kind. The whole discussion, so far as it has turned on the relative power of the two Houses, valuable and interesting as it may have been from other aspects, is beside the issue which my honorable and learned friend desires to raise.
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Yet, the High Court of Australia did absolutely nothing about the GST (Goods and Service tax) regardless that it is unconstitutional, as set out extensively in my already published books. 45 Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
QUOTE 16-3-2005 correspondence to Malcolm Turnbull
Mr. GLYNN Does that put a maximum on military expenditure? Mr. PEACOCK: A maximum on all expenditure! 50 Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole of the expenditure cannot exceed the total yearly expenditure in the performance of the services and powers given by the Constitution, and any powers subsequently transferred from the States to the Commonwealth. Mr. SYMON: Does that prevent any increase in case of war?
Mr. BARTON: Yes.

END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
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Yet we find that prior to the last federal election John Howard was suddenly giving away monies as some handout to women giving birth to a child even so the appropriation bills did not provide for that financial year to do so and the taxation laws had also been set in concrete, so to say. What we find is that the Federal government is paying out moneys unconstitutionally but again the High Court of Australia does not appear to be concerned about this, at least not that I could detect. As was made clear taxation laws cannot be changed, as they are locked in for the financial year. Now as I have set out at the end of this document that we need an OFFICE OF THE GUARDIAN, as obviously the High Court of Australia, in my view, is unable and/or unwilling to deal with these matters.
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Mr. DEAKIN: . Then we come to the last clause in the resolution, which deals with the appointment of the executive and the governor-general, the advisers of the governor-general to be members of parliament, and their term of office to depend upon their having the confidence of the popular house.
20 Only members of the House of Representatives can be appointed Minister of State, yet we find Senators being appointed! And on and on it goes where little to nothing is being done by the High Court of Australia to ensure that the Constitution (the will of the people) is adhered to. And, numerous other issues can be raised, as have been in my various books, but to do so would make this book to large for printing purposes.
Hansard 5-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: That reminds me of a point I was nearly passing. I may be pardoned for leaving this part of my argument in a confessedly imperfect state; because, to answer all interjections would take too long. I shall be delighted to resume the argument in Committee, to obtain more knowledge, and to challenge the advocates of the policy to show that any expenditure can conflict with state rights properly so-called. Let them in the first instance define state rights, and then let us see how they will be impaired. I will be second to no delegate in my anxiety to preserve what I understand to be state rights. So anxious am I to preserve them, that I would never dream of intrusting them to a senate. Let us know what state rights are, and let us be careful to secure them under our constitution, so that they may never be liable to be swept away. We should fail in our duty if we did not embody in our draft such a distinct limitation of federal power as would put the preservation of state rights beyond the possibility of doubt. Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal Government or leave it to the States. The object of Federation is, while federating on common matters, not to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as you are giving a distinct power to override the States legislation. Is the power simply to be exercised with the consent of the States, or is it to be an overriding power. Mr. KINGSTON: It is a power which the Federal Parliament may exercise. An HON. MEMBER: If they make any law it will override any local law.
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Mr. KINGSTON: Only where it is inconsistent. Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put among these sub-sections is practically a power which necessarily overrides every other power, and therefore there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies, still they are to a great extent local matters of dispute. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p325
Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony. Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a difficult thing for the Federal Government to interfere, even where the ramifications of the disputes extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this kind being effected; but I do not think that there should be any power included in this Bill which will so interfere with the local industrial life of any State as practically to dictate to the State with regard to trade disputes. Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
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Industrial dispute extending beyond the limits of one colony are the words used, but how can that happen? Mr. HOWE: A maritime strike affects the whole national life. Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in each State. Because there is the same dispute in other colonies, it does not create a dispute extending beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State, and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any dispute which in itself can extend beyond the limits of the State. Mr. CARRUTHERS: How about a dispute with the masters in one State and the men in another, as in the shipping trade? Sir JOHN DOWNER: That is not a dispute extending beyond the State. It may be a very difficult thing to work out, but if it is to be done at all-and I can see great difficulty in doing anything with it, because it will be extending the limits of the Commonwealth legislation to a most dangerous degree, which I think all the colonies will not be prepared to accede to-it will be a departure from the proposition that there must be a formula in which you can give the jurisdiction. These words, I submit, will not do it, because the dispute will be a dispute in the State alone, and will not extend beyond it. Mr. HOWE: I rise, as one of the laymen, in fear and trembling to give my opinion against those of the legal luminaries here. A maritime dispute may affect the life of the nation. We have before seen the whole commerce paralysed by these disputes, and if we give the telegraphic departments to the federal authority why not give them authority to settle a national dispute which is endangering the commercial enterprise and industrial life of the whole community. I am with Mr. McMillan on that point, and if these words will not accomplish their object I want Sir John Downer to find words that will. Mr. DEAKIN: I am entirely with my hon. and learned friend Mr. Higgins in the amendment he has moved so far as he has indicated his purpose. I had the pleasure in 1891 of supporting the Premier of South Australia when he made a similar proposition. It is a cause in which he has taken a continuous and active interest ever since. Some of the difficulties which confront Sir John Downer confront me, although I see the problem from another point of view. This sub-section would give concurrent federal power in dealing with industrial disputes when they extend beyond the borders of a single State. The granting of such a power is desirable, properly belonging to a Federal Government, because the disputes may be extended over large areas, and if they are to be dealt with as a whole they must be dealt with by the Federal Parliament. Concurrent legislative power here differs from the concurrent power usually given in other respects in this Bill. A dispute might arise in South Australia, where there is a law now on its Statute-book dealing with industrial disputes. So long as that dispute remained in South Australia it would be dealt with under that law. The federal authority will also have a law perhaps different in its provisions, in many respects, from from the law in South Australia. Directly the dispute in Adelaide overflowed to Western Australia or the Wimmera the power of the State law would cease and the power of the Federal law, which is a different law, would begin. An HON. MEMBER: So it ought to.
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Mr. DEAKIN: Yes; but it will be difficult to determine the moment of overflow even if you can determine the point of overflow. We can scarcely say it there is to be a law in each State that the federal law must not differ from some, if not from all, of these. Consequently it will be a curious problem in relation to penalties 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p326
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and observances for those concerned to know the moment when they have passed from under the dominion of the State law to the dominion of the federal law. That is the great difficulty to settle. Although I am prepared to support the motion of the hon. member, I see grave difficuties in this proposal which [start page 785] is to retain the State law and federal law upon the same question as both may have to be applied in times of emergency and urgency. If you had merely left power to the State to legislate on industrial questions until the Commonwealth Legislature intervened, then the situation would be comparatively simple. But I know that neither of my hon. and learned friends desires that. They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. But then they are confronted with the difficulties to which I have referred, and upon which I would desire the Drafting Committee to throw some light so as to enable a determination to be come to. As to the time difficulty, I suppose it could be determined by proclamation of the Federal Parliament that a particular industrial dispute had ceased to be a State dispute, and had become federal. But the hon. member wants to obtain more than that. He wants, if possible, to graft a federal law upon the State law in such a way that the federal law should only be applied where the State law cannot be applied. If South Australia and Victoria had each a law enabling them to deal with a dispute, it might be advisable that each State should deal with it. It might be better that the dispute on the Victorian side should be dealt with according to the Victorian law, and that it should be dealt with on the South Australian side according to the South Australian law. But where the States altogether find themselves unable to cope with an intercolonial struggle, it seems to be highly desirable that there should be provision for federal action. I hope the hon. gentlemen will indicate to the Drafting Committee how they are going to distinguish between those two separate spheres of action. Mr. WISE: It would not be fair to criticise the language of this amendment too closely, but I entirely agree with the observations that have been made by Sir John Downer and Mr. Deakin, that the amendment as now drawn is very unsatisfactory. The language is either too large or too limited. In one sense it is hard to say that any industrial dispute is a dispute outside the limits of the colony. I agree with Sir John Downer that it is impossible to say when any dispute extends outside the limits of a colony, because a dispute is always in one colony although it may be going on in every colony. In [start page 786] another sense every dispute extends outside the limits of a colony. An HON. MEMBER: Indirectly. Mr. WISE: Sometimes, and sometimes directly. I rose rather to call attention to another aspect of the question. If the effect of the amendment is really to provide for the possible establishment of a Federal Court of Conciliation, I am at one with that object; but the essential part of the language used in the amendment-I am not criticising casual expressions-indicates a much wider object, which would turn this power into a weapon of very great danger. It would, I think, deprive those concerned in these industrial disputes, whether as masters or employes, of one of their greatest safeguards. There is no matter which the industrial population of Australia would more desire to confine to the local Parliaments, where they can make their influence upon members felt, than matters affecting industrial disputes. To give the Federal Parliament power to make laws affecting industrial disputes gives them authority to regulate by penalties every detail of the industrial life of every trade in the colonies. Mr. MCMILLAN: Hear, hear. Mr. WISE: Surely that cannot be desired or intended. There is no matter in which varied local development it; more necessary or desirable to a State than the development of its industrial conditions, and the industrial conditions in every part of this continent in years to come may, and probably will, very largely develop. Mr. HIGGINS: Will you not trust the Federal Parliament with the same powers as the States? Mr. WISE: Will the working classes of this country be prepared to surrender the right of local selfgovernment over industrial disputes? Mr. SYMON: Hear, hear.
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Mr. HIGGINS: That is not my question. Will not the Federal Parliament be equally to be trusted as the States Mr. WISE: I do not think the Federal Parliament or any centralised authority will be as competent as a local authority to deal with the necessary local conditions of trade. p327 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
Sir JOHN DOWNER: Hear, hear. And Mr. WISE: If a clause were put in, the Federal Parliament would have power to fix a uniform rate of wages all through Australia in any particular trade.
Mr. HIGGINS: If that is so, and if the hon. member has great confidence in the popular character of this Parliament Mr. WISE: I prefer local authority.
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At the very least and in those circumstances entitled to declare the 14 November 2006 to be suspended pending the parties to return to the Court as to show cause why the 14 November 2006 judgment should be reinstated.
D\'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 (10 March 2005) HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ RYAN D'ORTA-EKENAIKE APPLICANT AND VICTORIA LEGAL AID & ANOR RESPONDENTS D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 10 March 2005 M61/2003 GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ; As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level[29] but, at least generally, is not at the State level[30]) it is, in Quick and Garran's words[31], "the third great department of government".
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Where the High Court of Australia sees itself as part of the government, rather then a independent body created under the Constitution then in itself this to me indicates the implied bias. As where it consider itself to be a department of government then I view it has lost the plot! Its function by this prevents it to be an independent arbitrator to adjudicate as a GUARDIAN OF THE CONSTITUTION between the parties before the Court. It might have quoted Quick & Garran but this is an ill-conceived conduct as if anything it underlines that the High Court of Australia rather then to be a constitutional Court now seek to rely upon what Quick & Garran might have assigned to them that somehow the High Court of Australia is under the control of the Government by being the third great department of government rather then being an independent judicial body within the Commonwealth of Australia.
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON (New South Wales).-I beg to moveThat this Convention cordially invites the Prime Minister of each colony here represented to provide for the supply of copies of the Draft of the Commonwealth of Australia Constitution Bill, as now finally adopted by this Convention, to the electors of his colony.
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This motion will, I hope, give the members of the Convention an opportunity to state from their places in this chamber to the electors who sent them here their opinion of the Draft Bill and its provisions. I think that on this, the last day of our meeting, it is only fit that some opportunity should be given to honorable members so to express their opinions that the statement of them in an authoritative form, as printed in the official report of the debates, may reach those whose verdict upon the Bill is so soon to be sought.
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It is very clear that the official reports of the Debates was intended all along to be used by those who had to give their verdict upon the Bill. As such, the Hansard debates records very much was to be used by the electors to give them an understanding what the Commonwealth Constitution Bill was standing for.
Those who voted for the Bill clearly relied upon their political and religious freedoms as was set out in the official records, and as such the Hansard official records of the Debates must be considered as part of the Constitution. Hence the political freedom how to live is clearly provided for by the Framers without undue government interference. Therefore, the Commonwealth legal requirement to having to live in a certain manner as the Federal Government may desire and in what manner (pattern) is unconstitutional, as like the piggy tail case in the USA was!
Hansard 30-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GORDON: These remarks are in themselves trite, but they are necessary to the short argument which I shall make, and the point of which is, that in the Constitution we are about to formulate, [start page 317] we should make the smallest draft which can be made consistently with cohesion, upon the allegiance of the people of these States to the Governments under which they at present live. They are the governments to which they are accustomed; they are the governments they have themselves moulded into effective legislative machines under which a greater share of political liberty is experienced than in any countries the world ever saw Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire .
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25 Yes, I experienced this, as set out below in more details, where the High Court of Australia were fraternizing with the first Defendant in proceedings before the court, and subsequently railroaded, as I view it, the case. A liberty that now is denied in unconstitutional manner by the very High Court of Australia who was to be the GUARDIAN OF THE CONSTITUTION. The liberty that people now are forced to accept federal government dictated contract conditions regardless this was specifically prohibited by the Framers of the Constitution to be allowed. What kind of liberty is this one may ask.
Hansard 9-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. FITZGERALD: Another case I understood the hon. member, Sir George Grey, to put was that be favoured the appointment of the governor-general of the future dominion of Australia being a colonial appointment. But as long as this country is united to the Crown of England-and I hope that it is a very long day off indeed when it shall cease to be so-I maintain that the governor-general of the future dominion of Australia must be the appointee of her Majesty the Queen, our sovereign, who is the apex of that structure, and whose name we revere and respect in this colony equally as in any other [start page 165] part of her Majesty's dominions. Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER: The system to which I have just alluded has been in force 100 years, and has worked well, and in beginning the erection of this new edifice we ought to be careful we do not make a foundation mistake, for while we are pretending to make these judges the protectors of the citizens in the Commonwealth, and even superior from certain points of view to Parliament itself, at the same time we ought not to give Parliament, against whose unauthorised acts we intend the High Court to protect us, authority to remove the judges without the greatest cause and the gravest trial. I think this is a matter well worthy of the serious consideration of hon. members. We should make our Supreme Court so strong and powerful that no Government will be able to set the Constitution at defiance owing to the presence of a majority in either House, whereby an authority would be obtained that was never intended by the founders of the Constitution. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p329
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And Sir EDWARD BRADDON: I think the feeling in regard to this clause has been that it should be made as difficult as possible to amend the Constitution. The idea underlying the clause is to provide that, while an amendment of the Constitution is not made absolutely impossible, the Constitution shall not be so easily capable of amendment that in any fluctuation of public opinion, any change of feeling on the part of the people in some crisis of a temporary character, it might be changed. Mr. DEAKIN: A majority of the whole people, and a majority of the States. Sir EDWARD BRADDON: Yes; an absolute majority of the members representing the States in the Senate and House of Representatives. I do not think this is too much to ask in such an important matter as an amendment of the Constitution, and, while I would not say the Constitution should be such as could only be amended by force of arms, I hope we shall provide all necessary safeguards against its being lightly amended. Mr. ISAACS: I hope these words will be eliminated. I should like to point out the meaning of the clause. There is power given for the intervention of the people on the question of the amendment of their Constitution, but that power is merely by way of veto. Unless the proposed amendment of the Constitution first succeeds in passing an absolute majority of both Houses of the Legislature the proposition never reaches the people for their determination at all. Mr. MCMILLAN: You mean there is no initiative like there is in Switzerland.
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Mr. ISAACS: There is no initiative, but I mean something more. It is possible for an absolute majority of either House to prevent the people from expressing their views on the amendment of the Constitution. I think that is wrong. If we are to provide for a mere majority of the Legislature to alter the Constitution, then I could understand the complaints of some of my hon. friends that that was too easy a mode, but the decision of the Legislature in this case is not intended to be final, and the passing of the amendment of the Legislature is intended to be the means of ascertaining whether this proposition is of so great an importance, of such great interest, and of such necessity as to require the consultation of the people. I can quite understand that circumstances have not failed to occur in some colonial Legislatures where by some accident a proposition has passed the Houses, but has failed to get an absolute majority. I can quite understand why it is necessary in cases where the voice of Parliament is sufficient in itself to establish a new law amending the Constitution to have an absolute majority, and with much more reason than in the present case. Although we are dealing with the question of amending the Constitution, we have to recollect that it never can get passed into law without the sanction of a majority of the States and people. Now, surely that is safeguard enough. Mr. HOWE: An ordinary majority.
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Mr. ISAACS: This is only preliminary to getting to the people, and then you have in the States the amplest power of rejecting a proposal, and in the population you have similar power of rejecting a proposal if it is not in accord with the views of the people. Mr FRASER: If you have not an absolute majority of both Houses you allow a minority to past; the amendment. The most liberal man on earth would not ask for such a proposition as that. The reference to the United States is a different thing altogether, and has no analogy to our conditions. The 1891 Bill contained the same provision, and why should you make an alteration merely for the sake of creating strife and confusion? The Constitution should not be altered to every gust of wind that blows hither and thither. Mr. HOWE: Who blows? The lawyers?
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Mr. FRASER: It is not desirable that an alteration of the Constitution should be effected except at the wish of the majority of the people. Mr. LEWIS: I should like to call attention of the Committee to the way in which this clause is drawn. The proposed alterations must be approved by the electors of a majority of the States. The people of the States whose electors approve are also a majority of the Commonwealth. The proposed alteration should, in my opinion, be approved by a majority of the States, and also by a majority of the electors who record their votes upon the referendum that may be taken upon the proposed law. That is a very different thing to what is presented here. I need not delay the Committee, because the difference will be seen at once. I have an 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p330
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amendment to the effect that the proposed alteration should be approved by the electors of a majority of the States and by a majority of the electors who vote. Mr. BARTON: That would not secure a majority of the Commonwealth.
Mr. LEWIS: Under this system one large colony might join with two or three smaller ones, and their votes would override the votes of another large colony which had joined with one of the small colonies, notwithstanding that a large majority of the electors in the Commonwealth decided against the proposed alteration. And Mr. DEAKIN: I was struck by the point raised by Mr. Lewis. It Seems a very fair one to raise, and a very fair one to insist upon if there were a uniform franchise through the Commonwealth. One obstacle is that in South Australia at present there is a different franchise from that obtaining in any other portion of the Australian continent, and the double voting power in that colony and in any which follow its example would be certainly unfair to the remaining States. If the franchise were uniform I do not think that the more populous States should have their abstinence from voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll. This plan would not enable a proposal to be carried unless the States in the majority were also the most populous States of the group. It is right to require a majority of the States as States. But why should you require that the people of the States whose electors approve of the alteration should also contain a majority of the people of the Commonwealth? One can conceive that if you have one State much outstripping the others in population, although You might have practically all the other States, except perhaps one small one, in favor of the proposed reform, and although a majority of those who went to the poll were in favor of the proposed reform, the population in the oustanding State would be so numerous that the majority of the States would not include a majority of the Commonwealth. The amendment would be defeated solely by the abstinence from voting of that very large State. And Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the agreement.
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And Mr. KINGSTON: If you get two things, namely, a majority of the State electors who vote on the subject and a majority also of the electors of the whole Commonwealth in favor of the proposed alteration, I think that is all you ought to require.
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And Mr. BARTON: I should be glad to do anything that is reasonable, but Mr. Lewis's amendment as it stands is one which we cannot accept. That is the one which proposes first that there should be a majority of the States, and then a majority of the electors voting If we have five States joined together, of which one has female suffrage, then the electors count for double those of the other States. Then, in the case of a State which has the one man one vote system, that counts for two, and there is the difficulty. As no one can give me a way out of the difficulty, I think we had better adhere to the proposal in the Bill. And Mr. KINGSTON: I think that to strike out the words would be both sufficient and effective. I would like to know from Mr. Barton if he means that it should not become law without the consent of the electors of the State. There is no provision for taking a poll. Mr. BARTON: Yes; there is a provision for a poll. It is that it shall not be effective unless the majority of the electors are in favor. It must be passed by the electors of a majority of the States, who are a majority of the people of the Commonwealth. There is only one way of carrying a proposal, and that is by a majority.
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Again;
Mr. KINGSTON: I suppose that is a majority of the people who vote, and would like the hon. member to say so. It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p331
Again; and also by a majority of the electors who record their votes upon the referendum that may be taken upon the proposed law.
Again; Mr. SYMON: That is not just, because you are not getting a majority of the people, only a majority of those who vote -a quarter of the people may vote. I suggest that we ought to reconsider that part of the agreement.
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It refers to who record their votes and not who are registered/enrolled, as political liberty ensures the right to abstain from voting. Do not Members of Parliament themselves use this right to abstain from voting?
Mr. DEAKIN: The sub-section reads: But an alteration by which the proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives, is diminished, shall not become law without the consent of the electors of that State.
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This underlines that while Section 128 provides for the manner in which a Commonwealth of Australia referendum is to be held it does however not deal with how State referendum must be held regarding the referral of powers , the diminishing of representatives in the Federal parliament, etc. nevertheless, as this documents sets out also the Commonwealth Powers (Industrial Relations) Act 1996 is not constitutionally valid as it never had the approval by a State referendum and neither did the Victorian parliament to make it a permanent reference of legislative powers within the ambit of Subsection 51(xxxvii) of the Constitution. Likewise the Victorian Parliament had neither any State referendum approval to support the purported Australia Act 1986. The High Court of Australia, cannot, as it did in Sue v Hill make a political conclusion/decision but is bound to determine matters on legal facts before the Court. It has no constitutional position to assume some transformation of the Commonwealth of Australia without even the approval of the electors by way of a Section 128 referendum, and the fact that the judges themselves acknowledged that there was no decisive issue as a legislative action that could even determine when this purported transformation occurred then the Australia Act 1986 is and remains to be ULTRA VIRES. This document provides various quotations in support of this also.
Hansard 8-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: I trust the clause will not be passed without some little further consideration. The proposition of the hon. member is one which I should have made myself, or, rather, which I was considering, but for the obvious objection to me that it fulfils too much the idea of the hon. member, Mr. Donaldson, of making reform almost impossible. I take it that one of the first principles of the Constitution is that we present it to the several colonies, not as a complete constitution, but as one which they can make complete; not as a constitution necessarily adapted to their needs and desires, but one which they can themselves adapt to those needs and desires. The amendment of the hon. member, Mr. Playford, is fair, and the only possible objection that can be raised against it is that it makes the carrying of amendments in the constitution extremely difficult. But the question is whether that is not desirable in order that the amendments that are carried may be equitable. The proposal that was carried in the Constitutional Committee, and commended to the Convention, was, that first a majority of the states, and then of the whole of the people, be required before any amendment be carried. The matter ought not to be lightly passed over, nor should there be an acceptance or a rejection of the clause without debate. Mr. GILLIES: There is some misapprehension about this matter. It is said that there shall be a majority of the states, and then of the people; but in the house of representatives there is a majority of the people. Mr. MUNRO: No. Representatives very often vote against their promises. We want to refer the question to the people! And 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p332
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Mr. OCONNOR.-If a state referred question of state finance it might be dealt with. Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do? Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable? And
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Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance. What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South Australia. Even in connexion with the question of rivers some point might arise that might concern two or three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. I will now take the points Mr. Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary money to give effect to the legislation. Again; That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. And
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Mr. ISAACS (Victoria).Parliament the passing of any law that is to affect itself alone. But if it agrees with another state that some law; not to be of universal application throughout the Commonwealth , but to affect it and that other state alone, should be passed, power should be given in some such clause as this to ask the Federal Parliament to enact that what both states desire shall be of common application to them.
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Clearly, the Australia Act 1986 being a common matter in respect of every state fell outside the provisions of Subsection 51(xxxvii)!
Al-Kateb v Godwin [2004] HCA 37, 6-8-2004
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69. Failure to see the difference between taking into account political, social and economic developments since 1900 and taking into account the rules of international law is the error in the approach of those who assert that the Constitution must be read in conformity with or in so far as it can be read conformably with the rules of international law. Rules are specific. If they are taken into account as rules, they amend the Constitution. That conclusion cannot be avoided by asserting that they are simply "context" or elucidating factors. Rules are too specific to do no more than provide insights into the meanings of the constitutional provisions. Either the rule is already inherent in the meaning of the provision or taking it into account alters the meaning of the provision. No doubt from time to time the making or existence of (say) a Convention or its consequences may constitute a general political, social or economic development that helps to elucidate the meaning of a constitutional head of power. But that is different from using the rules in that Convention to control the meaning of a constitutional head of power. Suppose the imposition of tariffs is banned under a World Trade Agreement. If that ban were taken into account - whether as context or otherwise - in interpreting the trade and commerce power HYPERLINK "http://www.austlii.edu.au/cgibin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn69" [70] , it would add a new rule to the Constitution. It would require reading the power to make laws with respect to trade and commerce as subject to the rule that it did not extend to laws that imposed tariffs. Such an approach, in the words of Dixon J, cannot be "countenanced" HYPERLINK "http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/2004/" \l "fn70" [71] . Again; If this Court had to take a rule of international law into account in interpreting those powers, the rule would either confirm what was already inherent in the powers or add to or reduce them. If the international rule is already inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional meaning of "aliens" or "judicial power of the Commonwealth" or both.
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Therefore, the Constitution cannot be deemed to have been amended over time merely because public perceptions may have changed, as the Constitution must be interpreted as to what the intentions were of the Framers of the Constitution at their time.
Mr. BARTON (New South Wales).Consequently, if it were proposed to add a legislative power of the kind suggested by Mr. Holder, I take it that as Chapter VIII. provides first for the passage of the proposed law by an absolute majority, and then for a referendum, the law would have no effect unless the majorities of the several states agreed to it. And Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be obviated by some such provision as that which he suggested. But this matter has struck me also from another point of view, and it seems to me that the provision affords an easy method of amending the Federal Constitution, without referring such amendments to the people of the various states for their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal Constitution without the consent of the people of the various states. On the other hand, if that be not so, and the states can, after making such reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution. Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.
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This, as the reference of legislative powers are not enforceable or acceptable by the Commonwealth Parliament unless first having been accepted by a referendum under Section 128! As shown below! See also for further detail; Chapter 005 The Westminster Act is ULTRA VIRES
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Hansard 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: That is quite true; I had forgotten that. I have always thought that the practice in New South Wales has been a perplexing and hampering one. I think it is very much better to make the law read as it is, that the passage shall not occur until there has been a message. There are many circumstances under which a message might not be obtained by a Government, although they might find it necessary in an emergency to propose a vote or resolution. So long as the Queen's assent is given to that proposed procedure by message before the final act is taken of carrying it into law, the prerogative of the Crown is sufficiently guarded. And if we try to apply restrictions of this kind, so as to hamper the very origination of matters, we are extending the application of the prerogative of the Crown, instead of really exercising the popular right, and then applying that prerogative to the effectuation of the popular right. And Mr. REID: The clause says: Which has not been first recommended. You will have to leave out one word there.
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Mr. BARTON: I have that word clearly in my mind, but the word "first' relates to the word "pass." You cannot pass a thing which has not been first recommended; that is first recommended before you pass it. Mr. SYMON: Precisely.
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Mr. BARTON: With regard to a vote or resolution, it would be necessary to have a message before you pass such vote or resolution; with regard to a Bill, you must have a message before you pass the Bill. This clause gives greater liberty to Parliament than the restrictive application proposed, and I am therefore entirely in favor of retaining the words of the clause. Mr. Isaacs has raised a question with reference to "proposed law." Mr. ISAACS: I do not like the words "proposed laws," because it has a technical meaning in other parts of the bill. The word "Bill" ought to be there. Mr. BARTON: I do not propose to alter without very good reason the phraseology of this Constitution Bill to which we are accustomed. A Bill is a proposed law until it becomes an Act.
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Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power? Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry.
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Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GLYNN (South Australia).Then, following out the idea that this Constitution takes its origin from the people, when we are seeking the element's of its renovation and repair we throw it back upon its source, and appeal to the popular voice for a justification of any improvement or alteration which time may necessitate. And Mr. BARTON.Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves choose to change it, is contained in the provision that the interpretation of the Constitution by the High Court is to be final. Again; the interpretation of the Constitution by the High Court is to be final.
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30 This does not include for the High Court of Australia to use a backdoor manner to alter the application of the Constitution, to twist or infringe its provisions (Mr Barton, Hansard 17-31898). Just that I view we lack competent judges serving at the High Court of Australia as their judgment appear to me far to often to lack a display of competence about certain constitutional issues to be shown.
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves choose to change it, is contained in the provision that the interpretation of the Constitution by the High Court is to be final. Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians . I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole body to determine finally what the people meant when they used those expressions . Again; I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole body to determine finally what the people meant when they used those expressions.
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And again; 55 what the people meant when they used those expressions.
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As such not what judges consider to be applicable upon contemporary views, or what Delegates to the Constitution Convention later may have fabricated when they were appointed to judicial position as to perhaps achieve what they were defeated in during the Debates. Isaacs, as I understood it would have desired to have the entire industrial relations legislation handed over the Commonwealth of Australia, but failed in this and therefore any statement he made since Federation must be considered with this in mind. Likewise so with other Delegates to the Constitution convention who later were in positions to perhaps seek to twist the true intentions of the Framers of the Constitution to what they themselves all along desired. Indeed, I view to some extend Dr Quick (later Sir John Quick) seemed to be a clear example in this.
Hansard 22-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne.
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The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I say one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States Constitution power is given to the commonwealth to legislate in very wide terms. The question will be constantly arising whether the commonwealth parliament has power to legislate on any particular matter. There is no doubt whatever that they are to he restricted by the powers expressed or implied in the constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the United States Constitution, but I should like to point out how the same words used in a different relation may lead to very different results. In our bill, clause 52 provides that the parliament may have full power and authority to make laws for the peace, order, and good government of the commonwealth, with respect to all or any of the matters following. It then winds up with the sub-clause: Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powers-
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They are specifically mentioned: or of any other powers vested by this constitution in the parliament or the executive government of the commonwealth or in any department or officer thereof. It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty. There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may be able to find that power. And The Hon. E. BARTON: All these in clause 52 are in the parliament! The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which are not powers vested in the parliament.
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The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions? The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or one single house of the parliament. I think it would be well if the wording were made so as to prevent any question from arising in the future as to the power of the commonwealth parliament to legislate in respect of every one of the subjects which are confided to the commonwealth as a whole.
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Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.For instance, our factory laws are left to the state. Hansard 7-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER.-I mean Australian, and when I say colonial I do not [start page 1963] refer to one colony. When I voted as I did it was in the belief that the trade and commerce clause would probably be sufficient to give to everybody all that was required, and to give my right honorable friend (Mr. Reid) all that he requires. It appeared to me that under the trade and commerce provision, before it would be competent for the Federal High Court to interfere with any use by New South Wales of any of the p336 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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waters of the rivers running through her territory, it would have to be shown that it was injurious to trade and commerce.
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Clearly, despite Section 100 of the Constitution the High Court of Australia would be required to find some connection to be able to invoke jurisdiction. As will be shown below, if the provisions of subsection 51(xx) foreign-corporations, and trading or financial corporations formed within the limits of the Commonwealth was to have the widest possible meaning it purports to apply, then why not just rely upon subsection 51(xii) currency, coinage, and legal tender which is used throughout any ones life and using this in the widest possible context would do away with any limitations elsewhere in the Constitution. Why at all did the Framers of the Constitution have to bother with the terminology of each and every word used in subsections if it could have simply drafted one clause currency, coinage, and legal tender to comprehend the unlimited powers. The mere fact that the Framers of the Constitution stated specific headings means that any subject of a subsection was to be recognised in its own right and not be swallowed up by any other heading. Indeed, the powers of trade and commerce were defined in the Debates not to be as wide as to be able to control every aspect in life and neither that Subsection (xx) could swallow up this subsection. The Framers of the Constitution specifically provided headings which related to certain subjects and where there was a subject specifically listed in another subsection then clearly no transgression could be made into the subject matter of another subsection where it would not be permissible within the legislative powers of that subsection itself. Therefore, any legislative powers within subsection (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State cannot be enlarged by artificially using another heading not at all designed for that purpose. To me the word conciliation could mean reunion which got nothing to do with a person seeking employment, as reunion would not be the appropriate word in that context. Likewise the word arbitration could not be used in this context as there is no arbitration required to settle some dispute where there is none. If a person knocks on the door to inquire about employment then there is no dispute existing. Hence, the powers of subsection 51(xxxv) cannot apply. The freedom of association and civil rights cannot be dictated by any Government, even so in recent times the Federal Government has become the terrorist upon the general community inciting hatred in its Muslim phobia to incite Muslims to turn against certain Muslim leaders because they do not like the comments of certain persons, regardless that in law this person is entitled to cast his views. Rather then to charge a person for libel or vilification or whatever may be applicable we have now a Federal government that usurps the judiciary by simply acknowledging it has no constitutional powers incite people to turn against each other. This is the kind of treacherous conduct now coming from the federal government, which was also clearly shown with the CHILDREN OVERBOARD claims, etc. A Court of law must resit to rule upon a political agenda but regretfully it appears to me that the High Court of Australia is more ruling under the political mastery of the federal government then to rule on facts of law. It has even gone as far as to fabricate some version of independence in the Sue v Hill case without a shred of legal argument to prove conclusively its legal justification for this. As such, the Court has by far exceeded any judicial powers by substitution the facts its own political agenda/bias versions/views. This book address, albeit not all, numerous issues including the question of credibility of the judges themselves. While the court may rely upon Isaacs having been a Framers of the Constitution and his further positions as a judge, Governor-General, etc, the true picture should be understood that Isaacs knew from the Constitution Convention Debates that no Governor-General could be appointed upon the recommendation of the Australian Government but that it was explicitly stated that it must be a person who represented the Queen being recommended by the Home Office at 10 Downing Street, as to avoid some political lapdog being recommended by the Australian Government. How dangerous this unconstitutional change is can be shown where John Howard
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authorised unconstitutionally the deployment of troops into the sovereign nation Iraq despite the governor-General having effectively refused to invoke prerogative powers to publish in the Gazette a DECLARATION OF WAR and yet even the High Court of Australia itself rather then to speak on behalf of the general community not to tolerate this kind of treachery being the GUARDIAN OF THE CONSTITUTION deliberately refused to act and by this must be perceived to have condoned this unconstitutional conduct. No more evidence can be clearer about this then its conduct on 19 March 2003, the very day of the murderous armed invasion into Iraq, where the High Court of Australia refused to consider the case I had lodged with the Court supported by a massive eight hundred page Affidavit, as to seek within Section 75(v) of the Constitution an order of prohibition/mandamus. This book does not permit to set it all out, in particularly not the printed version, and neither is there any need for to do so as it has been already extensively set out in the many books I have already published in the INSPECTOR-RIKATI book series. Also, having succeeded in my appeals on 19 July 2006 with all constitutional issues I raised remaining UNCHALLENGED it cannot be taken away from me that I defeated, in an about 5year legal battle the Federal government lawyers, and as such earned the credibility to have been right in the numerous constitutional issues I had raised (including a Section 78B NOTICE OF CONSTITUTIONAL MATTERS), despite that the High Court of Australia having refused to address the very issues when it was placed before it year earlier.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chhapter 33 of the CD) Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power? Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry. Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GLYNN (South Australia).Then, following out the idea that this Constitution takes its origin from the people, when we are seeking the element's of its renovation and repair we throw it back upon its source, and appeal to the popular voice for a justification of any improvement or alteration which time may necessitate.
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This does not include for the High Court of Australia to use a backdoor manner to alter the application of the Constitution, to twist or infringe its provisions (Mr Barton, Hansard 17-31898). Just that I view we lack competent judges serving at the High Court of Australia as their judgment appear to me far to often to lack a display of competence about certain constitutional issues to be shown.
Hansard 22-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Right Hon. G.H. REID: And we shall have to fight it over again in Melbourne. The Hon. I.A. ISAACS (Victoria)[4.27]: Of course we have to bow to the pressure of circumstances. May I say one word to my hon. friends on the Drafting Committee in relation to clause 52? In the United States Constitution power is given to the commonwealth to legislate in very wide terms. The question will be constantly arising whether the commonwealth parliament has power to legislate on any particular matter. There is no doubt whatever that they are to he restricted by the powers expressed or implied in the constitution bill. We have not got exactly any precedent quite analogous. We have gone very near to the United States Constitution, but I should like to point out how the same words used in a different relation may lead to very different results. In our bill, clause 52 provides that the parliament may have full power and authority to make laws for the peace, order, and good government of the commonwealth, with respect to all or any of the matters following. It then winds up with the sub-clause: Any matters necessary for, or incidental to, the carrying, into execution of the foregoing powersThey are specifically mentioned: p338 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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or of any other powers vested by this constitution in the parliament or the executive government of the commonwealth or in any department or officer thereof. It seems to me that if you want to legislate in regard to the judiciary, you might be met with some difficulty. There is a power given, but it is very limited; it is to do specific things. My hon. and learned friend may be able to find that power. The Hon. E. BARTON: Look at clauses 76, 77, and 78! The Hon. I.A. ISAACS: I am not sure they go far enough. I would also point out that in section 8, subsection 18, of the first article of the American Constitution, the Congress has power
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to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. Now, the word "government" there has a very large signification. It means the whole of the legislative, judicial, and executive departments of the government, and any officer and any department thereof. A departmental officer in the United States means an officer of the whole government, which is a much wider signification than the other. A question has arisen in my mind in two or three places throughout this bill whether the parliament has power to make laws in certain cases-not in two or three cases, but in very numerous cases; [start page 1091] and a question may arrive as to whether the last sub-clause of clause 52 in wide enough in that respect. There are many provisions in relation to the parliament which do not consist of power is vested in the parliament. The Hon. E. BARTON: All these in clause 52 are in the parliament! The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to the parliament which are not powers vested in the parliament. The Hon. E. BARTON: Does the hon. member mean to say that they are mere permissions?
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The Hon. I.A. ISAACS: Permissions given, and also provisions made in respect of the parliament, or one single house of the parliament. I think it would be well if the wording were made so as to prevent any question from arising in the future as to the power of the commonwealth parliament to legislate in respect of every one of the subjects which are confided to the commonwealth as a whole. Hansard 11-03-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments.
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Consider the Forge case of 1996 that held that the State Supreme Court somehow was subject to Chapter III of the Constitution. Clearly this is not what the Framers of the Constitution had intended.
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Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. We do not propose to interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore, having done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states, and having also said that the political rights exercisable in the states are to be exercisable also in the Commonwealth in the election of representatives, we have done all that is necessary. Again; The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. Hansard 5-3-1891 Constitution Convention Debates (Official Record of the Debates of the p339 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: When the question of a second chamber comes to be considered, they will assuredly not be satisfied to possess less freedom. More than this. In framing a federal constitution, we should set out with the explicit claim to possess and exercise all the rights and privileges of citizens of the British empire to the same extent that they are possessed and exercised by our fellow-countrymen in Great Britain itself. Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HOLDER (South Australia).We have deliberately decided previously that the Constitution should only be amended by direct appeal to the electors, in which the vote shall be counted in two ways. I do not propose to alter that provision in the slightest degree. We have provided that measures altering the Constitution shall only come into force after they have been carried by absolute majorities of both Houses. I include the same provision in this clause. Before a matter can be sent to the referendum, both Houses must by absolute majorities agree thereto. And Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HOLDER (South Australia).I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the High Court to interpret it, and to see that the various co-partners keep in all that they do within the four comers of the deed to which they have agreed. Hansard 9-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.I think an alteration with regard to the rest of the Constitution, what I may call the machinery part, ought to be much easier than the forms for altering the Constitution with regard to the powers conferred by the states on the Federal Commonwealth. If a number of the states come together and say"We are willing to surrender certain powers to the Central Government, Hansard 14-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. O'CONNOR: We know it is easy to bring the pressure of the majority of public opinion on one House for the purpose of obtaining a violation of the law. This is not intended to be a protection to the House or the Representatives of the House, but to the States represented in the House; that no matters of tactics between the Houses, or no playing off of public opinion by one House against another, shall ever take away the protection embedded in the Constitution for the States. I have heard of the argument of the inconvenience of laws being upset on account of some invalidity being discovered-some trifling invalidity, perhaps. I say you must submit to that inconvenience if you wish to enter a Federal Constitution. The very principle of the Federal Constitution is this: that the Constitution is above both Houses of Parliament. That is the difference between it and our Houses of Parliament now. The Federal Parliament must be above both Houses of Parliament, and they must conform to it, because it is in the charter under which union takes place, and the guarantee of rights under which union takes place; and, unless you have some authority for them to interpret [start page 592] that, what guarantee have you for preserving their rights at all. It is very necessary to insert this provision in the Constitution, because if you do not do that then these questions are questions of procedure between the two Houses in which undue pressure may be brought to bear at any time on one House or other for the purpose of vetoing a law and doing injustice to the States represented in that House in the different ways in which the States are represented. As to the inconvenience, there are thirty-two different subjects of legislation here which may be dealt with by the federal authority, and in regard to any one of these if an error is made which takes the law outside the authority which is given to the federal power it is invalidabsolutely void-no matter what inconvenience may follow.
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Hansard 30-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. REID: The Supreme Court of the United States is not a court created by Parliament, as the draft Bill proposed our Federal Court should be. It is a court embedded in the Constitution itself, and it is essential to the just exercise of federal powers that this Supreme Court shall be strong enough to do what is right-strong enough to act as the guardian of all the rights and liberties of the States and people of Australia. I am glad that Mr. Barton agrees with me in this respect. Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of citizens, because we do not give any such power to the Commonwealth
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15 His Honour CALLINAN J pointed out;

QUOTE 636 Part 2 of the Act establishes an Australian Fair Pay Commission ("the AFPC"). The principal of its functions is "wage-setting" as referred to in ss 21(a) and 22(1). END QUOTE QUOTE from Chapter 000 Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states.
30 If the Commonwealth and/or the State(s) were to have me as a consultant you might find that a lot of rot could/would be avoided. On 21-7-2005 we had Treasurer Peter Costello commenting (ABC, Lateline);
QUOTE
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PETER COSTELLO: Well, this is not a question, I think, of taking state's rights. I think this is a question of conferring new individual rights. The right to actually contract on an individual basis, the right to get a job, the right to have higher wages. And to actually portray this as some constitutional issue is completely wrong. Look, can I tell you from the outset of Federation there was an industrial relations power conferred on the Commonwealth Parliament. You know why? Because in the 1890s before Federation started it was understood that industrial disputation didn't respect state borders, it can actually cross state borders and that's been going on for a very long period of time and if you can have a better system which can deal with industrial relations disputes and wages and employment and businesses, which don't stop at state borders, they actually trade across state borders you'd be a mug not to go down the line that will give you a better system.
END QUOTE
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Did anyone explain to Peter Costello that in 1890 there never were any State borders? States were created out of the Colonies when they federated. As such Colonial borders existed in 1890! 50
Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MCMILLAN: It seems to me that we must decide whether we will give this power to the Federal Government or leave it to the States. The object of Federation is, while federating on common matters, 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p341
not to interfere with the industrial and local life of the States. This is a proposition which goes a step too far, as you are giving a distinct power to override the States legislation. Is the power simply to be exercised with the consent of the States, or is it to be an overriding power. Mr. KINGSTON: It is a power which the Federal Parliament may exercise.
An HON. MEMBER: If they make any law it will override any local law. Mr. KINGSTON: Only where it is inconsistent. Mr. MCMILLAN: I have no legal knowledge to guide me, but it seems to me that everything that we put among these sub-sections is practically a power which necessarily overrides every other power, and therefore there is no doubt that while in some trade disputes their ramifications extend throughout the different colonies, still they are to a great extent local matters of dispute. Mr. HIGGINS: It will only apply where the dispute extends outside the limits of one colony. Mr. MCMILLAN: Here again I am met by my want of legal knowledge; but it seems to me that it is a difficult thing for the Federal Government to interfere, even where the ramifications of the disputes extend beyond the limits of a colony, without the consent of the States. I think there are sufficient powers in this Bill to enable some conjunction of interests between the Federal Government and the States in matters of this kind being effected; but I do not think that there should be any power included in this Bill which will so interfere with the local industrial life of any State as practically to dictate to the State with regard to trade disputes. Sir JOHN DOWNER: I confess I do not understand the clause, nor do I see what it means.
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Industrial dispute extending beyond the limits of one colony are the words used, but how can that happen? Mr. HOWE: A maritime strike affects the whole national life. Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in each State. Because there is the same dispute in other colonies, it does not create a dispute extending beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State, and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any dispute which in itself can extend beyond the limits of the State. Again; but I do not think that there should be any power included in this Bill which will so interfere with the local industrial life of any State as practically to dictate to the State with regard to trade disputes. Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir EDWARD BRADDON (Tasmania).-As one who voted in Adelaide on this subject, and as one who believes to the fullest possible extent in the value of boards of conciliation and arbitration, if such boards and courts can be arranged, I desire to justify in some measure my giving the same vote as I gave then. This amendment does not hand over to the federal power the entire dealing with industrial disputes over the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those disputes. And Sir EDWARD BRADDON (Tasmania).We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states.
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Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question. And
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If the honorable member's exclamation means more than I have explained, then the best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all the persons residing in the Commonwealth, independently of any law of any state. That is not intended,
Mr. BARTON.And
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Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws
Mr. BARTON.regarding property and personal liberty is still left with the states. We do not propose
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We leave that amongst the reserved powers of the states, and, therefore, having done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states,
to interfere with them in this Constitution. Again;
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If the honorable member's exclamation means more than I have explained, then the best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all the persons residing in the Commonwealth, independently of any law of any state. That is not intended,
Mr. BARTON.Hansard 17-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS: There are some disputes which cannot be dealt with by one State alone. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p343
Mr. SYMON: I think that every dispute is local to the State in which it originates.
If they arise in a particular State they must be determined by the laws of the place where the contract was made.
Mr. BARTON: 5
And Sir JOHN DOWNER: It does not extend beyond the limits of a State. The dispute is complete in itself in each State. Because there is the same dispute in other colonies, it does not create a dispute extending beyond the limits of the State. Each dispute is a dispute complete in itself [start page 784] in each State, and each State will have power to deal with it. Such a provision I think will be a fertile source of dispute. As far as the words are concerned, they appear to be simply meaningless, and I cannot conceive any dispute which in itself can extend beyond the limits of the State. END QUOTE from Chapter 000
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His Honour CALLINAN J stated; 15

QUOTE 675 It can be seen from those objects that the whole purpose of the Amending Act is not just to affect, but is to govern completely, all aspects of the relationship between employers and employees, without any attempt to connect, even by the narrowest of threads, those objects with some implementation of the corporations power. The opening words are that the principal object is " to provide a framework for cooperative workplace relations" and thereafter there is not to be found any reference of any kind in the section to corporations or the corporations power. Stated objects of legislation are not to be put aside lightly. END QUOTE Hansard 31-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SOLOMON.We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution: Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN FORREST (Western Australia).Because, as has been said before, it is [start page 357] necessary not only that the administration of justice should be pure and above suspicion, but that it should be beyond the possibility of suspicion; Hansard 9-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GLYNN.We ought not to create the evil of making the Judges not merely interpreters, but the extenders of the Constitution, and we ought to give the Constitution such a degree of elasticity as will render it capable of being moulded to the changed conditions as time goes on, and prevent the dangerous alternative of judicial expansion.
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But, lets us first deal with an issue not a single judge somehow bothered to deal with in their judgments. The issue being one of CIVIL RIGHTS His Honour CALLINAN J stated;
QUOTE 809 It is sometimes forgotten that at federation the colonies maintained their own defence forces. Section 51(vi) refers, in terms, to the naval and military defence of the Commonwealth "and of the several States", making clear that defence is to be exclusively a Commonwealth activity. There is something else however that needs to be noted about this provision. It is that, literally, that is textually exclusively, it appears to contemplate the use of the military forces of the Commonwealth to execute and maintain the laws of the Commonwealth[1021], at any time and in any circumstances. Elsewhere I refer[1022] to statements by judges of this Court to the effect that constitutional provisions should be construed with "all the generality which the words admit". The use of military forces, the imposition in 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p344
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effect of martial law in a democracy, except perhaps in times of external threat or civil insurrection, is anathema to democracy itself, and yet, if s 51(vi) is to be construed too generally and textually or literally, and without reference to other provisions of the Constitution, including perhaps that all of the powers are to be exercised to make laws for the good (democratic) government of the Commonwealth, that result might conceivably follow. END QUOTE QUOTE 810 Reliance was placed upon some remarks of Latham CJ in Pidoto v Victoria[1023] for a proposition that because the defence power was not subject to any restriction imposed by s 51(xxxv), nor should the corporations power be. Pidoto was decided in 1943 when Australia was still engaged in a war that menaced the whole nation. END QUOTE
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My books already extensively refer to that the Framers of the Constitution did not accept the Commonwealth to use its forces against any citizen in a State other then if specifically requested to do so in case of domestic violence (then meaning to be; civil war). As indicated in this document the Federal Government hasnt even powers to increase taxes in time of war outside the appropriation/tax Bill and as such hardly could be deemed to suspend civil rights where it had no such legislative powers in the first place. His Honour CALLINANA J also stated;
QUOTE 811 I next make reference to s 51(x), which is concerned with fisheries in Australia beyond territorial limits. My reference to this placitum is not so much for the language that it uses, but to show how this Court has departed, from time to time, from its earlier, and sometimes even relatively recent, decisions. In Bonser v La Macchia[1025], Barwick CJ, Kitto, Menzies and Owen JJ (Windeyer J dissenting) held that the Commonwealth Parliament had no power over fisheries under s 51(x) within three nautical miles of the coast of an Australian State. END QUOTE
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30 One should note that the Framers of the Constitution held that only within the 3-mile zone existed powers as beyond fell within the UK Parliament powers, albeit accepted that it could be extended in future times, pending British legislation. 35 * Didnt CALLINANAN J raise the issue of Lange in Lange v Australian Broadcasting Corporation of freedom of speech? **#** He did and I will quote this in a moment. The issue however is that this case before the Court was not just one between the States and the Commonwealth of Australia as to who has certain legislative powers, but was also and so in particular if the CIVIL RIGHTS of a worker to enter into a contract upon local laws, of a State, could somehow be interfered with by the political union called Commonwealth of Australia! You see, it is like the right to vote (Section 41 of the Constitution) and the right therefore to not to vote. * I get you, you refused to vote and succeeded in Court on constitutional grounds, is that it? **#** You are on the right track. Not only did the Framers of the Constitution refuse to accept compulsory registration and voting (Hansard 15-4-1897) but no Colony at the time had any compulsory voting and the Framers of the Constitution made clear that people may desire not to vote in referendums. Hence, Referendums are to be counted upon the number of people who are actually voting and not upon the number of electors that might be entitled to vote. If one does a close scrutiny of what the Debates were about you will find that the Framers of the Constitution were very careful not to tie down the referendums to the number of electors entitled to vote but in
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fact did debate that many may not desire to vote and so it should be considered upon the votes that was actually done. 5
Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: If the franchise were uniform I do not think that the more populous States should have their abstinence from voting allowed for, as it is in this plan. It might even enable them to negative a proposal which secured, not only a majority of the States, but actually a majority of those persons who took the [start page 1026] trouble to go to the poll. And Mr. DEAKIN: The amendment would be defeated solely by the abstinence from voting of that very large State.
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In 1915, the Commonwealth of Australia contemplated to hold a referendum to make voting compulsory but this was aborted. Since then some States introduced compulsory voting and then the Commonwealth of Australia introduced on a private members bill in about 1923 for compulsory voting legislation. * So they were entitled to do so? **#** No, because as the Framers of the Constitution made clear, the Commonwealth of Australia could not restrict the rights of electors for what they had in their State legislative powers. As such, at the time of the introduction of compulsory voting by the Commonwealth of Australia there were several States who had no compulsory voting and as such the Commonwealth of Australia unconstitutionally in that regard introduced compulsory voting. * You stated at that time, is that meaning they could have done so if the legislation had been introduced at a later stage after all States had introduced compulsory voting?
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30 **#** No, because as I stated the Framers of the Constitution had specifically refused to give such legislative power to the Commonwealth of Australia and as such the fact that the States introduced compulsory voting could not somehow circumvent this embedded prohibition. More over, we should look at what the Framers of the Constitution stated at the conclusion of the Debates, having passed the Constitution Convention Bill 1898;
Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN.In this Constitution, although much is written much remains unwritten , And Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire . A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not intend to enter into any detailed examination of, or any elaborate apology for, the Constitution which we have been engaged in framing. But, sir, no man can remain unmoved upon this momentous occasion. We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. Again; 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p346
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What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite.
5 The wording political liberty and A charter of liberty is enshrined in this Constitution clearly underlines that while the commonwealth of Australia may put in place a general mode of voting, as this they extensively debated, it could not however force anyone to vote or deny to vote. 10 * But, doesnt the Commonwealth of Australia deny people to vote if they travel overseas? **#** Well in certain instances it does and so unconstitutional as Section 41 of the Constitution secure their right to vote, regardless if they desire to vote or not. It is their liberty to vote or not to vote. The quotation above also makes clear it is; This new charter is to be given by the people of Australia to themselves. As such, where there are two parties in dispute about the legislative powers, being it the States and/the Commonwealth then the High court of Australia cannot resolve this with a total ignorance that the People own the Constitution and their rights and interest are not considered, but it must consider if those civil rights are appropriately catered for as intended by the Framers of the Constitution. Something I will address a bit later. We now turn for a moment to the judgment of CALLINAN J
QUOTE 742 The Engineers' Case overruled D'Emden v Pedder[883]. Those who constituted the Court when the earlier case was decided were, for the most part, closer in time, circumstances and knowledge to the Constitution, and their substantial contribution to it, than the Justices who comprised the Court in the Engineers' Case. In D'Emden v Pedder Griffith CJ found an implication in the Constitution of noninterference of the respective polities with one another by necessity[884]. The joint judgment in the Engineers' Case criticized that interpretation as depending upon an implication formed on the "vague, individual conception of the spirit of the compact" [885]. I interpolate that it is difficult to reconcile this criticism with the inference by this Court of an implication of freedom of political speech drawn by this Court many years later in Lange v Australian Broadcasting Corporation[886], not from the spirit of the compact,
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but from the "structure"[887] of the Constitution and on the basis of the judges' perceptions of contemporary society and conditions[888]. 743 There are references in the joint judgment in the Engineers' Case to the desirability, in the interpretation of the Constitution, of adherence to the ordinary, or the "golden", or the "universal" rules of construction of statutes[889]. One such rule, to which lip service only seems to have been paid, and it may be observed, not only in that case by the Commonwealth, but also in some subsequent cases, is the necessity to read an Act of Parliament, and by analogy, a constitution[890], as a whole, a matter of particular relevance to this case as I
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have already said. END QUOTE QUOTE [883] (1904) 1 CLR 91. [884] (1904) 1 CLR 91 at 110. [885] (1920) 28 CLR 129 at 145. [886] (1997) 189 CLR 520. [887] (1997) 189 CLR 520 at 566-567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. In the passage cited there is a reference to "text" as well as "structure" but the relevant language of the text is not identified. [888] (1997) 189 CLR 520 at 570-571, citing McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264. [889] (1920) 28 CLR 129 at 148-150. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p347
[890] In the Engineers' Case (1920) 28 CLR 129 at 151 the joint judgment acknowledges that the ordinary meaning of the terms employed in one place may be restricted by terms used elsewhere: "that is pure legal construction", but the judges, having made that statement, do not appear to have applied it. END QUOTE
You may notice that the Engineers Case for example was in 1920 at a time the High Court of Australia had banned the usage of the Hansard records of the Constitution Convention Debates to be used. * Why?
10 **#** Well, I discovered that OConnor seemed to have had a hand in this in 1904, and I concluded this may have been as to avoid litigants (so their lawyers) to rely upon the Hansard records of the Constitution convention debates as to prove their point. 15 * Isnt that a serious issue? **#** Indeed, I view it is. Lets have a look what Griffith stated in 1907, and then check back what he stated being one of the Framers of the Constitution; 20 The joint judgment referred to;
The question was whether it also was a law with respect to corporations of the kind described in s 51(xx). Griffith CJ, who was in the majority, said[12]: "It is common ground that [the relevant sections of the Australian Industries Preservation Act], as framed, extend to matters relating to domestic trade within a State, and the question is whether the power to make laws with respect to 'foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth' extends to the governance and control of such corporations when lawfully engaged in domestic trade within the State. If it does, no limit can be assigned to the exercise of the power. The Commonwealth Parliament can make any laws it thinks fit with regard to the operation of the corporation, for example, may prescribe what officers and servants it shall employ, what shall be the hours and conditions of labour, what remuneration shall be paid to them, and may thus, in the case of such corporations, exercise complete control of the domestic trade carried on by them."
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However it omitted to use this clarification; 35

Hansard 6-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should not be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an interference with property and civil rights. Does the hon. member mean that a court of conciliation might direct that the wages of workmen should be raised?
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Mr. KINGSTON: That is a question of detail! Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle like that, because that might entirely depreciate the value of property in a state, or drive an industry out of a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to get this power for the federal parliament, that we ought to hold fast by the principle that we are not going to interfere with the rights of property in the states. Again; I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an interference with property and civil rights.
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50 In MODERN POLITICS AND GOVERNMENT, Fourth Edition by Alan R. Ball, ISBN 0333-46413-3 (paperback) at page 33 corporatism 55
Corporatist approaches are the most recent of the investigation of where power lies. Modern corporatism emerged in the 1970s to analyse power distribution in the contemporary liberal democratic state. Corporatism 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p348
stresses the incorporation of certain groups in society into the decision making process. The state benefits from the co-operation and expertise of groups such as industrialist and trade unions in the implementation of political decisions, while the groups gain from a share in political power and the recognition of their monopoly as representatives of certain societal sections.
5 It ought to be clear therefore, that the modern way of conduct of corporations may be different then it was at the time of federation. An added problem has been that the Commonwealth of Australia engineered not just businesses but even State Government Department and the courts to have ACN/ABN numbers for taxation purposes it has resulted that public utilities are not incorporated. Therefore, when dealing with the Corporation power within Section (xx) one must be extremely careful not to allow this power to be used to the maximum where the Commonwealth of Australia somehow artificially manufactured a requirement of registration of corporation. Indeed, if this kind of conduct were to be accepted then no subsection might be safe from being unconstitutionally exploited as all the commonwealth of Australia is to do is to engineer a change in meaning of what the 1898 text stood for to be altered by implication. The example of the word gay set out below is a clear example.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and overriding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Again; . For instance, our factory laws are left to the state.
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35 When dealing with the Framers of the Constitution and how they later as judicial officers made statements one must not neglect to check back what their position was during the framing of the Constitution and later. It is a well known factor that politicians say one thing and does another when elected. Also, when dealing with Isaac you need to keep in mind that he was in favour of total federal control of industrial relations while a Framer of the Constitution, and having been unsuccessful may perhaps have misused his position to achieve after federation what he was unable to obtain during the framing of the Constitution. As such, their statements when framing the Constitution should be held more reliable then some statement made after the Commonwealth of Australia was already in force. Re Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. GLYNN Does that put a maximum on military expenditure? Mr. PEACOCK: A maximum on all expenditure! Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole of the expenditure cannot exceed the total yearly expenditure in the performance of the services and powers given by the Constitution, and any powers subsequently transferred from the States to the Commonwealth. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p349
Mr. SYMON: Does that prevent any increase in case of war? Mr. BARTON: Yes. END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
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If the Commonwealth of Australia cannot even increase taxes in time of war how then could it possibly have any greater powers to suspend civil rights? His Honour CALLINAN J stated; QUOTE 648 As the joint judgment notes, the Act empowers the Minister to terminate a bargaining period, if he or she is satisfied of certain matters, including, that industrial action is threatening the health or welfare of the population, or part of it, or would cause significant
damage to the Australian economy, or an important part of it [723]. These points should be made about this provision: true it is that the Minister's power is confined to the termination of a bargaining period, and that it is the AIRC which is given the jurisdiction to order that "industrial action" stop, but direct executive involvement of this kind in the affairs of non-governmental employers and employees would represent a significant departure, not only from current industrial practice, but also industrial law generally[724], except perhaps in times of war, or otherwise in implementation of the defence power. END QUOTE Again; except perhaps in times of war, or otherwise in implementation of the defence power.
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There is no such powers within the defence powers for the Commonwealth of Australia to suspend civil rights and the purported amendments to the ASIO legislation commonly known as TERRORIST ACT are and remain unconstitutional, as it infringes upon the civil rights of the people. If just judges did first extensively researched the Hansard records of the Constitution Convention Debates before they formed an opinion and indeed before putting it in a judgment. The fact that judges previously may have made such ill-conceived statements can be no excuse to repeat the same. Kirby J stated in his reason of judgment;
562 The defence power: In the joint reasons, reliance is placed upon this Court's wartime decision in Pidoto v Victoria[636]. Reference is made to the interpretation of that case by Gleeson CJ in Pacific Coal[637]. In that decision, his Honour stated that Pidoto denied an interpretation of s 51(xxxv) as importing a negative implication on the use of other heads of federal power to enact laws with respect to conditions of employment in other words, laws generically answering to the description of laws with respect to industrial relations. The holding in Pidoto was that laws enacted under the defence power in time of war, dealing with industrial matters in ways that would not have been valid if enacted under s 51(xxxv), were nonetheless valid. The decision is one unique to the exceptional circumstances affecting the ambit of the defence power during hostilities that threaten the life of the nation. 563 In his reasons in Pidoto[638], Williams J referred to an earlier elaboration of the law in Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations)[639]. In that decision, his Honour had said of the defence power in this connection: "The paramount consideration is that the Commonwealth is undergoing the dangers of a world war, and that when a nation is in peril, applying the maxim salus populi suprema lex, the courts must concede to the Parliament and to the Executive which it controls a wide latitude to determine what legislation is required to protect the safety of the realm ... Similar circumstances to those which in times of war enable the Parliament of Canada to encroach upon matters which in normal times are exclusively reserved to the States [sic] enlarge the operation of the defence power of the Commonwealth Parliament to enable it to legislate so as to affect rights which in normal times are within the domain reserved to the States".
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How on earth can the Commonwealth of Australia somehow in war-time have different powers then in peace time, one may ask? The Framers of the Constitution did not present such a scenario at all. The purported WAR AGAINST TERROR it self should be a warning that such
application of the Constitution could have severe consequences. Simply, war or not, if the Government is not even able to increase taxation to fund war then it hardly could do better in other areas. Again, the High Court of Australia should not decide upon LEGAL FICTION but at least give a reasonable consideration to it all. 5
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are.
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Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is considered by all of us (subject to this exception, it may be) a thing of purely domestic concern. We do not want to interfere with the domestic life, or with industrial life, except in the last resort. If you are going to introduce such a thing as this it must be the Federal Ministry which will have to decide, subject to the Parliament, and you will introduce the greatest complication and intensity of feeling that was ever seen. Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question.
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Hansard 16-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. WISE: They forget that this commonwealth can only deal with those matters that are expressly remitted to its jurisdiction; and excluded from its jurisdiction are all matters that affect civil rights, all matters that affect property, all matters, in a word, affecting the two great objects which stir the passions and affect the interests of mankind. And Mr. WISE: I fail entirely and I shall be glad if some alarmist will enlarge my views on this matter-to perceive in this bill any question on which there is any possibility of a conflict between the states and the people, except, in one respect, and I will define that in the largest possible way. In legislation affecting commercial interests, or financial interests, it is possible to imagine that the states will be brought into conflict as states with the concentrated majority of the populations of the two large states over a question of trade. It is possible to imagine the same thing arising over a question of commerce, or over a question of finance. Now, I ask if such a state of things arises that the Committee will give attention to the nature of the interests which are threatened. If conflicts arise over matters of commerce, trade, or finance, the interests that are threatened are not the interests of individual traders, but the interest of the state as a whole conducting a general class of business, or carrying on a particular sort of occupation. I will test what I mean. An effort is being made now in Victoria to grow beet for sugar; I hope it maybe successful. A similar effort in its earlier stages is manifesting itself in this colony. Supposing that the sugar interests in Victoria, and the sugar interests in New South Wales, became very powerful, and employed a large number of hands, and influenced the legislature. It is then possible I do not think it is likely, and I am only giving this as an illustration of the way in which, it appears to me, any conflict can arise it is possible that the voters in Melbourne and Sydney, largely interested in beet sugar, should insist on their representatives putting a heavy excise duty on cane sugar. This might have a prejudicial effect on the jam industry of Tasmania, and the fruit industry of South Australia. It is easy to see that it is possible that the two large colonies could so manipulate the powers to regulate trade and commerce that they would be able to crush out or inflict a very serious blow on the commercial prosperity, not of an individual, not of the whole commonwealth but on a particular group of individuals who are enabled to carry on an industry which is affected, because they live under favourable climatic conditions. Is that a power which we can expect these colonies [start page 645] that are affected readily to concede? I will reverse the position. There is one clause in the constitution which gives the commonwealth power to regulate trade and commerce, and communication between the states for the purpose of furthering commerce necessarily follows the federal parliament in order to give effect to that provision. Everyone will admit that one very useful means of communication is a river, and that if the power of regulating trade and commerce is to be unanimously conceded to the federation, logically the federation should be able to take over the full control of all the river systems which may be made navigable, or which are navigable throughout the commonwealth, especially where those rivers pass through one colony into another. Yet there is not the most violent enthusiast in New South Wales, over what he considers this popular rule, who does not insist, and properly 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p351
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insist, that New South Wales cannot and ought not to surrender the control of her river system to the federal parliament. For what reason? Because our rivers are wanted for internal purposes of irrigation, because our rivers serve the double purpose of developing our national resources-the resources of New South Wales as a state-as well as the purpose of assisting communication and furnishing means of navigation from one part of the commonwealth to the other. If those who insist that the small states are never to be allowed to protect themselves against the possibility of unauthorised irresponsible power, of unduly exercised power by the majority of the populations of the larger states, logically they will also insist that we, who represent them here, should hand the control of our rivers absolutely over to the majority of the commonwealth. Why, to parody their argument, should not the majority rule? If the majority want to use the rivers of New South Wales for navigation, and to prevent us from using them for irrigation, why should not the voice of the great majority prevail? An HON. MEMBER:Mr. WISE: The answer is a simple one. I am not dealing with theories. I am dealing with facts. I accept the facts. The answer is this: we intend to develop New South Wales as a separate state by utilising, our natural resources. We do not dispute that logically you may demand these rivers; but we say that we require their waters for other than commonwealth purposes, and we intend to keep them. It, therefore, seems to me that a great deal of this cry for the rule of the majority comes from those who are very well disposed to the rule of the majority when they form the majority, but who are quite determined that they shall not submit to that rule when there is a possibility of their being left with the minority. It reminds me of the incident in the Philadelphia Convention when the question arose as to the United States being allowed to confer titles of honor. One bluff and hale democrat declared that for his part he would support a peerage, if he were quite sure of being one of the dukes; but as he knew that he had not any chance of that, be was opposed to any peerage whatever. And so with us, or some of us. They will support the rule of the majority so long as there is no fear of the majority controlling their special interests. But the moment it is said we should hand our railways or rivers absolutely to the rule of the majority, then we have the most clamorous cries on behalf of state rights raised by the very men who, when the interests of other states are involved, are most generous in giving them away. What is, after all, the possibility of a conflict? When the causes are gone, the possibility is reduced almost to a minimum. But supporting that in the matters I have referred to a conflict arises. We have the means of getting [start page 646] rid of the conflict by ordinary good sense, and if that fails by a dissolution, and, a third method is proposed. After all these methods have come into play, will it not be a fraction of a fraction of cases in which any insoluble conflict arises between the people of the states? I would not hesitate to say that, in the last resort, if the power of the concentrated state populations were used I do not believe it ever will be to destroy the country interests, the interests of the interior, the people of the sparsely populated districts have the right of self-preservation. Mr. HIGGINS: My hon. friend confounds the interior with the smaller states! Mr. WISE: I accept facts; and, indeed, that is the distinction: that two large states have the great city populations. It is the small states in a rudimentary or earlier stage of development which have an agricultural, pastoral, and mining population. It is the concentrated population which makes a large state. That which makes New South Wales a large state is that it has Sydney; that which makes Victoria a large state is the possession of Melbourne. In point of territory they are smaller than either Queensland or Western Australia. Mr. HIGGINS: There is the same proportion of town population in Tasmania as in New South Wales! Mr. WISE: It is not a question of population. The character of the people's pursuits is determined by the climatic conditions very largely, and by the question whether or not they are engaged in the development of internal productiveness or in the carrying on of external commerce. I want to meet the argument that all I can say can be turned the other way. I deny that. The relative position of the small states towards the large ones in questions that may give rise in conflict is not the same. The relative position the small states to the large states is not even an equivalent position; for this simple reason: In the long run, and behind, everything, is the ultimate sanction of all law that is, physical force. Behind the legislator there is the policeman, and if the case did arise where the small states, by opposing their veto to a scheme which had passed by a large majority the representative assembly, did disorganise the industries of the large states, if they did affect their existence as states, if they did give rise to such a tremendous outburst of feeling that the national progress of Victoria or New South Wales; felt itself imperilled, I ask who is going to enforce that veto? How will the small states ever be able to give expression to their will? In the ultimate resort the large states have the power of effective resistance by reason of their population. In the ultimate resort the small states have not that power. The small states could be coerced by force-physical force if necessary and the large states could not. Therefore, we are in this position: we are dealing with imaginary dangers and difficulties, which no one here admits or considers are likely to arise difficulties which may conceivably arise; but if they arise as against the large p352 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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states, having it in their power to protect: themselves, they. arise in the case of the small states without that power; and all the small states, are now asking is that they shall come under the constitution with the physical power of the commonwealth to protect them in the last resort, which the large states have by reason of their numbers; They should be given that same power by a provision in the constitution which enables them to oppose in the long run an ultimate veto, not of the senate, but an ultimate veto of the votes of their own people against any proposal which is intended to deprive those people of their liberties.
A fact that should not be overlooked is that the passing of the amendment Act of Industrial Relations (WorkChoices) was as a result of an act of constitutional TERRORISM. 10
November 03, 2005 Question Time Question Time in the House of Representatives descended into chaos today. Rowdy, uproar, fiery does not describe what happened.
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It was a shambles for half an or so, caused by a parliamentary brawl. The speaker's authority was continually challenged by the ALP, and rightfully so. Another seven MP's were ejected from the Chamber by a biased speaker:--that is 18 MP's in two days: 17 ALP and Liberal. Yet it takes two to tango--hurl the taunts, jeers, sneers, and abuse. However, a blind eye is being turned to the front bench of the Howard Government by the Speaker, even though the Ministers are not answering the questions asked of them.
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So we go from point after point of order on relevance being made by the ALP. And they are right in 9 out of 10 situations. The Speaker is not independent nor are his rulings fair. He is out of his depth and goes along, and supports, the Howard government's white-anting democracy. The Speaker really ought to be defending Parliament from the executive's power grab.
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Posted by Gary Sauer-Thompson at November 3, 2005 08:34 PM Trackback Pings TrackBack URL for this entry: http://www.sauer-thompson.com/mt2/mt-tb.cgi/3580 Comments
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While I am aware about the ejection of ALP members, I for one rather ignore this in this case in view that there is a far more serious issue to confront. As I made clear in my correspondence to the Speaker, he is there to ensure that all Members of the Parliament have equal rights in representing their constituency and therefore cannot tolerate that Members have to vote on a bill without each Member having its own copy. The speaker owns a duty foremost to the office of the
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Speaker well above his political associations. It is his task to ensure that Members have sufficient time to consider bills before being requested to vote on a Bill. In my view, the fact that most members of the opposition were not provided with a copy of the Industrial Relations Bill should have been totally unacceptable to the speaker and he should not have allowed the
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presentation of the Bill unless first every Member was provided with a copy of the Bill. It does not matter of government political parties have the majority in the house, it is an issue that the Speaker is responsible for proper conduct of what is going on in the House. Perhaps, had the Speaker, so to say, some credibility, then a lot of problems could have been avoided in the first place regarding the non availability of copies of the Industrial Relations Bill.
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Posted by: G. H. Schorel-Hlavka at November 5, 2005 03:47 PM 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p353
GH, I could not agree more with your argument. See this for the role of the Speaker. Maybe the ALP will become serious about defending the power of Parliament as an institution, rather than
just itching to get their hands on the machinery of executive dominance. They do need to develop some reform proposals to improve the functioning of democracy as well as concentrating on clever theatrical parliamentary tactics. Posted by: Gary Sauer-Thompson at November 5, 2005 04:30 PM
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Please do read Chapter 32B What is CONSTITUTIONALLY the meaning of TERRORISM before continuing reading further, as to get a better perception We have found that despite what the Framers of the Constitution stated the Senate is being terrorised by the Government of the Day to deny it appropriate time to consider the Amendment Act, and what was shown already below the House of Representatives also had the same problem where members were not even provided a copy of the relevant Amendment Act.
Hansard 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. REID.Under ordinary circumstances nothing more is heard of the Bill that session, and there is a prorogation. Then the Ministry and the House of Representatives have time for further reflection, and they bring in the Bill next session, no doubt in the shape nearest to that which will commend it to the Senate. That Bill goes up to the Senate, who then either accept it or again amend it. Fresh efforts are made to come to an agreement by various means, including, perhaps, a conference, and still it is found that it is impossible to agree. Then there is a dissolution on the Bill, and the whole of the electors are appealed to as to whether the Senate was right in refusing to pass the Bill in the shape in which it was sent to them the second time. There is a verdict by the electors. What is the issue? The issue clearly is: Who was right? And Mr. ISAACS.Obviously, therefore, it is quite conceivable that if questions arose in which the interests, real or supposed, of the more and the less populous colonies diverge, the two Houses would come into direct conflict. Not less plainly it would be of great consequence to the Australian Commonwealth that such dead-locks should be determined as speedily as may be, and also in a sense which would commend itself, as far as may be, to the general approval of the great body of the colonists. And Mr. ISAACS.-The work was issued in 1896, and therefore embodies, I should may, the latest phase of thought on the subject. I think that this passage answers nearly every objection that has been raised, or, as I conceive, can be raised to the fairness of the referendum:-
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If the electorate is to judge policies, it is surely less likely to err if it judges them on a clear and distinct issue. In such a case it is most likely to act independently, and not at the dictation of wire-pullers. It is to be remembered, too, that the referendum is not intended as a substitute for representative government. All the advantages of parliamentary debate would still remain. Policies would not be thrown before the electorate in a crude undigested undeveloped state. All measures would still pass through Parliament, and the great majority would be finally decided by Parliament. It would only be in a few cases, after a measure had been thoroughly discussed in all its bearings, after the two Houses had given their judgment, that the nation would be called to adjudicate. The referendum would be an appeal from a party majority, probably made up of discordant groups, to the genuine opinion of the country. It would be an appeal on a question which had been thoroughly examined, and on which the nation had every means of arriving at a conclusion. It would be a clear and decisive verdict on a matter on which the two branches of the Legislature had differed. Let me come to another writer in 1897. Professor Sidgwick, in the second issue of his work, at page 559, having already spoken about the inadvisability in his opinion of direct legislation in ordinary cases, with which I need hardly say I most thoroughly agree, says-
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There are, however, special cases in which the direct intervention of the people in legislation appears to me on the whole advantageous. The first case arises when in a Legislature constructed on the twoChamber system, it is important to avoid a dead-lock resulting in a disagreement between the two Houses, that is, when the urgency of the need of some legislation on a particular point is generally recognised, but the Chambers cannot agree on the form that the legislation is to take. Under these conditions, a reference to the citizens at large has many advantages as a method of terminating a, disagreement. The dignity of the other Chamber is saved if it has to yield to the people and not to the rival Chamber, while by the reference of a particular measure to the judgment of the citizens a more clear expression of the people's will is obtained than a general election of representatives can give. Again, the process is more educating, since a single definite issue is [start page 2185] placed before the country. It also avoids the danger involved in the representative system that an interested or a fanatical minority of citizens may, by concentrating the whole voting power at a general election on a particular question, obtain a fictitious majority of representatives pledged to support this demand.
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Albeit it wrongly, the High Court of Australia decided that plural Bills could be considered where there had been a double dissolution and the Houses were considering bills jointly. This document would not allow for the full set out and neither is it required as my various books already canvassed this issue extensively, but the Framers of the Constitution made clear that unless the government of the Day did pursue a Double Dissolution where a Bill was twice blocked, it must be deemed that the Bill no longer was left on foot if the Parliament continued proceedings regardless of the second defeat. The Framers of the Constitution made clear that a bill was to be the trigger for a Double Dissolution and a Parliament may simply hold it undesirable to pursue a Bill that was twice rejected, a Double Dissolution might not be wanted by them for political or other reasons. Hence, a bill must be deemed abandoned if after the second rejection the Parliament continues its business without the government of the Day seeking a Double dissolution. It must be recognised that the High Court of Australia at the time did not consult the Hansard records of the Constitution Convention Debates, albeit by its own caused fault for refusing to allow, albeit unconstitutionally, the usage of the Hansard records of the Constitution Convention Debates, and as such there can be no excuse. In fact, its decision to allow Senators to vote in the Senate is a sheer absurdity as the Hansard records of the Constitution Convention Debates made clear that Territories could have their representatives in the Senate but they would not be entitled to vote as they first had to obtain Statehood. Again, these and other matters have been extensively canvassed in my previous published books. As such, where the High Court of Australia handed down decisions in the past which were if not totally absurd were ill conceived then it is an error to rely upon those judgments which never had the benefit of being considered using the Hansard records of the Constitution Convention Debates. It is therefore not relevant what Higgins, Isaacs, OConnor, Barton, etc, etc, stated in judgments since federation where they had circumvented the usage of the Hansard records of the Constitution Convention Debates, this even so Barton himself as like many others pointed out during the Debates that the High Court of Australia would be obligated to interpret the Constitution using the Hansard records of the Constitution Convention Debates as to what their recorded intentions were.
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Mr. WALKER.-Yes. He saysIf the Sovereign is to retain any prerogative rights in respect to the Commonwealth, the choice of her own representative would surely be included amongst them. If it is desired by the Parliament at any time that the prerogative should not be exercised by the Sovereign in a particular way, an address indicating their desires is more in accordance with usage and constitutional theory than an enactment purporting to limit its exercise. I shall not go further with this matter beyond stating that I have found reason to change my opinion, and that I intend to support those who wish to retain the prerogative of Her Majesty. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p355
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Yet, somehow we find that John Howard as purported Prime Minister is signing documents, such as the appointment of the Governor-General even so constitutionally he has no such prerogative powers. Hence the appointment is unconstitutional. Indeed, as I have exposed in my various published books there appear to be usage of fraudulent signatures of her majesty Queen Elizabeth II and as such the validity of the appointment of the Governor-General and other also is and remains to be in question. Likewise the terror caused on orders of John Howard to order the naval forces illegally to tow unseaworthy boats into the ocean and leave people to the perils of the sea and having as result people drowning, is a disgraceful conduct yet the High Court of Australia appears to me to be silent totally and if anything has unconstitutionally supported this kind of excessive unconstitutional conduct if not directly then indirectly by its decision regarding refugees, such as but not limited to its decisions to authorise ADMINISTRATIVE DETENTION. At the time of federation no Commonwealth prisons existed and the Framers of the Constitution neither intended any to be created and in fact provided for Section 120 of the Constitution that anyone accused (formally charged) or convicted was to be detained in a State prison under State authority. The Framers of the Constitution made clear that there was a DUE PROCESS OF LAW, which required to be followed before a State Court with a judicial decision and the person ought to be heard. Somehow the High Court of Australia is able to elicit from the Constitution convention Debates what might suit it in regard of corporations power but somehow it seems to me to have been totally unable to do the same governing DUE PROCESS OF LAW. I do not know if this term DUE PROCESS OF LAW is beyond the competence of some judges to understand what it stands for but as they proved able to read Hansard records of the Constitution Convention Debates they then likewise should have been able to read relevant parts as to DUE PROCESS OF LAW. Indeed, my 19 March 2003 application for prohibition/mandamus within Section 75(v) of the Constitution pursued the release of all unconstitutional held persons in the concentration camp styled Commonwealth Detention Centres, but the High Court of Australia simply refused my constitutional right to have this determined upon its MERITS. On that basis it is not that the Court did not have a case before it that it could invoke jurisdiction, rather that it refused time and again to allow my applications to be determine upon the MERITS of the Applications, which also was dealing with CITIZENSHIP Yet, soon afterwards the High Court of Australia then made known that layers should put a case before the Court to challenge CITIZENSHIP. This after it was provided already with 8 copies of my 30 September 2003 published book; INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed. ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X In my view, the High Court of Australia is operating to a great extend incompetently and lacks appropriate consideration in certain cases. Hence, the Government of the Day can continue its DICTATORSHIP unchecked as I experienced that once I challenged issues upon constitutional grounds against the Governor-General as the first Defender, the judges all visited subsequently the Governor-General and fraternized with him and to no surprise to me my case thereafter was blocked from proceeding. It ought to be clear therefore, that while judges may quote past decisions and may argue that none of the parties sought to challenge past decisions on foot (authorities) in my view that is not relevant as the High Court of Australia itself having created this utter legal mess is obligated to revisit the true constitutional interpretations of certain parts of the Constitution and not blindly follow past decisions which were made in clear defiance of the Framers intention that the judges should interpret the Constitution as per their intentions expressed and recorded in the Hansard records of the Constitution Convention Debates.
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No party appearing before the Court has any position to demand the High Court of Australia to act according to constitutional requirements as the judges themselves are obligated to do so if they desire to invoke jurisdiction. If they refuse to accept what is constitutionally required then they cannot be deemed to have invoked legal jurisdiction and are more likely to have its proceedings held to be like a KANGAROO COURT and/or a STAR CHAMBER COURT where the rule of law (the constitution) is sparingly used or manipulated to extracts some decision most suitable, as some may perceive, to their political masters. In the book; The Australian CONSTITUTION ISBN 0 642 00587 7 At page 29;
The States derive their constitutions and powers from British statutes , just as much as the Australian government derives its structure and powers from the British statute embodying the Constitution: it follows that the State sets of constitutional laws continue in force except to the limited extent that the federal set is inconsistent with the State set.
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Therefore, it is not that the States were created out of the Commonwealth of Australia as that is a LEGAL FICTION, the States were the renamed Colonies and underwent no alterations other then of those implied by the constitution in the Commonwealth of Australia Constitution Act 1900 (UK) and that they no longer for this could remain to have sovereign Parliaments empowered to make any legislation it pleased.
At page 32; This picture is to some extent misleading and to some extent incomplete. It is misleading be cause although the Ministers do meet to decide general executive policy, they do not meet as members of the Federal Executive Council. The meet as members of Cabinet, a body nowhere mentioned in the Constitution. The Executive Council is a purely formal body, consisting of the Governor-General and usually only two or three ministers, and its purpose is to receive formal advice and to approve the signing of formal documents. It correspond to the queens Privy council in Brittain. Cabinet, the real cont rolling executive, meets without the governor-General; it has its own offices and secretariat, and its presiding officer is the prime minister, who,- like Cabinet gets no mention in the Constitution. The constitutional sketch is incomplete in many ways, of which we need mention only two.
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If we then couple with this the requirements in Section 57 of the Constitution where there Appropriation Bills to go through a certain regime as any other Bill if twice rejected, yet the appropriation bills resulting from the Budget(which is not handed down until may prior to the new financial year) then it must be obvious that the government of the Day is blackmailing basically the parliament by having to vote for the appropriation bills regardless of or otherwise the country could grind down to a stand still in regard of the federal public service running out of money by the start of the new financial year. When G. Whitlam was unconstitutionally kicked out by sir John Kerr, it was found that the reading of the proclamation from the steps of parliament House somehow made it legal, this, even so the Framers of the Constitution made clear that not unless a proclamation is published in the gazette can it be acted upon. More over, the Framers of the Constitution made clear that the Governor-General could only interfere with a Double Dissolution to deal with a deadlock of a Bill. There was no such provision to allow a Governor-General to get rid of a Prime minister and then have someone else taking over and so to break a deadlock and then to have the Senate voting and then call a Double Dissolution. Why on earth have this elaborate system in Section 57 of the Constitution if the Governor-General can manipulate his powers at will?
At Runnymede, in 1215, the Barons of England forced King John to sign the Magna Carta, one of three primary documents establishing the fundamental rights of the English people to this day, {The others being the revision of the Magna Carta in 1225, the Petition of Rights [1628] and the Bill of Rights [1689]}. The primary objective and content of the Magna Carta was the prohibition of the use of Summary jurisdiction [the Roman or Admiralty Law] as a means of unauthorized taxation and seizure of property without due process of Law or just compensation. The colonists were, on the whole, very well schooled in the Common Law 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p357
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and were quite aware of the wrongs that King and Parliament were committing against them. This eventually forced them to rebel. http://www.biblebelievers.org.au/cmlaw1.htm
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What Sir John Kerr did was to vandalise the very constitutional protection invoked with the Bill of Rights 1689, which was created subsequently to King James II having sacked the AttorneyGeneral and for this the parliament held it better to dispose of the King (without terminating his life) by offering Prince William of Orange of The Netherlands to be crowned King of England (by marriage to Princes Anne, daughter of King James II) if in return he signed the Bill of Rights. Sir John Kerr did not exercise his ordinary powers to prorogue the parliament but rather covering his own mistakes made a political decision to trample upon the then Prime Minister G Whitlam. After all, not the Prime Minister or even the Treasurer are constitutionally in charge of finances but as the Hansard records of the Constitution Convention Debates makes clear the GovernorGeneral is the Administrator the Executive officer as they stated. Hence, any governor -General must be in control as that is the job for which he is appointed for to represent the monarch, and as the administrator must make sure that the appropriation Bills are submitted to the parliament well before the new financial years is due and considering the events prescribed in section 57 of the Constitution to be followed and further a joint sitting if needed. It therefore ought to be clear that we have a DICTATORSHIP that purports to be a DEMOCRACY. And, we have a toothless tiger, so to say, of a GUARDIAN OF THE CONSTITUTION, the High Court of Australia, that cannot even manage to have its own affairs in order and thereby neither then can ensure that the Commonwealth of Australia is managed in a constitutional manner. Again, it cannot excuse itself that it has no judicial power to interfere as my application within Subsection 75(v) was in fact giving it the jurisdiction it needed to deal with numerous unconstitutional matters. Yet, despite these unconstitutional conducts by the Government of the Day (and that is in question also if it is a legitimate Government) the High Court of Australia seems to be totally ignorant to what should be done. What constitutional position did the Commonwealth of Australia have where there was no duly elected government in the first place? Who did the federal government lawyers then represent. The same could be stated about the State Government lawyers as they all lacked Australian CITIZENSHIP. It appears to me the only people having a valid standing where the union legal representatives as they were there to represent the workers democratic rights, their civil rights, their rights to having the liberty to contract their labour, etc. As is set out in this document, industrial relations is about the right of workers. Their civil rights to enter in a contract they desire. Sure, if there is a dispute beyond the border of one State then the Federal Government was given constitutional powers to legislate as to how a dispute was to be resolved, but it is another matter to hold that somehow before any dispute existed, let alone was to spread beyond the border of one State, somehow the Commonwealth of Australia could dictate terms. After all, why should the Commonwealth of Australia dictate terms of employment conditions on a State workplace when industrial strife may never eventuate. Some trades may never have any industrial strife yet somehow the Commonwealth of Australia deems it justified to nevertheless dictate its conditions, despite being prevented to legislate in regard of religion. Any legislation by the Commonwealth of Australia as to dictate public holidays itself is unconstitutional as it interferes with the religious or non-religious rights of people. After all, different religions have different religious practices and different holy days. Then how could the Commonwealth of Australia dictate that certain public holidays are to be accepted in Australian Workers Agreements (AWA) as this itself is to force a religious practice of Christians upon non-Christians of whatever religion or non-religion they might be. As the Framers of the Constitution made clear;
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a p358 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Again; For instance, our factory laws are left to the state.
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Therefore, whatever the High Court of Australia judges may seek to fabricate out of the corporations powers the clear message from the Framers of the Constitution is that; For instance, our factory laws are left to the state.. It cannot therefore be argued that despite this somehow the corporations legislative powers in subsection 51(xx) could nevertheless circumvent this denial of power. As set out elsewhere in this document, to use this absurd kind of reasoning then all there was needed was to have a simple Constitution that provided that anything relating to money is within the legislative powers of the Commonwealth of Australia (see subsection 51(xii) and it would have saved all the delegates having to fight about every word used in the Constitution. The usage of factory laws indicates that the ordinary worker would be under State legislative power, not just in factories but also employees in ordinary stores, such as shop floor staff, cashiers, etc.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-They do not require to get authority from home, for this reason: That the local Constitutions empower the colonies separately to make laws for the peace, order, and good government of the community, and that is without restriction, except such small restrictions as are imposed by the Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their own territory. The position with regard to this Constitution is that it has no legislative power, except that which is actually given to it in express terms or which is necessary or incidental to a power given. The result is that you might pass a clause giving judicial power to a court, but you cannot by the passage of that provision make the conferring of a right of action upon a subject something necessary or incidental to the exercise of that power, because jurisdiction simply means power to determine cases where a right of action exists. It certainly does not mean giving the right of action simply where jurisdiction is given. That is the starting point of difference in the argument between honorable members who have spoken and myself. Where there is a jurisdiction given, that is simply the right to try cases where there is shown a right of action.
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The statement; They do not require to get authority from home refers to the British Parliament. I accept that if workers end up in a dispute and it goes beyond borders then the Commonwealth of Australia may invoke its powers to seek to deal with such a dispute. However, unless there is such kind of dispute there is no legislative power. As such, the fact that there might be an industrial dispute in one kind of business does not mean that then the Commonwealth of Australia can legislate for other kind of businesses that have no part in the dispute, as they may have in one State certain grievances and in another State different grievances and as such even then there is no industrial dispute beyond the borders of one State, as it must be one kind of dispute beyond the borders of one state. The WorkChoices legislation (as it is known) clearly is not addressing any industrial relations incident. It directs itself to anything, regardless that the
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employer may not operate intrastate but is merely locally based. As set out below also, despite the powers of subsection 51(i) it is and remains limited to what is affecting trade and commerce and it cannot be used internally to override State legislation, as it was intended that State internal trade and commerce remains to be outside the reach of the Commonwealth of Australia. Likewise so with industrial relations. The High Court of Australia is constitutionally bound to protect the constitutional set upon as provided for in the Constitution and must take notice of anyone who may seek directly or indirectly undermine the constitutional fabric of separate powers and policies. Also, as the Framers of the Constitution made clear it is not just that workers with one company are in dispute in different States It also must be kept in mind that the Framers of the Constitution specifically stated that the State Courts could use NULLIFICATION where Commonwealth law was deemed to be undesirable to be enforced. To use Commonwealth Courts to enforce Commonwealth law would be contrary to the constitutional division set out in the constitution and would deny the States to protect their citizens, as the Framers of the Constitution intended it could do. While there can be industrial relations differences, it also can be that there is a contractual issue at steak with or without industrial differences, and then the Courts are the appropriate way to deal with matters. If for example a worker has been underpaid then this is not an industrial issue but a contractual issue that should be assigned to the courts of law, as like any other debt. After all, a person may no longer remain employed and still maintain the same grievances to being owned monies by the former employer, and this would hardly then be an industrial dispute but a contractual dispute which falls within the ambit of the State Courts. If however contracts were to be based upon federal law then it might deny any State Court to entertain a breach of contract because it involves a federal matter and then the Federal Courts could be clogged by thousands of cases. It would therefore, for this also, be very unwise to interfere with what is traditionally and constitutionally deemed to be a State legislative power. The Court also ought to have taken notice of the comments made by various Ministers, and indeed John Howard that he prefer a unification, as this underlines that his motive may be to turn the Federation into a confederation.
Hansard 10-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. ISAACS.-Well, but I am saying that it must not be taken as a standard. Those who framed the Bill of 1891 were themselves appointed by the Legislatures, and naturally they had a strong penchant for following the same principle in the construction of the Senate. And they took, in that respect, the American Constitution as their guide. Now, we know perfectly well that even in 1891 that would not have been tolerated in Victoria, and, I believe, not in New South Wales either. When the Bill was brought up in the Parliament of Victoria, reference to our debates will show that that would not have been tolerated even at that date. And Mr. ISAACS.-When we consider that, we must make some allowance for the political views of the people who have to vote upon this Bill. I hope that that will be remembered at the last, but I fear that if the Constitution is maintained in its present form the people to whom we have to take the measure will turn to us and will say-"We have heard many protestations of your desire to trust the people. We have heard you say time after time that the will of the people must govern. " Again;
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We have heard many protestations of your desire to trust the people. We have heard you say time after time that the will of the people must govern." 50 Hence, the judgment of His Honour CALLINAN J must be considered very much that where the people have VETOED a question put to them in a REFERENDUM then this VETO must be considered as a refusal to allow for such powers. As such, regardless if the joint judgment argues that it was all along in the provisions of subsection 51(xx) then it must be deemed that if this purported power was there all along, something I totally reject, then the VETO so often cast can
but only indicate that the people rejected such powers to be granted to the Commonwealth of Australia and if therefore it was deemed that the power all along existed but the judges in the past, so to say, were blind to this, then it must be taken that there is no such powers anymore existing. It does however, in my view, not show much sense let alone legal sense, that the High Court of Australia in its joint judgment argues about the existence of the power in subsection 51(xx) where it totally neglected to consider relevant comments recorded in the Hansard regarding the Constitution Convention Debates such as;
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and overriding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Again; For instance, our factory laws are left to the state.
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How on earth could factory laws remain under State legislative powers if the Commonwealth of Australia overrules it with its so called WorkChoices legislation that prevents the state to apply its factory laws as it was able to do previously? The tone of the statement by the Delegates to the Constitution Convention Debates were either for total absorption of industrial relations powers by the Commonwealth or against it and limiting it to industrial disputes beyond the borders of any State. It cannot be then that the Framers of the Constitution having fought this battle to save State legislative powers then would totally ignore these rights where it comes to subsection 51(xx). In my view it is nothing short then an idiotic assumption to take it that subsection 51(xx) is not limited to other provisions in the Constitution as clearly this document indicates the Framers of the Constitution made clear that the Constitution had to be in totality, and indeed subsections were subject to other subsections. The High Court of Australia is not to play to be some magician, that can somehow elude the people with tricks to make belief something that wasnt, like it did with the Australia Act 1986 claiming some progressive independence, where it lacked the legal facts to make an appropriate legal determination about this. The High Court of Australia stepped outside its jurisdiction when it assumes matters to be facts where it is no more but a LEGAL FICTION. Indeed, the Framers of the Constitution did indicate that a local Court could easily be swayed by assumptions where as the Privy Council being remote would make a decision upon the LEGAL FACTS of the case and not swayed by personal bias one way or another.
QUOTE JUDGMENT CALLINAN J PART III. RELEVANT CONSTITUTIONAL AND POLITICAL HISTORY [681]-[735] Div 1: Early industrial relations tribunals [691]-[706] Div 2: Failed attempts to gain power [707]-[735] (a) The Constitution Alteration (Legislative Powers) Bill 1910 (Cth) for a referendum [709]-[715] (b) The Constitution Alteration (Corporations) Bill 1912 (Cth) for a referendum and the Constitution Alteration (Industrial Matters Bill 1912 (Cth) for a referendum [716]-[723] p361 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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(c) The Constitution Alteration (Industry and Commerce) Bill 1926 (Cth) for a referendum [724]-[727] (d) The Constitution Alteration (Industrial Employment) Bill 1946 (Cth) for a referendum [728]-[735]
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END QUOTE JUDGMENT CALLINAN J QUOTE JUDGMENT CALLINAN J 706 Enough appears to demonstrate that the founders never intended the Constitution to confer any intrastate industrial power upon the Commonwealth despite that some of the delegates might have wished it otherwise. The contrary sentiment was too strong. Subsequent legislators well understood that constitutionally too therefore they could not do so. I am not prepared to ignore that sentiment or the expression of it which s 51(xxxv) manifests. What also is apparent is that none of the lawyers, politicians and judges to whom I have referred even remotely contemplated intervention by the Commonwealth into industrial affairs, other than by enactments under s 51(xxxv). The whole tenor of the Convention Debates about industrial affairs was that they could be divided into two categories only, intrastate and interstate. No one suggested that the debate, so far as corporations were concerned, was an arid one, because the industrial affairs of these were already within the Commonwealth's grasp under the corporations power. END QUOTE JUDGMENT CALLINAN J
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If corporation powers were possible to be used to any extend then basically the Commonwealth of Australia can use its corporation powers to re-organise its working. After all, by way of taxation provisions it has pursued that every business shall have a ACN (Australian Company Number) or ABN (Australian Business Number) number and this includes the various State Department and even the Courts. It would enable the Commonwealth of Australia to circumvent the constitutional separation between state legislative powers and commonwealth legislative powers as the Commonwealth of Australia then could dictate State employees what days they can or cannot work. If then there is an election to be held the Commonwealth of Australia could simply dictate that no work is permitted on Saturday and this then will prevent any State election to be held.
Hansard 17-9-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The Hon. E. BARTON: I will concede that state rights was the expression that my right hon. friend used. I used the expression "state interests" because I can see that what is at the root of this discussion is not merely state rights, but also state interests.
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Hansard 3-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sub-clause 13. Banking, the incorporation of banks, and the issue of paper money.
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Colonel SMITH: I should like to ask the hon. member, Sir Samuel Griffith, if the word "banking" covers the possibility of establishing a bank for the commonwealth? Sir SAMUEL GRIFFITH: I should think not!
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What should be understood is that Section 51 is providing legislative powers to regulate not to create. It would be against the State interest if for example the Commonwealth of Australia were to commence to set up trading companies in opposition of the States and then use its exclusion of land taxes as a way to compete against a State based company. Simply no kind of competition is permitted within the structure of the Constitution as the federation was not created for this. It was created to provide for a body to represent all States (formally Colonies) for the same issues provided for in the Constitution and in regard of those granted legislative powers was external affairs provided, and no more. Before reading further it is advised first to read or have read; Chapter 007B for the peace, order, and good government
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Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. CARRUTHERS.Now, any man, especially an able member of the bar like-my honorable friend, ought to know that the worst tribunal you could have would be a tribunal that would decide, not on the sworn testimony submitted to the court, but on knowledge of the case, and in regard to the case and its surroundings, in the minds of the Judges-evidence of a character which cannot be shaken by cross-examination-evidence which is not known to the parties interested in the case at all. I venture to say that more mischief is done by cases being decided by some twist or turn in the minds of Judges than by any judicial interpretation of the evidence submitted to the court. Now, my great objection to establishing the final Court of Appeal in Australasia is because there is existing in the minds of the Judges that unconscious bias.
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And this is what the High Court of Australia is currently doing time and again.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HOLDER (South Australia).We have deliberately decided previously that the Constitution should only be amended by direct appeal to the electors, in which the vote shall be counted in two ways. I do not propose to alter that provision in the slightest degree. We have provided that measures altering the Constitution shall only come into force after they have been carried by absolute majorities of both Houses. I include the same provision in this clause. Before a matter can be sent to the referendum, both Houses must by absolute majorities agree thereto. And Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HOLDER (South Australia).I admit freely that as the Constitution is a deed of partnership, it is absolutely necessary to have the High Court to interpret it, and to see that the various co-partners keep in all that they do within the four comers of the deed to which they have agreed. Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power. Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me. But the question for us to consider is whether a court like the Federal High Court or the Privy Council would ever come to such a conclusion. One would think it highly improbable. The real question that may arise under this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power. If the amendment of the honorable member were adopted, the clause would read:22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p363
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A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance. Mr. ISAACS.-Would that prevent the Commonwealth from insisting upon Sunday being kept as a day of rest? Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or should not remains. The only difficulty I have upon the point is this: I do not anticipate any trouble from the want of a prohibition upon the states forbidding them from dealing with religious questions, but we must always [start page 662] recollect that humanity has a habit of throwing back to its old practices. Since a couple of hundred years ago we have been tolerably free from sumptuary laws. But there is in many quarters a great disposition to take to these laws again, and we may before many years have passed be overwhelmed with them. Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DOBSON (Tasmania).-It is quite evident that the Convention have had a good dinner; but I do not think that we can very well frame a Constitution on after-dinner speeches. I regret the numerous occasions on which I have had to differ from the Right Hon. the Premier of New South Wales, but I have now, with the utmost deference, to differ from him again, because I think he has used an extremely good argument why this clause should be engrafted on the [start page 1119] Constitution. He tells you to leave it to brotherhood and generosity, and yet he absolutely says-"Supposing the time should come when any state wants financial assistance, we can get the Constitution amended." On the one hand, generosity, and on the other hand, a state has to wait for a year, or possibly more-during which time it may stop payment-before it can get the Constitution amended. My right honorable friend must see that if the Constitution is to be amended, it is not a question of generosity; it will be a question of law , and, as the right honorable member has absolutely foretold the circumstances under which the Constitution will have to be amended in this respect, I ask him to be consistent and to put this into the Constitution now. It cannot do any harm.
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If the States however simply reject this kind of funding and insist the surplus is returned to them, then they can fund their own projects without loosing any legislative powers, besides that no State can give away legislative powers without approval of the electors of that State. But that is another issue.
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Mr. WISE.-Yes. We have been striving all through to erect an independent Commonwealth with certain clearly-defined subjects of legislation, and to provide very strictly that the rights of a state should not be impinged upon by the undue exercise of the powers of the Federal Parliament . In order to prevent that, we have constituted a Supreme Court to interpret the laws of the Parliament. But the honorable member now comes forward and says that the Parliament is to make the laws, and that the Ministers of the day are to interpret them. The Parliament may make what laws it pleases. It may make laws altogether outside the subject of the matters referred to it by clause 52, but unless in each state there is a majority sufficiently strong to sway the Ministers in power for the time being, those laws will not be declared to be ultra vires. Mr. TRENWITH.-If there is a majority strong enough in any one state that will be sufficient.
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Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p364
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this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it. Not that I believe that it will be carried, but I think it is an echo of a widespread misapprehension which prevails outside as to the duties and functions of the Supreme Court. It very often seems hard to a layman that that which has been enacted by Parliament should be declared to be illegal by a Supreme Court when the statute is called into question during litigation between two citizens. It is hard, but like everything else in politics, it is a choice of evils. The question is: Whether it would not be of much greater disadvantage to the whole community to bring in the Supreme Court as an interpreter of the Constitution before any precise case was taken before it, than it is to leave the individual to suffer the hardship of finding that the Act upon which he relied was really invalid? I will not use my own language in explaining the position, but, to have it put upon record, I should like to quote a passage which occurs on pages 154 and 155 of Dicey's Law of the Constitution. After pointing out that the American Supreme Court exists to interpret the Constitution, and to see that effect is given to its provisions, the writer goes on to say thatThe power, moreover, of the courts, which maintains the Articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and a regularity which has astonished and perplexed continental critics. The explanation is that the Judges of the United States control the action of the Constitution, but they perform merely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The court never directly pronounces any opinion whatever upon an Act of Congress. [start page 1687] What the court does do is simply to determine A. is or is not entitled to recover judgment against X.; but in determining that case the court may decide that any Act of Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress. If any one thinks this is a distinction without a difference he shows some ignorance of politics, and does not understand how much the authority of a court is increased by confining its action to purely judicial business. In a book prepared by you, sir, entitled A Manual of Reference for the use of Members of the National Australasian Convention, to which frequent reference has been made, the matter is further dealt with. You say, at page 126, in words that I would like to adopt as part of my argument:No doubt the power given is very great, but it is exercised in a manner and by a body which affords the least possible chance of friction and quarrels between the central and the provincial governments. A veto by the central authority has to be exercised at a time when the public attention of the provincial electors is directed to the matter; at a time when, perhaps, party spirit runs high, when angry passions pervade both factions, and when the subject-matter is invested with an importance which is not intrinsic, whereas a declaration by a court that the statute is invalid is withdrawn from the sphere of politics. Each individual and each state looks upon it that such declaration is given only in pursuance of the Constitution. Public attention is probably directed to other matters, and the question has, in many cases, shrunk into its native insignificance; and "it is to the interest of every man who wishes the Federal Constitution to be observed that the judgments of the federal tribunals should be respected, and they take it that the courts are the protectors of the federal compact, and that the federal compact is, in the long run, the guarantee of the rights of the separate state." If the proposal of the honorable member (Mr. Gordon) was carried into effect-though of that, I think, there is not the slightest chance-it would follow that any person who was aggrieved by an unconstitutional enactment would have to persuade the Attorney-General of the state or of the Commonwealth, as the case might be, to in some way set the law in motion to ascertain the legality of the enactment, If the enactment was one which affected a matter exciting strong party feeling, the result would be that the abstract question of its validity would have to be argued before the court at a time when public feeling was excited, although it would be of the utmost importance that the decision of the court should be entirely free from all suspicion of political bias. Then, too, the enactment might be valid in parts and invalid in other parts, or it might be impossible to interpret it in the abstract. It is impossible to foresee the bearing of a statute upon all possible cases, and it is only when a case comes for determination before a court that the court is able to say that in that particular case the statute does or does not afford protection to the citizen who has relied upon it. The honorable member's proposal would remove at once the greatest of all safeguards to the impartiality and usefulness of the Federal Court, by taking away from it its right to deal 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p365
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with matters which are brought, as lawyers term it, to a distinct issue, and with precise and definite points, in regard to which the full bearing of every word of the judgment could be appreciated? Instead of the court being able to determine the legality of an enactment in its bearing upon any particular case, there would be considerations introduced which were utterly foreign to the atmosphere of the tribunal, and that would seriously impair the public confidence in a court which, with us, as in America, will, I believe, prove to be the ultimate protector of the liberties of the people. Then, too, the amendment is in its form so complicated that its practical working will be impossible. The honorable member said truly that the Attorney-General constantly intervenes now. But he intervenes at the expense of the individual. The individual presents his case, and gives a guarantee for costs. Under this proposal all that would happen would be that the individual who wanted to assert [start page 1688] his right would have a barrier placed between him and the obtaining of justice. He would have to satisfy the Attorney-General for the time being that he would be able to pay the costs of any action, and he would have to bring sufficient political pressure to bear upon that officer to get him to move in the case, and finally he would be left to contest the matter in his own interests and in his own name. The result would be that the rights and liberties of every citizen in the community would be placed at the mercy of a chance parliamentary majority. Mr. GORDON.-That is the position now-the rights and liberties of every individual are at the mercy of a parliamentary majority. Mr. WISE.-The honorable member is now speaking of rights in respect to legislation. If the Parliament of South Australia were to pass a law contravening the Merchant Shipping Act
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Mr. GORDON.-I am not speaking of Imperial legislation. Mr. WISE.-Suppose the Parliament of South Australia wanted to get rid of the Plimsoll Mark Act-even though there were a majority it would be invalid, but according to the honorable member, when, we have here a case exactly analogous, if the Constitution limits the power of the state, and enacts that certain powers shall belong exclusively to the Commonwealth Parliament, and that if the state deals with them it invades the authority of the Commonwealth Parliament, the individual is to have no rights unless he can persuade the Government of the day to take up his case. It is in the interests of the poorer and uninfluential classes of the community, it is. in the interests of the minority, that this amendment should be rejected, because it places an obstacle in the way of obtaining that justice which ought to be free to every individual in the community. Mr. HIGGINS (Victoria).-I should like to add my protest against this new clause. I am bound to say something, because the honorable member (Mr. Gordon) says it is only the conservative and timid lawyers who would venture to oppose this proposal. Mr. GORDON.-I did not say that. I said as a rule the legal profession is, according to Herbert Spencer, a timid and conservative class.
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Mr. HIGGINS.-That may be so, and if the honorable member says he did not make that statement it is all right. Anyhow, I thought he said that only conservative and timid lawyers would oppose this clause. There is no doubt the intention of the honorable member is excellent. He wants to diminish litigation. If he can show that this will diminish litigation to any material extent, and, at the same time, will not involve us in a great many dangers to our liberties, I will go with him, but he has not shown anything of the sort. As Mr. Wise has shown, it will throw an unpopular minority into the power of a chance Ministry of the day. We must see today that the rights of individuals, even unpopular individuals, are preserved in the Constitution. I think Sir John Forrest said that I personally had not got sufficient respect for the rights of individuals.
His Honour CALLINAN J; 45

QUOTE 775 It may equally perhaps be argued that despite their faults, federations are the least undemocratic of all forms of government. The framers of the Constitution and the people who endorsed it by a popular vote could not have been unaware of the problems, and the frustrations, to which the division of powers in a federation may give rise[955]. Nor would they have been ignorant of the aversion that those who exercise power generally have to any sharing of it. The legislation which is in question here, if valid, would subvert the Constitution and the delicate distribution or balancing of powers which it contemplates. To say that the powers are distributed, or that they are carefully balanced, is not to suggest that they ever were, or are now, in a state of static equilibrium. In both specific and general areas, the powers of the Commonwealth obviously tend to be much larger than, or are exclusive of, those of the States. There is nothing static about the defence power (s 51(vi)) in times of national peril, or at all times, the taxation power (s 51(ii)), as to which 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p366
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governments and parliaments consistently exercise much ingenuity, or, as these reasons elsewhere note, the intellectual property power (s 51(xviii)), the immigration and emigration power (s 51xxvii)), or, in particular, the grants power (s 96) which legitimately all allow to the Commonwealth much room to move.
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776 The "generality doctrine" cannot be used to expand the powers of the Commonwealth in disregard of the distribution of constitutional power for which the Constitution provides, and which careful reading of it as a whole requires. The generality doctrine should only be invoked and applied to provisions which by their terms, and in the light of other language in the Constitution, can be seen to require an expansive meaning. END QUOTE Again; in particular, the grants power (s 96) which legitimately all allow to the Commonwealth much room to move
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The High Court of Australia in the past seemed to me to argue that the Commonwealth of Australia could in fact provide funding within section 96 even if otherwise unconstitutional, which I view is utter and sheer nonsense, and lacks any competent explanation as the Framers of the constitution, albeit rejecting at the time what is now s96 made clear that such provision would not allow the Commonwealth of Australia, if accepted to make demands contrary to constitutional provisions. Again;
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate provisions for the amendment of the Constitution? Why should we not say that the Constitution may be amended in any way that the Ministries of the several colonies may unanimously agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to occupy a few minutes in discussing it.
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There are many other likewise statements on record that the Commonwealth of Australia could only act within the provisions of the Constitution. As I have set out in previous published books in the INSPECTOR-RIKATI book series that section 51 is a power granted to legislate and not to create. Hence, section 69 provides for the transfer of Department from States (as the Colonies became) to the Commonwealth of Australia. Section 69 does not allow for the selling of those entities and it is therefore and remains unconstitutional to have Telstra sold off. Indeed my published books already extensively canvassed those issue and the fact that the framers of the Constitution opposed to follow the USA way of having telecommunications in hands of private operators and also that they went as far as to make clear that the Minister was responsible even to the management of vehicles, etc.
Hansard 1-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON: I am not complaining of anything that South Australia has done in this way. But if a person sending a long distance message expects to get an answer, then with respect either to the message or to the answer, he may be in a very queer position unless the whole responsibility rests with the Commonwealth of keeping the whole system as clear as possible. If the colony is to retain its own particular postal and telegraphic service, and the Commonwealth to be in charge of external questions with regard to posts, telegraphs, and so on, then we may have this peculiar condition of things: that there may be cause of complaint with respect to the external services under the charge of the Commonwealth, or with respect to the internal services which are sub-divided among six States, so that there may be a responsibility divided among as many as three different divisions. It would be preferable to make the Commonwealth responsible for the whole service, for by that means you would much more clearly conserve the interests of every member of the Commonwealth.
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Mr. CARRUTHERS: The hon. member has pointed out a very good argument with regard to the telegraphic communication, but it fails entirely so far as his attitude to this Bill is concerned when applied to postal communication. He is quite prepared to let the postal communication be carried on by divided responsibility. We have not got the telegraph wires to carry the mails, but we have railways under State control to carry them; so that if he sees no objection to that portion of the State business which carries postal matter being under divided control, he can surely have very little objection to the telegraph wires being under State control. I should have been in favor of getting this sub-section into the Bill if the Convention had been agreeable to take control of what I consider to be analogous to our postal and telegraphic communication-I mean our railway communication. It is just as important that the Federal Government shall have the care and management of the vehicles which carry human beings and their goods as that it should have the care and [start page 769] management of the vehicles or ways which carry letters and telegrams. But I see very little chance of carrying a proposal of that kind, and therefore my vote is to be given with a view to preserving the consistency of this Bill having regard to other matters. I do think that there is a great danger in providing for the Federal Constitution to take over too many matters at the onset. I fear that there is a great danger that we shall over-weight Federation at the onset, and we shall have people voting against the Constitution because as regards the particular matters they deem important we are giving up too much of the right to govern themselves. I do say this: why should the Federal Government interfere in local postal matters? What interest would the national Government have in the carrying of letters from Adelaide to Glenelg, or from Adelaide to Hindmarsh, or from one street in Adelaide to another street in Adelaide? These are matters of purely local concern, and you cannot dignify them to a position of national importance. Moreover, I fear that by overloading Federation with these minor and local concerns, you bring in that which has tended so much to degrade public life in America, log-rolling and corruption. If you give over the telegraph and postal business you thereby hand to the custody of the Federal Government all the local appointments-the appointing of the postmasters, clerks, and other officers, who do not do national, but the purest local business; and you at once raise up a large army of civil servants, the influence of which we want to dissociate from our national life. If possible, we should elevate the position of our Federal Legislature above subjects of purely local concern, and what need is there to thrust these matters into a great national undertaking? The hon. member's proposal allows us to go just as far as we ought to go in this business. When this becomes a matter of national concern, let the national Government do the work, but the Federation should not do things which are best done locally. What cannot be done best locally should be handed over to this common executive. It is proposed to have an Inter-State Commission, which will deal with those matters where our railways, or our public arteries-our roads, or rivers-come into conflict. The idea is that the rival interests of one State against another should be adjusted and controlled by such a Commission. It is very easy to let this matter of posts and telegraphs outside the boundaries be regulated by this Commission. They need not take active management, but they could provide regulations which would have the force and effect of federal laws governing the various bodies. I do hope that in this matter there will be a division taken, so that those who are inclined to overweight the Federation with minor matters may vote for it, and those who are inclined to leave to the Federation clearly-defined national interests, may give their votes in that direction. I hope a division will be taken which will test this and many other matters. I have given notice of similar amendments, but I shall not persevere with them if Mr. Holder's amendment is lost. Mr. DEAKIN: As I understand the remarks of my hon. friend Mr. Carruthers, he admits the wisdom of transferring the telegraph service to the Federal Government, but contests the wisdom of handing over the post offices. Do I understand the hon. member's position correctly?
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Mr. CARRUTHERS: No. My hon. friend Mr. Barton pointed out that with regard to telegraphs it was, not wise to let these lines be under the control of the various States, and I answered him by pointing out that with regard to postal business he was prepared to let the railways which carried the mails be under the control of the various States. Mr. DEAKIN: Within or without State boundaries. How can it be said that South Australia is more competent to administer the postal affairs of its Northern Territory than they would be administered from a central capital? Or how can it be said that the European mails for the extreme west country of New South Wales could not be better dealt with by the use of railways and means of transport through South Australia? Looking at the postal and telegraphic business of the continent of Australia from a purely business aspect, from the practical side of affairs, it appears to me that we are more likely to have satisfactory and complete communication if it be regarded as one whole and worked from the most convenient centres, without regard to State limitations. I say in answer to Mr. Holder that his illustration in regard to Western Australia proves nothing if we may rely upon American experience. If there has been one great federal success it has been the American post office, and if there is one regret in their politics it is that the American telegraphic service is not also in the hands of the Government. The 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p368
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telegraphic service is in private hands, and the regret is widespread. I can say, from a short experience of some of the least settled and most distant territories of the West of the United States, that the postal communication there is much more complete than I have been accustomed to find in outlying districts of these colonies under their present State management. The National Government at Washington, 3,000 miles away, separated by a whole continent, has proved itself more liberal in its treatment of the people of the Far West than have the Governments of Australia proved themselves in regard to our back block settlements. In America the post office has been a great administrative, financial, and popular success; and any man who would propose to-day to hand that service over to other than to State administration would find that his proposition was short-lived. We may have greater difficulties to surmount than they have, but there is no reason why the Commonwealth of Australia should not also achieve a conspicuous success in this direction. The arguments used by my hon. friend Mr. Barton with regard to the difficulties arising from a divided control of the telegraph wires appear to be conclusive. It would be almost impossible to make arrangements as perfect and as economical for either postal or telegraphic services [start page 771] within Australia if you retain State boundaries, and it will certainly be more difficult to make arrangements for the extra-Australian services if you are called upon to consider State claims and demands, instead of only considering the real practical wants of the localities immediately concerned. It appears to me a desirable thing as a matter of practical business to transfer both of the services to which I have alluded to the Federal Government. We shall not place too great a burden on the federal authority, and the whole population will be better served than they now are or than remote districts can be by State authority. Placing the means of communication in the hands of the Federal Government will probably permit of that universal reduction of postage and cable rates which is one of the first demands of the commercial interest throughout Australia. The experience of our own colony is that the present cable rates are almost prohibitive. but by a satisfactory combination of the cable and postal services, with unity of administration, we shall be able to secure an immediate reduction in those charges, as well as in postal rates, and give the people of Australia better services than those they now possess. Sir PHILIP FYSH: Every postal conference that has been held for years past has tendered a report suggesting that the postal and telegraphic services should be federated. Year by year conferences are necessary in order to keep ourselves in touch with what is going on and to keep pace with development. The clause of the 1891 Bill, transferring the control of post and telegraph offices, was largely for the reason that the losses amounting to 200,000 per annum, incurred by some States were for the benefit of the whole, and therefore should be of federal concern. That state of accounts has since altered, and South Australia, in 1891 the chief loser, and Tasmania, also an important loser, have both since secured profit in these departments, but much services as posts and telegraphs have by means of the postal conferences of postmasters annually, and by their reports, sought to establish uniformity, and tended strongly to support this federal purpose. The cost of cable subsidies has already been divided intercolonially, and the completion of federal services will tend to support the "United Australia" purpose of the people. Nothing has a greater tendency to perfect your union than one postage stamp for Australasia. Uniform postal rate is also desirable; whereas in Tasmania, in a given radius from the General Post Office, the rate is one penny, in South Australia and Victoria twopence is uniform, whether across the street or to the end of their territorial limit. Mr. WISE: I have the concurrence of the gentleman in charge of the Bill for doing this. I propose to omit all the words after the word "Postal," and to make the clause read as follows: Postal, telegraph, telephone, and other like services within and beyond the Commonwealth.
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If I move that it will be open to the hon. gentleman moving the present amendment to strike out the words "within and." It is necessary as a matter of drafting, to carry out this to meet the views of Mr. Holder, who moved the present amendment. Unless there are express words implying that this is outside the Commonwealth they will not know its limits. If we want the Commonwealth to have power to deal with cables, there must be express power to enable them to go beyond the Commonwealth. Mr. HIGGINS: What are you intending to cover by the words "other like services?" Do you mean the railways? Mr. WISE: There might be a long distance telephone or phonograph. Mr. Peacock's laugh might then be heard in London. (Laughter.) Sir GEORGE TURNER: We have his laugh here. Do not put him further on.
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Mr. WISE: If Mr. Holder moves to omit the words "within and" it will come to the same thing. I am sure these words are necessary to enable Mr. Holder to carry out his object. p369 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
Mr. SYMON: It is a little complicating the present issue to introduce telephones. Some of us would be rather caught by the insertion of these words in deciding upon the amendment by Mr. Holder. The introduction of telephones raises a distinct issue. It would be better to put them separately.
Dr. COCKBURN: On behalf of my hon. colleague Mr. Holder, I will ask leave to withdraw this amendment, so long as it is not intended in any way to obstruct it. Amendment temporarily withdrawn. Mr. WISE: Then I move: To insert after "telegraphic," "telephonic and other like services."
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I will not discuss this. Telephones are worked with telegraphs in every colony, and it would be a great inconvenience to separate them. Mr. SYMON: I should like to hear the views of Dr. Cockburn on this question, as some of us are not familiar enough with the subject to say whether there can be a detachment of the services. Mr. DEAKIN: They must go together. Mr. WISE: They use the same wires. Dr. COCKBURN: I do not think it is possible to separate them.
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Amendment agreed to. Mr. WISE: I now move to add to the sub-section: Within and beyond the Commonwealth. Sir GEORGE TURNER: What is the object? Would it not apply to many other powers that we are to give.
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Mr. SYMON: I think these words are scarcely required. There could be nothing more comprehensive than the words we have just adopted. The CHAIRMAN: I will put Mr. Holder's amendment first. Mr. REID: This attempt to separate the post and telegraph services will, I think, be disastrous. It is impossible to work these two services by, two different departments. How is it possible to put on the Commonwealth the necessity of having a department to deal with one part only of the business. [start page 774] Instead of simplifying the post and telegraph services of the colonies it will only complicate them. One of the strongest reasons for including the post and telegraph services within the Commonwealth is that, instead of having seven Ministerial Post and Telegraph Departments and seven staffs for the Australian colonies, the whole business can be managed under one federal head. If there is an argument in favor of federalising any service, it applies more strongly to this than to any other I can think of. There are certain side complications which will entirely disappear under federal administration. When one speaks of the colony of New South Wales having a loss on the postal service, and another colony having a gain, that simply arises from separate administrations and separate laws; laws under which, in New South Wales, we allow newspapers to go free, and laws under which in other colonies they do not; laws under which, in New South Wales, we allow one penny stamp over a fifteen - mile radius in all populous localities throughout the colony, and laws in other colonies under which they charge twopence to send a letter from one side of the street to another. Under a federal administration the charges will be regulated on a uniform basis, and all these inequalities will disappear. Why are we putting in various clauses to prevent unequal intercourse between the colonies in matters of trade if we do not put in these clauses which will prevent similar evils in connection with the posts and telegraphs of Australia? You could carry on most offensive State wars with these post and telegraph rates. It is essentially a matter of common concern which could be more economically administered by the Commonwealth. Although I always attach the greatest importance to the views of Mr. Carruthers, and we are generally found acting together, I must say on this occasion I feel it would be impossible to carry out the ocean transit of mails with one department, and local affairs with another. From my point of view there should be only one Post and Telegraph
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Department for Australia, only one executive head for Australia, and I believe that under that system the interests of the people of Australia will be better and more economically served.
Recognition must be given to His Honour CALLINAN J that His Honour also referred to this subsection 51(v) and seemed to me to express the intentions of the Framers of the Constitution in that they did have a foresight in the future development of telephony, etc.
QUOTE JUDGMENT CALLINAN J 769 I elsewhere explain why there are other strong reasons for the construction of s 51(xviii) of the Constitution which I think correct. At this point it is sufficient to say that the submission of the Australian Workers' Union is also partly correct: "[I]t is one thing to say that terms such as 'patents of inventions and designs', 'postal, telegraphic, telephonic, and other like services', 'corporations', or 'marriage' should be construed with all the generality that their words admit, lest the Constitution become some sort of nineteenth century fossilized relic. It is quite another, however, to say that the most general connection between a head of power and a law will be deemed sufficient." The submission is correct in singling out some powers for an obviously more expansive operation than others. Patents and inventions are powers in point. So too is defence. In its terms, that is in text, placitum (v) dealing with "postal, telegraphic, telephonic, and other like services" is a very far-reaching power without any need for judicial addition to it. I am however unable to accept that the Constitution is in danger of becoming a fossilized relic of the nineteenth century. Intimations of that danger have accompanied and been falsified by every one of the many failed referenda conducted since federation, as well as, among other things, cooperation between the Commonwealth and the States when power is lacking but action truly necessary[945]. END QUOTE CALLINAN J
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The Framers of the Constitution time and again pointed out the desired not to have some inflexible constitution as that of the USA but desired to create one that was alive and living and could be amended by the people using Section 128 as to reflect their contemporary views. As such, it is not up to the High Court of Australia to interpret the Constitution with its own contemporary views but to interpret it within the confines of the Constitution that is as to the intentions of the Framers of the Constitution. If then the language used in the Constitution would not allow for the legislative powers the Commonwealth of Australia desired then it can always embark upon a section 128 referendum. The fact that so many referendums were lost if anything proves that the peoples power to VETO any grab for further legislative power must be recognised. It is not then for this High Court of Australia, as His Honour CALLINAN J so bravely sets out, to go against the tide of the wishes of the People and by this supplant their constitutional powers/rights with that of what is desired by the unelected judiciary. In particular where it is not uncommon that judges are political appointments as to seek to influence the Courts future decisions the Court cannot afford to appear to be bipartisan to the Federal government and totally disregard the application and recognition of the very people about whom it is about and so their CIVIL RIGHTS to enter in a contract as they desire and entitled to within the State jurisdiction. The powers provided to the Commonwealth of Australia was not for the purpose to interfere in the daily lives of every person but to deal with matters which could be federally justified. It is not an issue to the federation if a person makes a work contract (a civil contract) with employer and say upon this worker having commenced to work the business is sold and then the new owner incorporate the business and somehow the worker has his civil rights and his civil contract interfered with and so his future employment entitlements by some busybody federal government. It is the very issue of retaining the States identities that a person can decide where to reside. Some States have better weather conditions, but other states provide better facilities and/or better working conditions. It would therefore be absurd if for example a worker having commenced employment in a certain state under its State insurance provisions then find that without any changes made on his part the employer can manipulate working conditions by using corporation provisions to negatively influence the entitlements of the worker.
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One may then ask if anyone who does outsourced work for a corporation then also might be subject to the powers of the Commonwealth of Australia under the corporation laws. Anyone turning on a tap might be forced to comply with corporation laws that the Commonwealth of Australia might put in place as to how people using the water corporation facilities can use it and under what conditions. After all, if the Commonwealth of Australia would be able to set wages, terms and conditions then it could likewise do so in regard of anything else. Bus/tram/train companies could be forced to operate under Commonwealth law, regardless that they might operate only within a certain area of a large city. Indeed, His Honour CALLINAN J very much appeared to be extremely concerned about the unlimited powers that the Commonwealth of Australia could use via the corporation laws. The Commonwealth could in fact erode the entire State system. It could legislate that the Road Corporations of a State no longer issue license plates as only the Commonwealth would do so. It could use its corporation powers to abolish any State taxes. It could use its corporation powers to interfere totally (for so far it not already does) with education, health, etc. There simply would be no limit to it. While the Commonwealth of Australia has no constitutional powers over the Federal judiciary, I for one could see my way through it to use the corporation powers to run State Courts down the ground, so to say, as to manipulate the corporations powers to influence State Courts operations. In fact, it even could use the corporations power to interfere with the structure and conduct of the High Court of Australia, as while it might be created within Chapter III of the Constitution, once the High Court of Australia accept that the corporation power is unlimited then it neither can avail itself to being protected as the corporation powers, by its own judgment, is unlimited. It should be clear that the corporation powers were granted as was already provided for in regard of banking. If the corporation powers would allow the Commonwealth of Australia to interfere with every facet of life either directly or indirectly related to a corporation then why should not the same apply to banking one may ask. Then the Commonwealth of Australia could legislate to anyone who is using a bank. So what the Constitution does not allow legislation as to State banks operating within a State, the Commonwealth of Australia could simply use the provisions of (xii) currency, coinage, and legal tender, after all rather then merely having a power house covering about 85% of businesses, the commonwealth of Australia could dictate 100% of what every one does in the Federation by using this power to legislate what a person can or cant eat. What a person can or cannot smoke, drink, wear, etc. It could be used to dictate how much money any person is entitled to earn. After all, if you are going to give the liberty of power within Subsection 51(xx) then Subsection 51(xii) would be far more powerful. It is not bound by corporations registering as it has no bounds at all. Everything turns on money in the business world and so also in daily life for those who are retired and as such it is the perfect way to control the general population to the extreme in a tyrannical condition. This, is in my view the absolute absurdity that can be implemented as result of the joint judgment handed down. In this book, I will be entering in the constitutional validity of the Court itself, as this too becomes an issue as to ascertain if the judgments are constitutionally valid in the first place or not worth the paper it is written upon. Corporations require registration for RECOGNITION and not how they operate with their workers. Any person is entitled to his/her civil rights to enter into a contract to his/her desire and not being forced into some kind of contract that the Federal Government desires to dictate. Indeed, lacking legislative powers as to religious the Commonwealth of Australia (Parliament and/or Government) cannot dictate anything about religious public holidays one way or another and neither about penalty rates applicable to religious holidays. Again, a shame that none of the judges took any consideration as to the issue that employment of a worker entered into was on the basis of a State contract within the civil rights of a person
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within State laws where as corporations powers was dealing with registration of corporations legislative powers provided to the Commonwealth of Australia and nothing to do with civil rights contracts. Indeed, as the joint reasons pointed out; 5
QUOTE Such little debate about the corporations power as there was at the 1891 Convention focused upon whether that power should be extended, like the banking power, to the registration or incorporation of companies. Sir Samuel Griffith's response[141] was: "What is important ... is that there should be a uniform law for the recognition of corporations. Some states might require an elaborate form, the payment of heavy fees, and certain guarantees as to the stability of members, while another state might not think it worth its while to take so much trouble, having regard to its different circumstances. I think the states may be trusted to stipulate how they will incorporate companies, although we ought to have some general law in regard to their recognition." END QUOTE
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As this reveals, the concern then being addressed was very narrow. Again; is that there should be a uniform law for the recognition of corporations. With my extensive research in the Constitution Convention Debates this was all along my perception, that it was only dealing with registration (for the recognition of corporations) upon a uniform basis as to avoid different State conditions but nothing to do with attempting to interfere with the civil rights of a person to enter in a work contract with an employer. Also, the drafting committee would often deal with matters decided in smaller committees and as such not subject to major debates on record.
HANSARD 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON: I think that every dispute is local to the State in which it originates. Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made.
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Mr. SYMON: No doubt. There is another point I wish the hon. member to consider. You are not going to interfere with the laws of the States dealing with contracts. If the Federal Parliament deals with disputes it will be hampered by the varying laws relating to master and servant which may exist in the different colonies. If an industrial dispute in several colonies were treated as one it could not be dealt with as an ordinary dispute, but the laws of each separate State would have to be taken into consideration. Now that would be, I think-so it strikes my mind at present-a difficulty hard to be overcome. At any rate, what I am dealing with is rather the general proposition that is put in this amendment, not the language of it, but the general proposition, and if you are to give the Federal Parliament power to deal, as my honorable friend puts it, with industrial disputes -I will leave out the subsequent verbiage-I for one cannot see where the limit of its operation will come in. You give it a weapon which might be used according to the dominant majority in the Federal Parliament for the moment in a way we would not like. You are intensifying the possibilities of bitterness-that is to say, if they avail themselves of this power-without seeing the benefit that is likely to arise. I desire to emphasise the [start page 790] observation made by Mr. Deakin. It would be impossible to say at what time the overflow into the adjoining State begins and ends. If the Federal Parliament is to decideAnd
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Sir EDWARD BRADDON (Tasmania).This amendment does not hand over to the federal power the entire dealing with industrial disputes over the whole of the Commonwealth, but only over so much of the Commonwealth as may be affected by those disputes. It therefore imposes upon the various states the necessity for having courts of conciliation and arbitration to deal with the matters affecting their states only. That seems to me to be an admission of the principles principle which I think must be admitted in the present circumstances-that anything whatever in the nature of government or administration which can be better dealt with by a state than by the Commonwealth shall be left to the state. I claim Mr. Deakin's emphatic indorsement of that principle, and I claim his vote, because his vote if he goes with me will affirm the principle. It surely must be better for the employees that 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p373
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their disputes should be settled by courts which know all the circumstances, which understand the condition of things best, than that they should be settled by possibly a distant tribunal which is ignorant of the environment and particular conditions affecting any industry in any one of the states. We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states. Sir EDWARD BRADDON (Tasmania).We have heard to-day something about the fixing of a rate of wage by the federal authority. That would be an absolute impossibility in the different states.
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And Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place where the contract was made.
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HANSARD 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in saying that it took place under the next clause; but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if they had another motive.
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It must be clear that the motive of the IR WorkChoices legislation had a motive that in itself makes it invalid. The principle object is to rob the ordinary worker of their bargaining power to enter into a Contract based on State provisions. As such, it is not just to rob the States of their rightful legislative powers but more over is in particular to rob the people of their CIVIL RIGHTS. But that has been done before and so permitted ongoing by the very High Court of Australia that was created as to be a GUARDIAN OF THE CONSTITUTION. We can for example look at the issue of CITIZENSHIP.
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HANSARD 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-You give the Federal Parliament power to naturalize. Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the
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consent of the Imperial authority, has been carried into legislation by the various colonies, and, of course, we cannot do less for the Commonwealth than we have done for the colonies.
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This is not citizenship as exist in the USA or some other countries, as the Framers of the Constitution made clear they did not desire to follow the example of the USA and rather created their own system. We have the Australia Citizenship Act 1948, but I ask on what constitutional basis is this legislation enacted?
QUOTE JOINT JUDGMENT 54 Underlying all these arguments there was a theme, much discussed in the authorities on the corporations power, that there is a need to confine its operation because of its potential effect upon the (concurrent) legislative authority of the States. The Constitution distinguishes in s 107 and s 109 between legislative powers exclusively vested in the Parliament of the Commonwealth and inconsistency between federal and State laws made in exercise of concurrent powers. Section 107 does not vest exclusive powers in the State legislatures. It will be necessary also to return to that topic [17]. It is immediately useful to bear in mind what Windeyer J said in Victoria v The Commonwealth ("the Payroll Tax Case")[18]: p374 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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"The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were selfgoverning colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the federal government, has waxed; and that of the States has waned. END QUOTE JOINT JUDGMENT QUOTE JOINT JUDGMENT [18] (1971) 122 CLR 353 at 395-396. END QUOTE JOINT JUDGMENT
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Well, lets see what the Framers of the Constitution stated that was applicable, and that the Commonwealth of Australia is not a dominion is one of the issues they raised. It also means that the Westminster Act 1931 (UK) is ULTRA VIRES for so far it purports to deal with the Commonwealth of Australia as being a DOMINION in that it is seeking to use a backdoor manner to give the Commonwealth of Australia some DOMINION status which the constitution did not provide for. Indeed, neither did it provide for the Commonwealth of Australia to be able to increase its own powers by a request to the British parliament sidelining by this the States and/or Section 128 of the Constitution. As such for so far the Westminster Act 1931 referred to the Commonwealth of Australia it is and remains ULTRA VIRES and likewise so any request or purported request made by the Commonwealth of Australia, and so also the Australia Act 1986 (UK) and obviously also so the Australia Act (Cth). Likewise so the British National Act 1948 that purported that Australians are foreigners, as it was beyond the powers of the British Parliament to legislate as such as it was by this seeking to amend the Constitution by way of backdoor manner by robbing Australians of their constitutional right to be subjects of the British Crown.. Now consider this; In my 28 October 2002 correspondence, to Mr Justice Michael Kirby, I contested the validity of the Australian Act, and on 17 June 2003 His Honour in the MIMA case then made clear the Australian Act had no legal enforcement against the Constitution. Shaw v MIMA B99/2002 (17 June 2003) KIRBY J: I am afraid I have to tell you that is where you lost me because, as far as I am concerned, I do not see how the Australia Act 1986, an act either of the United Kingdom Parliament or of the Australian Parliament, has the slightest power to alter the Australian Constitution, that power belonging to the people as electors.
http://www.austlii.edu.au/au/other/hca/transcripts/2002/B99/1.html Hansard 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.Another guarantee of the preservation of the Constitution [start page 2471] until the electors themselves choose to change it, is contained in the provision that the interpretation of the Constitution by the High Court is to be final. Of course it will be argued that this Constitution will have been made by the Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the provisions of this Constitution, the principles which it embodies, and the details of enactment by which those principles are enforced, will all have been the work of Australians. I think it is right and fit that the highest court in Australia should be left as the guardian of the expressions of the people, and the sole body to determine finally what the people meant when they used those expressions. Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. MCMILLAN: I do not quite follow Mr. Isaacs in his logic. It seems to me it is a very serious matter to attempt to interfere with the whole machinery of the constitutional Government , 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p375
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Hansard 8-4-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) . I take it that one of the first principles of the Constitution is that we present it to the several colonies, not as a complete constitution, but as one which they can make complete; not as a constitution necessarily adapted to their needs and desires, but one which they can themselves adapt to those needs and desires.
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The Australia Act 1986 would alter a constitutional Parliament and a constitutional government into a Parliament that now is above the Constitution and it could merely repeal Section 71 and Section 128 together and there would then be no court to argue about if it is unconstitutional or not. As the Framers of the Constitution made clear there are embedded principles and the High Court of Australia cannot play Pontius Pilatus and seek to wash its hands of the matter where it has the responsibility to interpret the constitution as to the intentions of the Framers of the Constitution and not implant their own views, politically or not, into it.
QUOTE JUDGMENT CALLINAN J 712 Because of his prominent, indeed perhaps decisive role in the establishment of the federation, the words of Mr Deakin, who was by then the Leader of the Opposition are relevant [826]:
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"The Attorney-General last night passed with a gay bound over all those gulfs surrounding the real question at issue, which is the distribution of powers between the Federal and local Governments . END QUOTE JUDGMENT CALLINAN J QUOTE JUDGMENT CALLINAN J [826] Australia, House of Representatives, Parliamentary Debates (Hansard), 19 October 1910 at 4806-4807 (emphasis added). END QUOTE JUDGMENT CALLINAN J
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The meaning of the wording gay bound would not particularly properly interpreted if we were to use the current CONTEMPORARY meaning of gay now listed as having the first meaning homosexual , second meaning relates to a group of homosexuals and the third meaning listed in COLLINS dictionary ISBN 0 00 470144-5 is given as 2a carefree and merry gay temperature b. brightly coloured; brilliant; a gay lifec. given to pleasure, esp. in social entertainment: a gay life C13; from Old French gai Websters New American directory 1959 list; Gay adj. Lively and merry Now if the High Court of Australia was faced with, say, a provision in the Constitution that Gay people do not require to pay taxes using the contemporary interpretation it might purport that homosexuals do not require to pay taxes. Where even within less then 50 year time span a word
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can dramatically change in application to have a meaning not at all known or contemplated at the time and neither known in dictionary terms, then there is a clear danger for judges to try to interpret the language used by the Framers of the Constitution disregarding their precise debates about it all. It is not good enough to just quote what was stated as to reference of corporations, as there was la lot more stated albeit not in regard of Subsection 51(xx) directly but about the
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conduct of corporations going bust and causing people to end up in poverty and having to rely upon hand outs by relatives, etc. indeed it was Mr. Howe who since 1891 and so persisted in 1897 and then in 1898 finally succeeded to have the provisions now known as Subsection 51(xxiii) invalid and age pensions included in the Constitution. It was however recognised that
the States would control their own superannuation schemes and the Commonwealth of Australia would have to determine for itself what superannuation scheme it would provide, if any, for the former State employees. As such, it was recognised that the Commonwealth of Australia had only power over its own civil servants regarding superannuation entitlements had no legislative 5 powers to dictate to anyone else what superannuation they may have in their workplace. His Honour CALLINAN J stated;
QUOTE 831 Mason CJ, Deane and Gaudron JJ said in Re State Public Services Federation; Ex parte Attorney-General (WA)[1067]:
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"It is sometimes said that a 'paper dispute' must be a 'genuine dispute'. That means no more than that written demands must be genuine demands[1068]. If not if, for example, they are part of a hoax or if they are intended to dress up a purely intrastate dispute[1069] their rejection will not involve any disagreement and, thus, will not result in a dispute at all. To ascertain whether demands are 'genuine demands', it is sometimes asked whether the demands are seriously advanced[1070] or, in the case of demands by or on behalf of employees, whether they are advanced with a view to 'obtaining improved terms and conditions ... within the framework of the claims made'[1071]. This last formulation is one that takes account of the doctrine of ambit [1072] and
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allows that a demand may be genuine notwithstanding that neither the union making it nor its members are 'intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log'[1073]. Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or 'paper disputes', it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand." (emphasis added)
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832 In Re Australian Education Union; Ex parte Victoria [1074], in which the Court held that the States, as employers, could be subject to laws made under s 51(xxxv), Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said[1075]: "The notion that interstate employers must have a common business or operate in a particular industry as a pre-condition of the existence of interstate industrial dispute has never been accepted. Although statements have been made which assert that the nexus or unifying factor which combines in a single industrial dispute a number of demands made on behalf of a number of employees is 'the industry' itself[1076], the nexus may also be found in the calling or vocation in which the participants are engaged. ... And, in the final analysis, the adoption of the popular meaning of 'industrial dispute' and the rejection of the view that there must be a dispute in an industry, is fatal to the contention that the necessary nexus or unifying factor must be found in the industry." END QUOTE
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It should be noted that the Framers of the Constitution did specifically state it had to be 40 common as simular disputes in different States regarding the same employer may not be regarded as interstate in the issues are different as elsewhere set out in this document.
Careful attention ought to be given to the wording;
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Another log of claims was also served with a demand for superannuation only, (see RX / 206.3). This was done in order to create a dispute and thereby to obtain award provision for superannuation.
Again; This was done in order to create a dispute

QUOTE
FEDERAL AWARD LOG OF CLAIMS 1989, C NO. 36649 of 1989, RX / 206.1
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SN: In 1989 the ANF served its 1983 log of claims for a Federal award upon employers in SA and WA. This was done to include, or rope-in new employers to existing awards or creating an award if one did not previously exist. Another log of claims was also served with a demand for superannuation only, (see RX / 206.3). This was done in order to create a dispute and thereby to obtain award provision for superannuation. (A demand omitted in 1983). (A related file is RX / 81.1 which contains the log, ambit and responses to the earlier, 1983 service of the Federal log. In addition, the RX / 81.1 series is supplemented by local area subdivisions, L1 - L9, for the States and Territories. This series was created following the service of the 1983 Federal log, and the development of that case to the award making stage. END QUOTE
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See also Chapter 043B in order to create a dispute As I view it, what we have here is a perfect example how a Trade Union manipulated its position as to cause a dispute to be able then to use superannuation as an issue. For the record, the content of the quoted material by the union was obtained when purchasing a computer that was faulty and having it subsequently repaired. Likewise, I obtained content of
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computers having belonged to lawyers, where I purchased their old computers. As such the ownership of the material was lawfully obtained. On 17 March 2007 I published;
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INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS For the quest of JUSTICE, in different ways. Book on DVD. ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3
Chapter 044 (also Chapter 044 Carter about Family Court in this book) of this book includes the following; 35 QUOTE * Gary, what is this about Alice Carter? **#** INSPECTOR-RIKATI, that was a person who made an assessment about how she experienced the Family Court of Australia operating! Alice Carter whom also acted as legal adviser for the Northern Territory in her report about a visit to the Family Court at Melbourne remarked;
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"unfortunately, much of the proceedings I witnessed were repetitive, and general disorganisation,...." Page 22 5 "Further more the court was disorganised as many files were missing and cases were adjourned early as many counsel failed to turn up." "The counsels and their clients also presented themselves well dressed and I could see that anyone who was not dressed suitably would be extremely obvious. I felt that the emphasis on looking acceptable could easily disadvantage some people. The whole attitude of the court to parties was rather more authoritarian then supportive,....." "Moreover, I felt that the judges were inclined to be slightly patronising and pedantic." "... and the judge's demands that she speak louder reinforced my observations on the authoritarian, patronising attitudes of the judges." 20 "I am now able to understand the general public's fear of going to court and facing judges; I, too, was overawed by the excessive formality and suprised by the appearance, at least of the judges' authoritarian and patronising attitude towards others in the court room. " It ought to be noted that Alice Carter is a lawyer! 25 * That appears not to be too complimentary as to judges! **#** Well, if she found it to be like that then good she did place it on record. END QUOTE 30 To a person like me, in particularly publishing books about legal issues, such computers can be a treasure trove not just to expose what they are doing and or saying but also to be able to ascertain how they operate, and my books do also go into that in further details. 27-8-1997
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Back to the superannuation issue, Mr Howe and other Delegates did not confuse superannuation with pensions, and neither pursued the line to put superannuation within Commonwealth legislative powers other then for its own employees and in fact made clear that persons in high places (Departmental officers, judges, etc) could not contribute to a superannuation scheme. As such I deem it unconstitutional for judges of federal Courts to be
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involved with such kind of superannuation scheme, as it also may place in question their position and the likelihood of judicial bias.
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Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America because of their reasons and because of their motives. There was a funny case in San Francisco, where a law was passed by 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p379
the state that every prisoner, within one hour of his coming into the prison, was to have his hair cut within one inch of his head. That looked very harmless, but a Chinaman brought an action to have it declared unconstitutional, and it turned out that the law was actually passed by the Legislature for the express purpose of persecuting Chinamen.
Mr. BARTON.-That took place under the next clause in this Bill, which is a similar enactment. Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in saying that it took place under the next clause; but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if they had another motive. All I want is, that there should be no imposition of any observance because of its being religious. Again; but I am trying to point out that laws would be valid if they had one motive, while they would be invalid if they had another motive.
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For example, the Parliament of Westminster passed the British Nationality Act 1948 but as the Commonwealth of Australia Act 1900 (UK) section 51(xix) allows for naturalization of aliens by the Commonwealth of Australia to become British nationals then clearly for so far this British Nationality Act 1948 conflicts with the Constitution it is not relevant. Hence, it has no bearing upon Australians as they are and remain to be British nationals. To accept otherwise would mean the British Parliament by the British Nationality Act 1948 effectively amended the Constitution circumventing Section 128 referendum.
Hansard 5-3-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. DEAKIN: When the question of a second chamber comes to be considered, they will assuredly not be satisfied to possess less freedom. More than this. In framing a federal constitution, we should set out with the explicit claim to possess and exercise all the rights and privileges of citizens of the British empire to the same extent that they are possessed and exercised by our fellow-countrymen in Great Britain itself.
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30 It must be kept in mind that Edmund Barton was born in NSW!

Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike subjects of the British Crown. And Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that federal citizenship, we were not in any way interfering with our position as subjects of the British Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD)
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Mr. SYMON.I am not going to put that in the power of any one, and if it is put in the power of the Federal Parliament, then I should feel that it was a very serious blot on the Constitution, and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a question of whether any one of British blood who is entitled to become a citizen of the Commonwealth is to run the risk-it may be a small risk-of having that taken away or diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am willing to
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do it in everything which concerns the working out of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to take away that which is a leading inducement for joining the Union.
No amount of conventions or other agreements that may have been entered into since federation could in any shape or form alter the fact that the Constitution contained in the Commonwealth of Australia Constitution Act 1900 (UK) has the principle embedded that Australians are and remain to be subjects of the British Crown. Therefore for citizenship issues see also my book published on 30 September 2003;
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INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed. ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
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Hansard 1-3-1898 [start page 1683] Mr. SYMON.-It is not a law if it is ultra vires. Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was attacked.
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And Mr. GORDON.Once a law is passed anybody can say that it is being improperly administered, and it leaves open the whole judicial power once the question of ultra vires is raised. Under the clause, as I have amended it, it will not prevent the plea of ultra vires being raised where it is accompanied with the plea of a conflict of law.
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If there is a state law and a Commonwealth law on the same subject, every citizen is entitled to know which be should obey. If he joins a plea of ultra vires with a plea of conflict of law, that ought to be heard. END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
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We have therefore that if one were to accept the High Court of Australia decision in Sue v Hill that since 1986 the Constitution was substituted by an identical worded Constitution contained in the Australia Act 1986 (UK and/or Cth) then effectively the High Court of Australia ruled itself to be a KANGAROO COURT in that it was not operating within Chapter III of the Constitution contained in the Commonwealth of Australia Constitution Act 1900 (UK) but under a Constitution that was never accepted by the people of Australia and indeed constitutionally could not have been. As my already published books have set out extensively, the Constitution contained in the Commonwealth of Australia Constitution Act 1900 (UK) did not permit any notion of republicanism or for that turning the Commonwealth of Australia into some republic.
40 There are people who argue about the title Prime Minister not being mentioned in the constitution then his position is unconstitutional, this I do not agree with. The Prime minister is a title the governor/governor-General bestowed upon the political leader of the Government. It does not elevate the position above other ministers of the Crown as constitutionally this cannot be done, albeit by convention this is done unconstitutionally. The Framers of the Constitution throughout their debates did contemplate that there would be a Prime minister in the newly to be formed Commonwealth of Australia, but nothing in their debates and neither in the Constitution sought to elevate a Minister with the title Prime minister
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to have a special constitutional position as it was all along taken that the Prime Minister as like any other minister would be a servant engaged by the Queen to run a Department. While the Prime minister appears to have a slash fund of about 400 million dollars to spend as he desire, this I hold is unconstitutional. Likewise the Ministers robbing Consolidated Revenue for 5 their pay is like a checkout chick (register attendance) putting their hands in the till to reward themselves with money they deem they earned rather then to await pay from the employer. Indeed, if any person were to come before the Courts the person more then likely would be found GUILTY of deception (stealing) yet the Constitution providing that the Queen shall be paid out of the consolidation Revenue for the Ministers must make it clear that their annual salary and 10 their superannuation is a matter between the British Monarch Queen Elizabeth II and the Minister and nothing to do with the taxpayers. The fact that the Federal Government has appointed a Remuneration Tribunal does not circumvent constitutional constrains. If this was deemed to be permissible then we might as well, so to say, throw the Constitution out of the window as Members of Parliament can circumvent then constitutional prohibitions by legislating 15 whatever they want. As set out in my previously published books, the Queen has at times appointed a former Governor-General to be a Prime Minister (A clear example is the Prime Minister of New Zealand who admitted during the Constitution Convention Debates having been sacked as GovernorGeneral but then Her Majesty Victoria still appointed him subsequently as he claimed Her 20 Majesty did not approve of his sacking) and as such it is absurd and indeed unconstitutional and illegal to provide payments for a former Governor-General while he can still serve the Queen in other positions. It is irrelevant what Prime Minister Billy Hughes may have stated in Parliament in 1919 as there is and never was any constitutional powers for a Prime Minister to somehow declare the Commonwealth of Australia to be independent. Indeed, a Prime Minister has not even any powers to declare or authorise a war, as this would be also against Section 24AA of the Crimes Act of TREACHERY as only the Governor-General has the prerogative powers to DECLARE war or peace and it can only be enacted upon after it has been Gazetted. In recent days, it was reported that G. W. Bush was making an issue that innocent people are being killed with their suicide bombing in Iraq. This, more then 4 years after the so called SHOCK & AWE bombardment that killed many innocent people. Ironically that the worst offender of mass killing by bombing would complain about others to do so in a minor scale. Any killing is deplorable, and there can be no justification to do it because of (ILLUSIVE) WEAPONS OF MASS DESTRUCTION or for other reasons. We have courts to deal with legal disputes, that if unless you approach the High Court of Australia, as I did, to seek within Subsection 75(v) a mandamus/prohibition as then the Court somehow ignores it constitutional obligation to make a ruling based upon the MERITS of the case before it by simply railroading the entire case. The fact that the very issues then presented before the Court were subsequently also pursued by me in the County Court of Victoria and then the numerous constitutional grounds remained to be UNCHALLENGED may underline that
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there was an issue to be litigated. As the application before the High Court of Australia had been amended in accordance to the previous given directions by the Registrar of the Registry, then the Courts refusal on basis that it did not comply with the Rules of the Court was a total absurdity and I view a abuse of legal powers to shield the Federal Government from its unconstitutional conduct to be held legally accountable. To my knowledge, no one, besides my self sought to litigate the constitutional validity of the armed invasion into the sovereign nation Iraq against the Federal Government. it was not relevant to me if there were WEAPONS OF MASS DESTRUCTION or not and if the USA could prove with delivery receipts that it had provided chemical or other weapons to Iraq, my issue was that Australian troops could not be allowed to enter the sovereign nation Iraq, also considering Section 24AA of the Crimes Act (Cth) unless the governor-General first published a DECLARATION OF WAR in the Gazette. As such, my application within Subsection 75(v) was not political motivated but was one to the GUARDIAN OF THE CONSTITUTION, as the High Court of Australia purports to be, to uphold the terms and conditions set out in the Constitution. Indeed, the framers of the Constitution specifically provided that the Court has to hear such a case. Well, it didnt and as such I hold that this refusal at the very least contributed to the mass murder of many innocent Iraqis. Likewise the hanging of the late President Saddam Hussein, while having been held in custody of the so called COALITION OF THE WILLING, is an utter disgrace. We have that the High Court of Australia no longer seems to hold the Federal government accountable for it unconstitutional/illegal conduct and we have seen also that even the Australian Federal Police was using tax-payers monies to pay people in Indonesia to seek to prevent by some means refugees to enter the Commonwealth of Australia. How much this resulted in the drowning on 19 October 2001 of the 353 deaths, not to forget including 146 children when the SIEV X sank is also an appalling and disgraceful occurrent that will remain with us. No one can hold it against the High Court of Australia if it doesnt act because no case is presented before it and so it cannot invoke jurisdiction, but it is another matter if it actually refuses to invoke jurisdiction where I placed on various occasions matters before the Court to seek a judicial determination on the MERITS of the cases but was refused this. We had a Prime Minister, not even validly elected as I proved in court successfully, who authorise mass murder by being involved in authorising the attack upon the sovereign nation Iraq and yet the High Court of Australia rather then to grab the case with both hands, so to say, as to be able to make a judicial determination as it should have done as a GUARDIAN OF THE CONSTITUTION, rather then, in my view, was politically motivated to prevent the Federal Government to be legally accountable for its deeds.. I did not seek the High Court of Australia to make a political decision and/or a political motivated decision rather relied upon the Framers of the Constitution to support my case that we have a constitution and we have a constitutional government and the Courts obligation was to
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ensure that my case was heard and determined upon legal facts! I view that more then likely the judges may have contemplated that the issue might just go away and WEAPONS OF MASS DESTRUCTION might be found to somehow justify the armed murderous invasion but to me the conduct of the judges was appalling and undermining the credibility of the court as it should never have accepted that innocent people were being slaughtered merely upon some perceived notion of WEAPONS OF MASS DESTRUCTION and for this somehow the constitutional limitations were no longer applicable.
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It is this same absurd view that seems to surface time and again by judges to hold that somehow the Federal Parliament can suspend civil right when ever the federal government were to hold there is a WAR. Well the challenge is upon the judges to prove on LEGAL FACTS where the Framers of the Constitution provided this, not just imaginary powers, but rather recorded statement in the Hansard of the Constitution Convention Debates that it was stated specifically by the Framers of the Constitution that the Commonwealth of Australia could use its armed forces or military powers against its own citizens and other without the prerogative powers of the Queen, being delegated through the Governor-General for the Commonwealth of Australia or a Governor of a State? My published books set out extensively what the Framers of the Constitution debated and that included that there was no power for the Commonwealth of Australia to use its forces against citizens of a State and it was up to a State to request assistance in cas e of domestic violence (civil war). As such, if the Commonwealth of Australia is specifically prohibited to use its defence powers to invade any State then it could not be assumed that nevertheless somehow the Commonwealth of Australia still can act contrary to this, because in 1943 some judges may illconceived have concluded this with a total disregard then to the Hansard records of the Constitution Convention Debates stated intention of the Framers of the Constitution. Please read first Chapter 077 David Hicks entitled to enter Federal Parliament before continuing reading further. Somehow we now are seeing that David Hicks is going to be held in imprisonment in South Australia not upon the issue if the South Australian Government recognise the Military Tribunal with its kind of litigation system or it being a so called STAR CHAMBER COURT system outlawed in the States and Commonwealth of Australia, but that the Federal Government somehow seeks to trample upon States rights and make arrangements that effectively recognise STAR CHAMBER COURT conduct and convictions obtained by torture as to be part of the Australian legal landscape. And I would, so to say, hold my breath for the High Court of Australia as the GUARDIAN OF THE CONSTITUTION to take appropriate action as I understand that with the Pacific Solution it then also allowed the unconstitutional conduct by the Federal government to flourish and indeed to continue by ill conceived ADMINISTRATIVE DETENTION, while constitutionally Section 120 prohibits any such kind of conduct. As the Framers of the Constitution made clear it is the Governor-General who invokes prerogative powers and not some Prime Minister and as such if we have any really fair dinkum OFFICERS OF THE COURT presiding at the bench then I expect no less that John Howard and his cohorts who authorised the unconstitutional conduct, and those who directly and/or indirectly supported this conduct are brought to JUSTICE and face the legal consequences of their TREACHERY, etc.
Hansard 10-03-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.-Yes. The Queen is the Commander-in-Chief of the British Army. She has the sole power of making peace and war. According to constitutional assumption it is her army. But who exercises the control of the Imperial Army? Is it not the adviser of the Queen? Would there not, as I said before, be a revolution if the Queen exercised her powers without consulting her Ministers? And Mr. BARTON (New South Wales).Then, again, there is the prerogative right to declare war and peace, an adjunct of which it is that the Queen herself, or her representative, where Her Majesty is not present, holds that prerogative. No one would ever dream of saying that the Queen would declare war or peace without the advice of a responsible Minister. Wherefore, we all came to the conclusion, as constitutional writers have long come to the conclusion, that the prerogative is given in trust for the people, and is, therefore, only exercised at the instance of a responsible Minister. I should like to know whether there would not be a revolution in England if the Queen chose to declare war or to make peace without the sanction or advice of a responsible Minister? That would be as absolutely gross an infraction of the Constitution as an p384 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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attempt to abolish the House of Commons, as the advent of a second Protector, not only taking away the bauble, but taking all those who surrounded it. Do we not then come to this conclusion, that the Constitution is absolutely safe in this form as we understand it, that you can not have a prerogative of the Crown in these modern days which can be exercised without the advice of a responsible Minister if a responsible Minister chooses to advise?
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Therefore, it must be clear that the responsible Minister being the Minister of Defence is the only appropriate person to advise the Governor-General as after all he is the responsible Minister who is commissioned to be the Minister for the Department of Defence. While the Delegates did at times indicate that there would be a Prime Minister, and as such the unwritten Constitution does include the appointment of a Prime Minister, it does however not take away the constitutional condition that only the Minister of Defence can advise the Governor-General as to if the Governor-General ought to issue a DECLARATION OF WAR or not.
Hansard 10-03-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.But the Minister is responsible for the administration of the department as the person under whose control it is, within the Executive arrangement, and he is responsible for all expenditure upon it. Having this responsibility, he is entitled to tender the advice which will enable him to exercise his responsibility fearlessly.
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As such, unless the Prime Minister happens to be at the time the Minister of Defence, the Prime Minister does not service in dealing with the issue of if there should or should not be a request to the Governor-General for a DECLARATION OF WAR to be issued. In the case with the armed invasion into the sovereign nation Iraq, either the Minister of Defence did not give any advise to the Governor-General, considering, if a responsible Minister chooses to advise or the Minister of Defence simply did give the advise but the Governor-General at the time deemed it was against the national interest of the general community to authorise an armed invasion into the sovereign nation Iraq. Either way, the end result was that the Minister of Defence had no lawful authority to deploy Australian troops and certainly not invade the sovereign nation Iraq. Indeed, any armed invasion would be in breach of Section 24AA of the Crimes Act (Cth) as Iraq was at the time a friendly nation. It also must be understood that the Federal Parliament neither could authorise an armed invasion, even if it had purportedly done so, albeit the Senate opposed this in any event.
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As for the United Nations, it had no constitutional position to override the prerogative powers of the Governor-General or any other constitutional power or limitation, and even if the UN somehow had authorised an armed invasion into Iraq, which I understand it never did in any event, it still would not have made it constitutionally valid for the Minister of Defence to allow Australian troops to invade the sovereign nation Iraq.
Hansard 11-2-1890 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir J. G. LEE STEERE.. What is the use of our agreeing to have a federal defence force if there is to be no head? Suppose a war broke out and we wanted to concentrate all the colonial troops in one place, who is to give the orders? The Prime Minister of one colony would not allow the Prime Minister of another colony to give such orders. We must have a general appointed by the Imperial Government to take command of the troops, and we must have an Executive Government on whose orders that general would act, otherwise we cannot have federal defence. Hansard 4-03-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) p385 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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Sir SAMUEL GRIFFITH: I should have preferred, Mr. President, that my hon. friend beside me, the Hon. James Munro, Prime Minister of the great colony of Victoria , should have followed you in the debate on the resolutions that you have submitted to us.
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Hansard 9-03-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) The PRESIDENT: By some oversight when the delegates were elected by Parliament, there was, I believe, no member of the government elected beside the Prime Minister, Mr. Munro, and unless Mr. Shiels be allowed the privilege of remaining upon the understanding that he will not take part in the voting, the Prime Minister of Victoria will be left without a colleague in his government Hansard 11-03-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. GILLIES: How could it possibly live unless the prime minister obtained a dissolution from the governor-general?
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In this context it refers to the Governor-General and as such it refers to the Prime Minister of the Commonwealth of Australia. 20
Hansard 11-03-1891 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. CLARK: When we know that he has the power of nominating every member of the senate, and every lieutenantgovernor, and of appointing superior and inferior judges and justices of the peace, as well as the power of vetoing all local legislation, his long term of office is easily accounted for. With such reins in his hands he might be expected to remain in the saddle an indefinite time. We do not want to place it in the power of the prime minister of our dominion to exercise patronage to that extent. What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments.
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30 The so called WAR ON TERROR is not a WAR against some visible enemy, or some other nation having armed forces, but rather has been ENGINEERED by POLITICIANS to pretend there is some WAR going on and so that they can use this as an excuse to suspend CIVIL RIGHTS, etc. The High Court of Australia in the 1943 Jehovah witness case wrongly then concluding that somehow the Commonwealth of Australia could suspend CIVIL RIGHTS in time of war. The truth is that the so-called WAR ON TERROR is not a WAR at all. It is a political trick but in the process having declared this war against INDIVIDUALS, as that is what it amount to, then INDIVIDUALS take it upon themselves to defend themselves in a PREEMPTIVE strike kind of tactic (Remember the PRE-EMPTIVE strike to invade Iraq by the Coalition of the Willing?) which included the Bali bombing killing 88 Australians. I deplore any kind of killing of human being and nothing I write should be seen to seek to justify the killing of 88 Australians in those bombings, but lets be clear about it, those INDIVIDUALS who did the bombings were after all in a WAR against the Australian Government, as the Australian Government had declared war on them, albeit not specifying specifically who the Federal Government declared WAR against. "Naturally, the common people don't want war, but after all, it is the leaders of a country who determine the policy, and it is always a simple matter to drag people along whether it is a democracy, or a facist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they're being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country." Hermann Goering, Hitlers' Reich-Marshall, at the Nuremberg trials after WW2. 55
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Indeed, this too was my constitutional issues before the courts, and so successfully, that on 8 October 2001 the writs were issued by the Governor-General but unbeknown to the GovernorGeneral the PROCLAMATION to prorogue the Parliament and to dissolve the House of Representatives had not been Gazetted and so published until 9 October 2001 and as such the writs were without legal force. Neither did the Gazette bear any references to Government Printer, as was required by the Act Interpretation Act 1901 and as such was neither valid for this also. See also page 10 of the Chapter Chapter 003 LEGAL FICTION
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON (South Australia).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union. The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. The first clause says-This Act maybe cited as the Commonwealth of Australia Constitution Act." I assent to all that. Then comes clause 3, which says it shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honorable Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of the colonies enumerated shall be united in a Federal Constitution under the name of-I say it ought to be "of Australia." Again; That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree.
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And also consider; 35

Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of the British Crown.
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Edmund Barton was born in NSW and later became the Second Prime Minister of Australia after the first commissioned Prime Minister Mr. Lyne resigned his commission after 6 days because he could not form a Government. He had been an obstruction to the formation of the political union, but the Governor-General at the time held to be obligated to commission him to be the first Prime Minister of the newly to be formed Commonwealth of Australia as Lyne was the Prime Minister of the oldest colony NSW.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. And Mr. SYMON.. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship. And 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p387
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Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or restrict those rights of citizenship, except with regard to one particular set of people who are subject to disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment will not be accepted. Mr. BARTON (New South Wales).-
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So far the right of citizenship, if there is a right of citizenship under the empire, is defined in the Constitution. Now, each citizen of a state is, without definition, a citizen of the Commonwealth if there is such a term as citizenship to be applied to a subject of the empire. I must admit, after looking at a standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of citizenship as applied to a British subject. No such term as citizen or citizenship is to be found in the long roll of enactments, so far as I can recollect, that deal with the position of subjects of the United Kingdom, and I do not think we have been in the habit of using that term under our own enactments in any of our colonies. Mr. BARTON.-
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He will be giving to the Commonwealth Parliament a power, not only of dealing with the rights of citizenship, but of defining those rights even within the very narrowest limits, so that the citizenship of a state might be worth nothing; or of extending them in one direction, and narrowing them in another, so that a subject living in one of the states would scarcely know whether he was on his head or his heels. Under the Constitution we give subjects political rights to enable the Parliament to legislate with regard to the suffrage, and pending that legislation we give the qualification of electors. It is that qualification of electors which is really the sum and substance of political liberty, and we have defined that. If we are going to give the Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament." Mr. HIGGINS.-You give the Federal Parliament power to naturalize. Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire. Have we not done enough? We allow them to naturalize aliens. That is a power which, with the consent of the Imperial authority, has been carried into legislation by the various colonies, and, of course, we cannot do less for the Commonwealth than we have done for the colonies.
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Mr. KINGSTON.-Such legislation is only good within the limits of each state. Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. We do not propose to interfere with them in this Constitution.
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Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 (9 December 2003). Doesnt address what-so-ever the State legislative jurisdiction as to citizenship. Therefore, we have a High Court of Australia that appears to me being political motivated to try to alter the Constitution by stealth! It must be clear that the terminology used are; British subject, to make persons subjects of the British Empire., with the consent of the Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. There are numerous other quotations that makes it very clear that Australians (as they then already were referred in view of the title Australia of the continent) in reality were British subjects and aliens were to be naturalized by consent of the British Parliament to be made British subject (nationals).
Again the quotation from the joint judgment; Windeyer J said in Victoria v The Commonwealth ("the 5
Payroll Tax Case")[18] ( [18] (1971) 122 CLR 353 at 395-396.) "The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were selfgoverning colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation.
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Clearly, this 1971 statement of Windeyer J could not be relied upon where it was made without the High Court of Australia then permitting the usage of the Hansard records of the Constitution Convention Debates. It might suit the judges of today to seek to rely upon it for purpose to achieve to their end result to validate the unconstitutional IR WorkChoices legislation but this only, in my view, questions the credibility of the judges concerned.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-I understood the honorable member to put himself on the very highest pedestal, and by contrast to put me on the very lowest. At all events, I feel that if this were carried, an unpopular individual, to
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obtain his rights and liberties, would have to go cap in hand to and be at the mercy of the Government of the day. I was thinking of the pig-tail case which occurred in California, and which I alluded to some time ago, where an abominably unjust law was passed against Chinamen. It was passed to persecute them in regard to their pig-tails, which they [start page 1689] regard with exceptional reverence. That law was declared to be unconstitutional as a law passed by a state. I ask honorable members to consider the great
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difficulty there would be in getting the Federal Congress or Federal Executive to interfere in the case of Chinamen, so as to enforce their rights in such a case. There was an exceptional law which should never have been passed. It was distinctly a persecuting law. Any practical politician would see the great difficulty there would be in appealing to a Federal Executive, especially if there was an election approaching, to enforce the just rights of Chinamen in such a case. The same thing might happen supposing a federal law were
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passed which was outside the Constitution. Supposing that a majority of the state concerned happened to regard the man as unpopular supposing a law were passed that no one bearing the name of Jones should be admitted into the state of Virginia, the law might be directed against a certain person named Jones, and it would be unconstitutional, and Jones could not enforce his rights to go into that state. I ask, is he to be compelled to go cap in hand to the Attorney-General of the state of Virginia to enforce his rights? I feel that,
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with the very best intentions my honorable friend is making the gravest of mistakes. So far as regards the main purport of the amendment, it would mean this: That you could only get a point of this sort decided by having a state or Commonwealth intervening as a party. You would turn judicial questions into political questions. You would proclaim-"Here is a question between the state and the Commonwealth; here is a political question"; and you would make the Judges partisans. It is one of the great advantages of
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private persons being able to raise these points, and not the states or the Commonwealth, that you keep the judicial bench free from the taint of political partisanship. I feel that the more you look at this thing all round, the more inconsistent it is with the very first principles of justice. It may be said-Even supposing the law does go beyond the Constitution in some degree, surely it ought not to be left to a private person to upset it." I say it ought to be upset at once and at the very earliest point. As soon as ever you find it has 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p389
gone beyond the bounds you ought to say-"This thing is illegal." Otherwise you will leave to the Ministry of the day these powers of which you are so careful, giving them to a majority of the states and to a majority of the people. You would allow the Ministry of the day to exercise a suspending power as to whether it would enforce a law or not, which is most dangerous.
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Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. OCONNOR.Then how can you say that you are protecting the man who is so poor that he cannot afford to go to the Privy Council, when you are leaving in the Constitution a power which enables a case to be taken to the Privy Council at any time? If one looks at this matter not from the view of an appeal to passion, or by-using epithets, or by the introduction of any other irrelevant matter at all, then the only question which arises isShould we extend this power of appeal to the class of cases to which it has been decided by the Privy Council that the right applies? It has been laid down in many cases that it is not in every instance that Her Majesty in Council will allow this right of appeal. And may I remind honorable members for a moment of the way this right is exercised? The petitioner appeals to the Queen. The petition is referred to the Privy Council. If it be a proper case for appeal the Privy Council gives leave, and then the appeal has to be made to the Privy Council. This is a roundabout elaborate method, but it is the method that has to be adopted. It is not in every case that the appeal is allowed. It has been laid down in the case of Prince v. Canyon and in many other cases that this appeal will not be allowed where the case involves. only disputed matters of fact in which no question of magnitude is involved, and no question of public interest and importance. Consequently, it in only in cases where it is either some. particular question, as affecting great interests-as affecting the interests of many persons-as affecting some question of the conflict of laws or of decisions which have already been come to; it is only in [start page 2311] those cases in regard to which the rule has been laid down as to Canada that appeals will he permitted. And Mr. CARRUTHERS (New South Wales).This Constitution does not give the people of Australia power to make laws at all. Can any honorable member deny that? This Constitution, I repeat, does not give the people of Australia power to make laws. No law is worth a snap of the fingers until the Queen has given her assent to it. Mr. SYMON-Oh, oh! Mr. CARRUTHERS.-It is all very well to brush aside my contention in that way, but, as a matter of fact, you have to obtain the Royal assent to a proposed law before it can become law. Having acknowledged the right of the Crown in regard to the power of making laws, the argument of the honorable member falls to the ground in regard to claiming the right of making the laws. Mr. SYMON.-And the Queen's court interprets them. Mr. CARRUTHERS.-All we ask is that the Queen's court, as we know it, should be the court under this Constitution to interpret the laws-rather the court we know than the court we don't know. And Mr. CARRUTHERS.My [start page 2313] honorable friend urges a very common argument against the continuance of this right of appeal to the Privy Council-an argument which only needs to be examined to be thoroughly demolished, namely, that we want to have, in the final Court of Appeal, a body of Judges who have colonial experience, who have colonial ideas, and who have colonial knowledge. Now, any man, especially an able member of the bar like-my honorable friend, ought to know that the worst tribunal you could have would be a tribunal that would decide, not on the sworn testimony submitted to the court, but on knowledge of the case, and in regard to the case and its surroundings, in the minds of the 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p390
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Judges-evidence of a character which cannot be shaken by cross-examination-evidence which is not known to the parties interested in the case at all. I venture to say that more mischief is done by cases being decided by some twist or turn in the minds of Judges than by any judicial interpretation of the evidence submitted to the court. Now, my great objection to establishing the final Court of Appeal in Australasia is because there is existing in the minds of the Judges that unconscious bias. I do not impute corruption; I would be very sorry to do or say anything which would tend to diminish the weight of the authority of our colonial benches; but without laying myself open to the charge of saying anything improper, I venture to repeat that that unconscious bias does exist, and will always exist, in small communities, especially where they are inhabiting large territories.
10 While Wilson J stated at 42;

While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates,
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Wilson J of the High Court of Australia in the 1982 religious funding case argued that he could not (then) rely upon the Hansard records, but even if he did he found that the Framers didnt exclude religious funding. The other judges relied upon this and concurred with him. The truth is that religious funding, regardless if it is by tax exemption, tax deduction, etc, is all unconstitutional, as it all in the end is funds, one way or another, from consolidated Revenue.
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. REID.-I suppose that money could not be paid to any church under this Constitution? Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.
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It must be clear that the about $9,000.00 per student for Exclusive Brethern and/or other kind of religious schools is unconstitutional as they serve a religious purpose. Likewise the tax free or tax concession provided by Peter Costello for the renovation of a Catholic Church clearly was unconstitutional! The Commonwealth of Australia cannot legislate what a religion is, and therefore can neither provide for funding for any religious organization. It doesnt matter if it is a Jewish, Islamic, Buddhist, Catholic, or other kind of religious school it all is and remain unconstitutional.
Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Sir JOHN DOWNER.-I do not think that is necessary, because the Commonwealth will have only such powers as are expressly bestowed upon it, and by no straining of construction can you find that the Commonwealth has been given any power to legislate with regard to religion. Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason. Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit the enactment of these laws. Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these matters. Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the p391 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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National Australasian Convention) (Chapter 33 of the CD) (Re-now- Section 96 of the Constitution) Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions which must exist before this provision can be brought into operation will see that it assumes that the states must be reduced to a condition of pauperism before they can take advantage of it. Sir JOHN FORREST.-What would you do if they were? Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is some power implied in the Constitution to give such aid. Now, from the consideration and study which I have been able to give to the Constitution, I have no hesitation whatever in saying that there is no such power implied. The Constitution is formed for certain definite purposes. There are definite powers of legislation and definite powers of administration, and the clause that the Right Hon. Sir John Forrest called attention to just now-clause 81-expressly provides that the revenues of the Commonwealth shall form one consolidated fund, to be appropriated for the public services of the Commonwealth in the manner and subject to the charges provided in this Constitution. Mr. WISE-The order and good government of the Commonwealth would come under the term " public services of the Commonwealth." Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of the powers of the Commonwealth, especially when dealing with the expenditure of the money of the taxpayers. In such a case there will be a great deal of care taken to keep the nose of the Federal Parliament to the grindstone in the matter of this expenditure. I do not think any expenditure will be constitutional which travels outside these limits. We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above Parliament, and Parliament will have to conform to it. If any Act were carried giving monetary assistance to any state it would be unconstitutional, and the object sought would not be attained. That brings me to the question of whether it is desirable that there should be any such power either expressed or implied. I have no hesitation in saying that it would be a disastrous thing for the future of the [start page 1109] Commonwealth if there was any such power given. WELSH v. UNITED STATES, 398 U.S. 333 (1970), 398 U.S. 333, WELSH v. UNITED STATES, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 76., Argued January 20, 1970, Decided June 15, 1970 20 January 1970 3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief while not exempting those whose claims are based on a secular belief. To comport with that clause an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. Pp. 356-361. 4. In view of the broad discretion conferred by the Act's severability clause and the longstanding policy of exempting religious conscientious objectors, the Court, rather than nullifying the exemption entirely, should extend its coverage to those like petitioner who have been unconstitutionally excluded from its coverage. Pp. 361-367.
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40 Yet, the Commonwealth Electoral Act 1915 Section 245 unconstitutionally provides for religious exemption! As stated below; QUOTE Remarkably, albeit the Constitutional Convention Bill 1898 (see 16 March 1898) had no provision for financial assistance to the states, as was defeated by the Convention (as shown above) in the final Constitution never the less, as enacted in 1900 had the following; 96 Financial assistance to States 50
During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise
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provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.
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It appears therefore, that albeit the matter was defeated at the Constitutional Convention, it was inserted thereafter! END QUOTE However, as the matter was extensively debated, as shown below, therefore we still do now what Section 96 was about, being State financial crisis matters, nothing to do with religious school funding! Therefore the High Court of Australia in ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981) and other decisions were utterly wrong about the application of Section 96, and it being used for funding schools. Section 96 is limited to State financial crisis, and not for some third party funding, to obtain unconstitutional powers over States or others! If we briefly attend to the provision of section 51(iv) as to borrowing funds, then this too is limited;
Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD); Mr. ISAACS.-You are referring to paragraph (4) of clause 52? Mr. HOLDER.-Yes. Mr. OCONNOR.-But that money could not be spent upon any object the Federal Parliament thought fit. Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. I see that, according to the provision I have quoted, there is power given to the Federal Parliament to borrow money on the credit of the Commonwealth, and I say again that I do not know of any limitation of the expenditure of that money except the limitation which would be specified in the Loan Act authorizing the borrowing of the money. Of course, these words cover the raising of the money for the building of railways for instance, and in such a case the limitation would be the terms of the Loan Act. But is there anything anywhere to prevent a Loan Act being passed by the Federal Parliament authorizing the raising of a certain sum of money, the proceeds of which loan might be divided according to the terms of the Act among the states according to their needs, or upon some other principle? Mr. GLYNN.-The first three lines of clause 52 affect that point. Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government of the Commonwealth," not of the states. And Mr. BARTON.-The honorable and learned member (Mr. O'Connor) pointed out that it might prevent the passing of a law for Sunday observance. The real question for-as to decide is whether the clause should or should not remains. The only difficulty I have upon the point is this: I do not anticipate any trouble from the want of a prohibition upon the states forbidding them from dealing with religious questions, but we must always [start page 662] recollect that humanity has a habit of throwing back to its old practices. Since a couple of hundred years ago we have been tolerably free from sumptuary laws. But there is in many quarters a great disposition to take to these laws again, and we may before many years have passed be overwhelmed with them.
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Clearly, Commonwealth of Australia borrowings are therefore very limited as to what it can be used for! 45
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS (Victoria).-In Adelaide I voted against the insertion in the preamble of a form of words proposed by the honorable member (Mr. Glynn), and it is with regret that I shall have to repeat that vote-at the present time, because the Constitution contains no provision to obviate the had effect which the insertion 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p393
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of these words will have. I am glad that I am so far justified in my opposition to the proposal made by the honorable member in Adelaide by the fact that no Assembly and no person has suggested the insertion of the words which were then proposed to be inserted by the honorable member. Those words were utterly inappropriate. I freely admit that the words which he now proposes to insert are not quite so objectionable, though I still think that the amendment could be improved upon. I say frankly that I should have no objection to the insertion of words of this kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard against the passing of religious laws by the Commonwealth. I shall, I hope, afterwards have an opportunity, upon the reconsideration of the measure, to bring before the Convention a clause modified to meet some criticisms which have been made on the point, and if I succeed in getting that clause passed it will provide this safeguard. I shall have an opportunity then of explaining how exceedingly important it is to have some such safeguard. There is no time for me now to go into an elaborate history of this question so far as the United States of America are concerned. I have investigated it with a great deal of care, and I can give the result of my investigations to honorable members, who, I hope, will not believe that I would misled them if I could help doing so with regard to the effect of what has taken place there. Because they had no words in the preamble of the Constitution of the United States to the effect of those which the honorable member (Mr. Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of enforcing religion. There was a struggle for about thirty years to have some words of religious import inserted in the preamble. That struggle failed; but in 1892 it was decided by, the Supreme Court that the people of the United States were a Christian people. Mr. BARTON.-That decision was followed practically by the decision that they were a Christian people. Mr. HIGGINS.-Yes. That decision was given in March or February, and four months afterwards it was enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground that Sunday was a Christian day. The argument was that among a Christian nation you should enforce Christian observances. Mr. BARTON.-Could they not have closed the exhibition on Sundays without that enactment? Mr. HIGGINS.-I think the honorable and learned member will hear me out in this, that there is nothing in the Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt, the state of Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in the Constitution enabling the Congress to pass. a law for the closing of the exhibition Sunday. As soon as ever those parties who had been working for the purpose of getting Sunday legalized throughout the United States found that decision given in February, 1892, that "this is a Christian nation," they followed it up quickly, and within four months there was a law passed for the closing of the exhibition on Sunday. Mr. WISE.-Was that held to be constitutional? Mr. BARTON.-It has not been challenged yet. [start page 1735] Mr. HIGGINS.-It has been in force for five and a half or six years, and it was struggled against, as my honorable friend will know. There was a strong monetary interest against it, and they, no doubt, took advice, but I will say frankly that I am not aware that it has been held to be constitutional. I understand though that there has been no dispute among the legal men in that country as to its being constitutional. Honorable members will hardly realize how far the inferential powers have been extended in America. I should have thought it obvious, and I think Mr. Wise will agree with me, that the Congress had no power to pass a law of that sort. Mr. WISE.-I admit that your statement puts a very different complexion on the matter. Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should have thought that it was not within the scope of Congress to pass a law, no matter how righteous, to close the exhibition on Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again and again that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are conferred upon the Congress that go beyond any dreams we have at present. I know that a great many people have been got to sign petitions in favour of inserting such religious words in the preamble of this Bill by men 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p394
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who know the course of the struggle in the United States, but who have not told the people what the course of that struggle is, and what the motive for these words is. I think the people of Australia ought to have been told frankly when they were asked to sign these petitions what the history in the United States has been on the subject, and the motive with which these words have been proposed. I think the people in Australia are as reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly and suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved power to the state, as it is now. Let the states have the power. I will not interfere with the individual states in the power they have, but I want to make it clear that in inserting these religious words in the preamble of the Bill we are not by inference giving a power to impose on the Federation of Australia any religious laws. I hope that I shall be excused for having spoken on this matter. I felt that it was only fair that honorable members should know that there is a damer in these words, if we are to look to the precedent of the United States. I will help honorable members in putting in any suitable words provided that we have sufficient safeguards. Mr. LYNE.-Will you explain, before you sit down, where the particular danger is? Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. And Mr. HIGGINS.-No; I think the honorable member will see that a recital in the preamble to the Constitution is a very different thing from an oath which may be taken in a court of justice or anywhere else. Mr. DOUGLAS.-You will find that you can make an affirmation without referring to Almighty God. Any person can make an affirmation who has no belief in Almighty God. The CHAIRMAN.-I do not think the honorable member is in order in making a speech. Mr. HIGGINS.-I thank the honorable member for being disorderly under the circumstances. I think there is a good deal of force in what he says, but I also see this, that the taking of an oath in a court of justice or on taking office is quite a different thing from having in a well thought-out preamble to a Constitution any reference to religious belief. Mr. WALKER.-It is prescribed in the schedule. Mr. HIGGINS.-That may be, but a schedule is quite a different thing from a preamble. And Mr. DOUGLAS (Tasmania).-When this subject was broached in Adelaide, I took the opportunity of stating that I could not see the utility of inserting these words in the preamble of the Commonwealth Bill, and my opinion has not in anyway altered up to the present time. I should like to know what is the object honorable members have in view in desiring the insertion of these words? Do these words convey to the public mind any particular idea that their insertion in the preamble of this Bill would make us a religious people? The words in question are "humbly relying on the blessing of Almighty God." Now, do not we all rely upon the blessing of Almighty God in our daily transactions? Certainly. But do we set forth that fact in all our letters and documents by which we communicate with one another? Certainly not. No doubt the supporters of this amendment desire to make the public believe or fancy that they will become a religious people if such words as these are put into the preamble of this Bill. Do we do this at the present time in our ordinary legislation? Do not we all know that it is a mockery that the House of Commons at the present time commences its sittings, day by day, by having 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p395
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prayers read in that assembly? The Speaker of the House of Commons reads the Lord's Prayer before proceedings are commenced, but it has crown into such a farce that nobody attends the House until the prayer is over. Do we want to introduce that system here? Mr. PEACOCK.-It is done here. Mr. DOUGLAS.-I believe that there are still some legislative assemblies in Australia where they commence the day's proceedings by reading the Lord's Prayer. It was originally done in Tasmania, but it was soon found out to be a perfect piece of mockery, and abandoned. Mr. ISAACS.-Do not you have any reference to the Supreme Being in the Governor's speech in Tasmania? Mr. DOUGLAS.-We used to have the Lord's Prayer read in the Legislative Council, but it became a matter of such indifference that the custom was given up. Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-No; it would only prevent the making of laws for a religious reason. Dr. COCKBURN.-Who could determine the intention of the state? The amendment would simply prohibit the enactment of these laws. Mr. HIGGINS.-My desire is to prevent the Federal Parliament from dictating to the states in these matters. Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. HIGGINS.-The particular danger is this: That we do not want to give to the Commonwealth powers which ought to be left to the states. The point is that we are not going to make the Commonwealth a kind of social and religious power over us. We are going into a Federation for certain specific subjects. Each state at present has the power to impose religious laws. I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. The state of Victoria will be able to pass any Sunday law it likes under my scheme. It can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a proper thing for the Commonwealth, to exercise this power. I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state. Again; I want to leave that power with the state; I will not disturb that power; but I object to give to the Federation of Australia a tyrannous and over-riding power over the whole of the people of Australia as to what day they shall observe for religious reasons, and what day they shall not observe for that purpose. And I feel that honorable members who value state rights reserved [start page 1736] to the states, who value the preservation of the individuality of the states for state purposes, will agree with me that it is with the state we ought to leave this power, and that we ought not to intrust it to the Commonwealth. For instance, our factory laws are left to the state.
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45 The latter one reflects how misconceived the 14-11-2006 High Court of Australia judgment was in regard of Industrial Relations legislation by the Commonwealth of Australia. 50
Tax deductions for religious schools and other religious entities are then also prohibited! 5 It should be noted that the Framers of the Constitution did very much consider treaties, etc but restricted it to those powers otherwise provided for in the constitution to the Commonwealth, and no more. His Honour CALLINAN J stated; 10
QUOTE 867 I am quite unwilling to attribute to the founders the limited vision and foresight which the passage quoted attributes to them. They were greatly concerned with international affairs, including, in particular, regional affairs[1139]. Discourse about international affairs, agreements and treaties, albeit predominantly about mutual resistance to aggression, throughout the 19th century was intense and prolonged[1140]. Shifting alliances made by treaties and otherwise, and the need for international cooperation and a body such as the League of Nations were not new ideas in 1919 [1141]. The century before federation was a century of many wars between both large and small belligerents. In 1900 Australia aspired to be a nation of significance. The founders did not intend it to be tied to the apron strings of Britannia for ever. Otherwise there would have been no need for an external affairs power at all, or at least one as expansive as the power in terms is. 868 The Commonwealth also relies on the passages from Mason J that I have quoted for the submission that implications may not be drawn from the "federal balance". I have rejected that submission. Much more was drawn from less by this Court in Lange[1142]. These further points should be
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made. His Honour's statement was made before Cole v Whitfield which approved recourse to the Convention Debates in the passage that I have quoted elsewhere[1143]. Such recourse would have revealed to his Honour the founders' concern about the matters which his Honour said they would not have foreseen. END QUOTE
30 It should be noted that Section 51(v) indicates in particular that the Framers did consider the future but held that it would be for the people to decide by way of S128 referendum if further powers were to be given in their contemporary situations. 35 And the following statements from the Hansard records of the Constitution Convention Debates; Again;
Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON (South Australia).That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. BARTON.- I did not say that. I say that our real status is as subjects, and that we are alike subjects of the British Crown . Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Mr. SYMON.Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p397
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citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the dual citizenship. And
Mr. SYMON.. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it, the right of depriving me of citizenship.
See also for a greater set out; Chapter 006 The Constitution is a PERPETUAL LEASE? 10 See also for the following; Chapter 001 CREATION OF THE CONSTITUTION **#** Take for example the issue of Mr. David Hicks in US prison detention; 15
Hansard 2-03-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) (Chapter 33 of the CD) Dr. QUICK.The Constitution empowers the Federal Parliament to deal with certain external affairs, among which would probably be the right to negotiate for commercial treaties with foreign countries, in the same way as Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon the citizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start page 1753] could only act for and on behalf of its citizens.
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Therefore the Federal Government has a DUTY OF CARE to secure the release of Mr. David Hicks. Mr. David Hicks right of a FAIR AND PROPER TRIAL should have been the same as any American. But there is another twist to this. Because the Commonwealth of Australia, albeit unconstitutionally, joined the so called COALITION OF THE WILLING then Mr. David Hicks was as much a prisoner of the Commonwealth of Australia as that of the USA, in deed so was the late president Saddam Hussein. Meaning, that both had a legal right to have the protection of the Federal Government and as such the late President Saddam Hussein as not to be executed, in view that the European Union Human rights Act does in fact apply also the Commonwealth of Australia, just that politicians and lawyers dont comprehend this. As for Mr. David Hicks, the treaty between Cuba and the USA does not allow the holding of prisoners not involved with coaling or the navy station! Further, the 1688 Bill of Rights, 1640 Habeas Corpus also does not permit the transport of prisoners over the seas, and require the release of prisoners at the end of hostilities of the war itself. As such I can foresee that the Person purporting to be the prime minister, the person purporting to be the Minister of Defence and others in Government may just get sued in time to come. After all while the Migration Act allows the Minister to determine to detain/deport a person, constitutionally it has no legal force unless and until a State Court with a JUDICIAL DETERMINATION formally orders this. As such the navy being involved in towing unseaworthy boats into international waters also can be a crime on the high seas.
QUOTE http://www.australianpolitics.com Constitutional Conventions The Australian Constitution combines literal interpretation with convention. Whilst some sections are adhered to literally, others operate by accepted practices, often built up over centuries. A convention is not a law, but merely an accepted way of doing something. For example, the Australian Constitution, in its original form, makes no mention of the Prime Minister, the Cabinet, or political parties. These are amongst the most significent conventions. Specifically: Governor-General Section 2 of the Constitution says: " A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth..." 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p398
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In practice, the Governor-General is chosen by the Prime Minister of the day, possibly in conjunction with Cabinet. In the early years of the Federation, the Governor-General was appointed from Britain. In the early 1930s, Prime Minister James Scullin visited London in order to apply pressure on the British government to allow the appointment of Sir Isaac Isaacs as Governor-General. Isaacs eventually became the first Australian to hold the position. Since the 1960s, all Governors-General have been Australians. Parliamentary Sessions Section 5 of the Constitution says: "The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives."
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In practice, the government of the day decides when Parliament will sit. These are intensely political decisions made by the Prime Minister and the most senior members of the government and its advisers. Terms of Parliament Section 28 of the Constitution says: " Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General."
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This section is interpreted literally in the sense that no House of Representatives may continue for longer than three years. However, the earlier dissolution of the House is not decided by the Governor-General, but by the Prime Minister of the day. Officially, the Prime Minister calls upon the Governor-General to "request" a dissolution, although there are historical incidents of Governors-General rejecting or querying this advice.
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There were three occasions between 1901-10 when such requests were rejected by the Governor-General. In 1983, the Governor-General, Sir Ninian Stephen, sent the Prime Minister, Malcolm Fraser, away with instructions to provide detailed argument in support of his request for a double dissolution of the Parliament. Executive Government Conventions Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It makes no mention of the Cabinet, political parties or the Prime Minister: o Section 61 states: "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." In practice, it is the Cabinet, led by the Prime Minister, which performs this task. o Section 62 states: "There shall be a Federal Executive Council to advise the GovernorGeneral in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure." In practice, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them in as ministers. The Executive Council operates in accordance with the Constitution, but the GovernorGeneral always acts on the advice of his ministers.
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Section 64 states: "The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth." In practice, the Prime Minister is the person who leads the party with a majority in the House of Representatives. The ministers are chosen by the Prime Minister who advises the GovernorGeneral of the names and portfolios to be allocated to them.
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It was this section of the Constitution that the Governor-General used to dismiss the Whitlam Government in 1975. This is the only instance in Federal political history of the Governor-General exercising the so-called Reserve Powers in this way. o
Section 68 states: "The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative." In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.
Appointment of High Court Justices Section 72 states: "The Justices of the High Court and of the other courts created by the Parliament.. shall be appointed by the Governor-General in Council."
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In practice, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a meeting of the Executive Council. There is no known instance of the Governor-General attempting to influence these decisions.
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END QUOTE http://www.australianpolitics.com * Gary, you are still on about the OFFICE OF THE GUARDIAN? **#** Answer; INSPECTOR-RIKATI, persistency will in the end pay off. I have no doubt that in time a constitutional council will be created when they realise that they did it wrong for so long and the consequences no longer can be avoided. Just read the enclosed correspondence. Hansard 17-3-1898 Constitution Convention Debates Mr. DEAKIN.In this Constitution, although much is written much remains unwritten This is why we need an OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the People, the Parliament and the Courts as to constitutional powers and limitations. Then this OFFICE OF THE GUARDIAN can expose what is embedded in the Constitution! Take for example Prime Minister John Howard (Australia) bringing up some bold plan to spend about 10 billion dollars on water management issues, that is provided the States hand him legislative control over water. * Well, isnt that good? **#** Answer; Considering that the constitution already for over 100 years have given legislative powers to the Commonwealth of Australia to determine reasonable use of water and even so Malcolm Turnbull the new Minister for Water seems to claim that it has been over-allocated since the midst of the 20th century, somehow nothing was ever done by the commonwealth of Australia to legislate for reasonable use. So, now they embark upon seeking more legislative powers, and so strip the States of their powers even so they cannot even manage the legislative powers they already have. * What are the Premiers of the states stating?
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**#** Answer;
Some seem to agree already, because it appears to me they see dollar signs rather then to comprehend that constitutionally they have no powers to give away legislative powers of the State. This is why they need an OFFICE OF THE GUARDIAN, in each and every State and federally, so finally they can make some sense about constitutional powers and limitations already existing. Take for example Premier Steve Bracks who seems to argue that as long as the Federal government will operate as the States desire then he has no particular objection to refer legislative powers to the commonwealth of Australia. * What is wrong with that? **#** Answer; Well, once the Commonwealth of Australia has the legislative powers then it can do as it likes as the States will have no further control. Somehow State Premiers have the view that they can take back powers they referred to the Commonwealth of Australia, just that it isnt that way at all. Once referred to the Commonwealth of Australia then that is the end of it.
Hansard 27-1-1898 Constitution Convention Debates Mr. DEAKIN.Another difficulty of the sub-section is the question whether, even when a state has referred a matter to the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of amending or repealing the law by which it referred the question? I should be inclined to think it had no such power, but the question has been raised, and should be settled. I should say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not be possible for it afterwards to revoke its reference.
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25 Yet, despite this, States continue to refer powers with clauses that it is revocable. * Why is that? 30 **#** Answer; Because Premiers simply havent got a clue what is constitutionally appropriate and regardless if they are lawyers or not, unlikely would ever have researched the Hansard debates to try to find it all out. Members of Parliament are elected by the electors not because of their constitutional abilities but merely because they happen to be standing in an election, because they were some famous sport star, etc. As such, their skill in constitutional issues is more then likely next to nothing. Even those who are lawyers may never have practice constitutional issues. Look at the issue of Australian citizenship which is a kind of citizenship you obtain when becoming a State citizen and includes a persons political rights such as franchise, yet, the Commonwealth of Australia declared it to be some Australian nationality. * What is wrong with that? 45 **#** Answer; Well consider the following;
Hansard 2-3-1898 Constitution Convention Debates Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the States. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth .
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(And in regard of citizenship;)

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Mr. BARTON.I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of that federal citizenship, we were not in any way interfering with our position as subjects of the British Empire. It would be beyond the scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. If we are going to give the Federal Parliament power to legislate as it pleases with regard to Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant by the term "Trust the Federal Parliament." And Mr. BARTON.We are all alike subjects of the British Crown.
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15 It must be understood that Edmund Barton was born in NSW, Australia, and later became Prime Minister of Australia. So, while the Framers of the Constitution specifically refused any legislative powers for the Commonwealth of Australia to define/declare citizenship, the Commonwealth of Australia simply nevertheless legislated in regard of citizenship and purported to make it all being different. * What is the harm? 25 **#** Answer; Well, for example, children born to aliens, who are constitutionally born within the realm of the King/Queen and so are and remain subjects of the British Crown now are being deported as STATELESS! On 19 July 2006 I successful challenged the validity of the Australian Citizenship Act 1948 to define/declare citizenship, and it was and remained UNCHALLENGED in a 5-year legal battle with the lawyers of the Federal government, and my appeals succeeded. In fact I challenged numerous other constitutional issues, such as the compulsory voting that is unconstitutional and again I succeeded in it. * So, why then does the Federal Government not rectify matters? **#** Answer; Because they have put themselves a law above the Constitution! The Federal government appoints the judges to the High Court of Australia and so there is that bias. It is therefore extremely difficult to have constitutional provisions and limitations enforced as the Federal Government and also the States flaunt the Constitution as it pleases them. And this is why we need an OFFICE OF THE GUARDIAN that will without political bias, state what is constitutionally applicable to anyone. * Surely the judges can do that? **#** Answer; Look, I have researched many of the High Court of Australia decisions and many I found were an absurdity. The judges themselves not even comprehending what is Australian citizenship. One judge even abstained from handing down a judgment making known he didnt know what was constitutionally appropriate. * What?
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**#** Answer; Yes, they appoint judges who may never have done any work in constitutional issues. 5 * But, isnt the High Court of Australia primary issue to deal with constitutional issues? **#** Answer; Yes, but there appears to be no formal training in that respect. The Framers of the Constitution referred to the High Court of Australia to be the Guardians of the Constitution, fat chance, where they lack to comprehend even an issue such as Australian citizenship and what it stands for. If there was an OFFICE OF THE GUARDIAN then it would have the ability to present to judges the complete relevant history of certain constitutional issues and even could challenge the government or any State premier if any of them contemplated unconstitutional legislation. * What is this making a difference to the man on the street? **#** Answer; Currently, the ordinary person on the street would need more then likely several hundreds of thousands of dollars to try to challenge any unconstitutional conduct, and as such forget about that ability. Hence, more then likely unless some rich company takes on the Government, the Government gets away with any unconstitutional conduct, whereas if there was an OFFICE OF THE GUARDIAN then it could take up the matter and we would still have enforcement of constitutional powers and limitations without some poor devil being caused to pay a lot of legal cost where his case was railroaded by the judges. With premiers willing to hand over legislative powers disregarding any referendum for the people to have their say, as is constitutionally required, it is going from bad to worse. With an OFFICE OF THE GUARDIAN these and numerous other issues can be resolved without having people for example being detained/deported unconstitutionally. There is basically a total breakdown in DUE PROCESS OF LAW where some Minister or some bureaucrat can have a person deported, regardless that person having been lawfully in the Commonwealth of Australia but merely because they cannot bother to follow proper legal procedures the Framers of the Constitution stipulated were to be followed. The issue is we must protect the constitutional and other legal rights of any person, regardless of their standing in society! With an OFFICE OF THE GUARDIAN we may achieve this better. * Gary having done all this work and considering the wrongful appointment of the governorGeneral who in turn is appointing Judges and also Members of parliament and considering that the High Court of Australia judges all lack their constitutional Australian citizenship how would you sum up then their judgment also in that regard about the WorkChoices legislation of 14 November 2006? **#** An utter constitutional mess! And that is precisely what my case on appeals before the County Court of Victoria was about, and I succeeded UNCHALLENGED on all constitutional issues I raised, including those but not limited to those stated in the Section 78B NOTICE OF CONSTITUTIONAL MATTERS, and as such the Court should attend to all this and seek to address matters before making it a further legal soup! COMMENT This document has exceeded my intentions as to volume by more then double but to cut it down for this Chapter may not be right, hence I have left it in the manner it was compiled other then to have reduced it with certain quotations of Chapters and instead refer to the Chapter as such. Numerous other issues are at hand but have been left out (but are on the CD issue), as it would too much increase the volume of this Chapter. However, it must be understood
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that this Chapter must not be deemed to address all issues and relate to all relevant material but is merely an indication that there is something drastically wrong how the High Court of Australia allowed, with I view with a disregard of proper research relating all relevant matters, the Amendment Act regarding WorkChoices legislation to be deemed constitutional valid. As per my 5 November 2005 post (see page140) the Bill was not appropriately voted upon and therefore constitutionally invalid! Upon this the High Court of Australia also should have declare the legislation ULTRA VIRES (NULL AND VOID) , as the Framers of the Constitution made clear (and so embedded in the Constitution) it could do so lacking proper process having been followed.
END QUOTE Chapter 022A Failure of the case
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The following may also indicate the danger caused by the Sue v Hill decision where now the High Court of Australia somehow seems to hold that the Parliament can order the killing of every blue eyed baby (no longer limited by the original constitutional restrains of the legal principles embedded in the constitution), whereas within the true meaning and application of the constitution this would not be permissible/possible.
INSPECTOR-RIKATI on IR WorkChoices legislation, A book about the validity of the High Courts 14-112006 decision ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour) QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
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Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED * Gary, what is your view about McHughs statement ? 25 **#** INSPECTOR-RIKATI, how can anyone put the Court in disrepute when you have such idiotic statement of a judge. Well, I have put my bit on the Internet about it. In my view considering that statement the parliament should have moved to have him removed from the bench as soon as he made that statement. If this is the kind of mentality and intelligence that we can expect from judges of the High Court of Australia then I think we might as well appoint one of my grandchildren to the bench and at least they be rather playing with toys and crayons and say nothing sensible then the utter rubbish that we now had. And this kind of intelligence, or the lack thereof, is used to deal with constitutional matters, no wonder wee are going downhill! index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635
QUOTE 070520 posting I am very disturbed to find the following of a quotation to have found this discussion;
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QUOTE McHUGH J: I understand that and persons who have not had full legal training often think of Magna Carta and the Bill of Rights as fundamental documents which control governments, but they do not. END QUOTE QUOTE But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to. END QUOTE As a "constitutionalist" (not some lawyer who is brainwashed) I condemn any one, in particularly judges, to undermine the constitutional system that exist in the POLITICAL UNION BEING THE Commonwealth of Australia. The Commonwealth of Australia, as like the European Union, is created by Statue and itself has no common law. Hence, any jury that were to be involved in federal hearings must be drawn from a State. As author of the INSPECTOR-RIKATI books in regard of constitutional and other matters I have set out extensively how I succeeded and defeated Federal Government lawyers after a 5-year legal battle on all constitutional issues I raised! p404 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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The Commonwealth of Australia Constitution Act 1900 (UK) was an act to create a "APOLITICAL UNION" and the States who partly federated retaining all legislative powers regarding "CIVIL RIGHTS" as it was their constitutions that were based upon the provisions of the Magna Carta, Bill of Rights, Habeas corpus, etc. In the Commonwealth of Australia, judges are appointed to the High Court of Australia regardless lacking any competence in constitutional matters, in fact they may never have practiced in constitutional matters, and in one incident a judge actually refused to hand down a judgment other then to state he didn't have any knowledge in the constitutional matter before the court and for this would abstain from handing down a judgment. You find it as a matter of record that where the Governor-General was Defendant in a case before the High Court of Australia then all 7 judges subsequently fraternised with the governor-General, and no one has to be surprised the Court subsequently refused to allow the case to be heard upon its MERITS. In the Commonwealth of Australia judges are purportedly appointed by the Governor-General but he merely appoints those who the Government provides to be appointed. Hence a political stacking occurs.
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The High Court of Australia in 1996 using their powers as a "persona designata" to make decisions for the parliament, approved of the entire constitution to be replaced by the Australia act 1986 (forget about it being constitutionally valid) so that there no longer is a "constitutional Parliament" but the parliament now is above the constitution. As it now legislated the (purported) constitution. But, I successfully challenged this validity of this De Facto Constitution in Court. Having myself served in the NATO at the then IRON CURAIN having been trained as a sharpshooter, I personally deplore the usage of weapons, as I am trained to use it to kill. However, I recognise the right of others to bear arms, for defending their rights, and even the Framers of the Constitution (Australia) indicated that militia could be drawn from civilians of a State after the federation was created. This to me implied that the commonwealth of Australia would have been able to enlist armed civilians to serve at that time to protect the shores of the Commonwealth of Australia until it could set up its own defence force. There are always terrible incidents involving firearms that stand out. Likewise there are also terrible incidents where motor vehicles are standing out in having resulted to mass killings. Personally, I would prefer not a single person to have a firearm, but then I have to recognise that others may desire that everyone should have a weapon to defend himself/herself.
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My wife, opposed me to even fit a knife sharpers on the kitchen wall, but wanted me to hide it in a pantry, as she fears that someone might come in the residence and see the knives and use it wrongly. Surely, we are not going to ban all knives in the world?
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When anyone desires to exercise a right then the person must also accept there are obligations. Hence regulations as to the storage, handling and usage of a firearm should be deemed to be appropriate where it provides for what is locally required.
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Therefore, while a person may have the right to own a firearm, the Parliament rightfully could legislate to have the usage, carrying, etc made subject to conditions. Where there is a constitutional right, implied or otherwise, that a person may bear arms to defend himself then I view one cannot limit the usage of a weapon to be some small handgun, a tank, or a warplane, as depending what your personal conditions are you may need one or another, without having any intention to use it against other civilians. The Supreme Court (USA) has extensively decided cases regarding infringements of RELIGION and I for one admire the Courts numerous judgments I read. If the same kind of logic was used regarding the right to bear arms, then I view likewise both parliamentarians and civilians should accept this kind of reasoning.
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I for one do not desire to use a weapon, do not like them being used, but that are my personal views, and I recognise others have total opposite views. They have their right on their opinion as much as I have and as such I view that the concentration should not be as to how to make inroads to the rights of others, but rather how can we facilitate the rights of others without that our own rights (including that of personal safety, as not to be held up by some crazy gunman) jeopardised needlessly. p405 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
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In particular those of the law enforcement who are risking their lives daily to protect innocent citizens of harm they must not unduly be jeopardised in their law enforcement positions because inappropriate regulations allow anyone to obtain a weapon. While many people argue about the right of freedom of religion, the right to bear arms, few do actually concentrate on the issue of right of freedom of travel, even so this likewise was protected by old English law.
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Not to many people argue that their right to travel is denied where they must first have a driving licence to drive a motor vehicle, where as no kind of driving licence existed to drive a cart-and-wagon. As such, somehow we have accepted inroads to our guaranteed freedoms because society allowed for this where as in regard of weapons we may have different positions pending the local society we reside in. In my view, the right to legislate that a person should not be allowed to bear arms cannot be justified on a court decision, as if the freedom to bear arms is guaranteed then I view not a court in the land could possible make an order contrary to it. We therefore may have to look at the constitutional framework as to what was existing at the time each constitution was created and if the conditions then existed that a Court could actually have denied a person to bear arms. If in history it can be shown that certain persons were denied by the local authorities to bear arms, then it must be accepted that the Constitution albeit if it provides for the right to bear arms then was created upon the understanding that such implied freedom was at all times deemed to be subject to court judicial decisions and or legislative powers. As a "constitutionalist" I find it laughable how judges, despite their extensive legal training, can come up with such utter and sheer nonsense such as McHugh J did with his statement ; QUOTE
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But Parliament - some people would regard it as regrettable - can, in effect, do what it likes. As it is said, some authorities could legislate to have every blue-eyed baby killed if it wanted to. END QUOTE As no such constitutional system operates that would allow the parliament to enact such laws. And there I have to come back upon the other quotation; QUOTE McHUGH J: I understand that and persons who have not had full legal training often think of Magna Carta and the Bill of Rights as fundamental documents which control governments, but they do not. END QUOTE Lawyers are being trained in legal studies by other lawyers and as such are brainwashed far to often that some LEGAL FICTION is FLEGAL REALITY> As I exposed in my book published on 30 September 2003 INSPECTOR-RIKATI on CITIZENSHIP
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A book on CD about Australians unduly harmed. ISBN 0-9580569-6-X (prior to 1-1-2007) ISBN 978-0-9580569-6-0
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There is no constitutional powers for the Commonwealth of Australia to define/declare "citizenship" as Australians are constitutionally "subjects of the British Crown". Citizenship is a " POLITICAL POSITION" of rights, including franchise, and has absolutely nothing to do with "nationality" yet the High Court of Australia goes on as if it is a nationality. In court, on 19 July 2006, I defeated the Federal Government lawyers also on this matter. Hence, having has a legal study and having obtained law degrees in itself will not prove you are not brainwashed by LEGAL FICTION but more then likely you are.
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Hence, the work as a constitutionalist is to expose this. 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p406
Only when we are dealing with LEGAL REALITY and have appropriately explored the constitutional basis upon which constitutional rights, implied or otherwise, were provided for in the constitution can we commence to address the issues such as the right to bear arms, etc.
And to make clear, no Parliament in the Commonwealth of Australia has any legislative powers to allow the killing of blue-eyed babies or for such kind of nonsense, as none of the State constitutions could allow for such legislative nonsense as they are all bound to make laws for "the peace, order, and good government", even so judges likewise fails to recognise this constitutional limitation. As the Framers of the Constitution (Australia) made clear the Constitution was the " new Magna Carta". END QUOTE 070520 posting
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The danger is that if some fanatical religion were to come to power in Australia it could in fact rely upon these and other stupid and irresponsible statements of the High Court of Australia and turn this Commonwealth of Australia into some murderous regime, to pursue ethnic cleansing and fund their religious schools at taxpayers expenses. Whatever may suit to today for the socalled Judeo-Christians may tomorrow suit a other fanatical religion to achieve precisely the opposite! This is what we should keep in mind, and why the Framers of the Constitution so much sought to prevent this kind of religious war to exist in the Commonwealth of Australia.
END QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED QUOTE 19-7-2006 ADDRESS TO THE COURT -County Court of Victoria Constitutionally, where the writs were invalid in 2001 then no Parliament could have been sitting, as there were no members validly elected, and therefore neither any laws can be enforced. Part of a correspondence forwarded to the Commonwealth Director of Public Prosecutions; QUOTE part of 2-8-2005 correspondence
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WITHOUT PREJUDICE 30
Commonwealth Director of Public Prosecutions C/o Judy McGillivray BA JBB 15th floor, 460 Lonsdale Street. Melbourne, Vic 3000 Tel; 96054333, Fax 9670 4295 2-8-2005
Your reference; 05101011
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Madam, Thank you for your correspondence dated 1 August 2005, received today. As I recall it, on 4 December 2002 you indicated that there was MERIT in my case and submitted to the Court to adjourn matters as to enable the High Court of Australia to deal with the S78B Judiciary Act 1903 constitutional challenge. Contrary to your assertion, this constitutional challenge has not been disposed of and remains on foot. Hence, I view, the current charge is ill conceived, as until and unless the Court pronounces in favour of the legislations I objected against, those legislative provisions remain NULL AND VOID (Ultra Vires). Your letter, dated 1-8-2005 does not refer to my 1-8-2005 correspondence to the Deputy Registrar, and this most likely because your letter may have been sent out unaware my 1-8-2005 correspondence. I would urge you to consider the reference to Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate) It is my view, of our previous contact at the Court that you pursued matters honourable, and as such my reference to Foster is not seeking to have a go at you, so to say, of past conduct as person but rather that I desire you to be upfront to the Court about the current legal mess. As you stated, I act on behalf of the Australian Electoral Commission (AEC) in relation to the charge and summons.. Now, I for one, if I were in your position would have grave concerns as to seemingly having been set up by my client to deceive the other party and the court on 4 December 2002, albeit then it being unknown to yourself, to me and the court. Again, my impression of your conduct on 4 December 2002 was that you sought to act honourable, but afterward, that is a considerable time later, I discovered that you have been, so to say, uses as a fool by your client. After all, while you did submit to the Court to have the matter adjourned person the hearing of the S78B constitutional challenge with the outstanding appeal before the High Court of Australia, your client (Australian Electoral commission) was in fact, so to say, playing a dirty game. This, as unbeknown to both yourself, my self and so also the Magistrates Court at Melbourne, already in March 2002 your client had filed for a Chamber Summons to have the appeal struck out/dismissed or whatever. In view that they did not serve 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p407
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me with the Chamber Summons the true version of it remained unknown. Then on 23-10-2002 your client then filed for a NOTICE OF MOTION, which neither was made known to you, myself and so neither to the Magistrates Court of Victoria, sitting at Heidelberg, on 4 December 2002, to have my appeal dismissed. On 3 October 2003 this NOTICE OF MOTION came before the High Court of Australia, and I had filed numerous written objections, including that I was never properly served with the NOTICE OF MOTION. The High Court of Australia did not make a formal ruling to dismiss any of my objections, as such, upon legal principles, never invoked any legal jurisdictions, but Gummow did comment that the NOTICE OF MOTION was part of the Application Book, of 19 August 2003. END QUOTE part of 2-8-2005 correspondence And QUOTE part of 2-8-2005 correspondence As I indicated above, the onus is upon the Commonwealth of Australia to obtain a Court order in its favour when legislation is challenged to constitutionally validate the legislation. I need to do no more but to make an oral and/or written objection, and do not even need to pursue litigation in that regard! It would be a gross error on your part if you were to assume otherwise. You now have the option, so to say, to sell your sole and ignore your oath made or you will not stand for being used by your client to have deceived the Court on 4 December 2002 and will seek matters to be appropriately sorted out before any further litigation is pursued against me. Your client, provided me with a form 17 Authorities of judicial decisions, but as I have set out extensively to your client, those decision were made at a time when the Hansard records of the Constitutional Convention Debates were not permitted to be used in the courts, where as since the 1992 Franklin Dam case matters are different now that the Hansard records of the Constitutional Convention Debates now are even used (albeit often in an incorrect context) by the High Court of Australia itself. Hence, whatever past judicial decisions were, they must be looked at again in view of the intentions of the Framers as expressed in the Hansard records of the Constitutional Convention Debates. In my view, where I was very much pursuing constitutional issues and used all efforts to try to have matters heard, but your client using different lawyers then already sought to circumvent this and in the end perverted the course of justice, as I view it, then I do not accept that the 20002 constitutional challenge has been disposed off. In my view, your client had an obligation to follow through with the constitutional challenge to be determined by the High Court of Australia, and have the lawyers it used representing in the High Court of Australia to make known to the Court that there was a 4 December 2002 order on foot for this constitutional challenge. As your client used deceptive conduct to not just frustrate but to prevent the constitutional challenge to be heard and determined, then your client hardly could have the benefits of the fruits sowed by this deceptive and misleading conduct. Neither do I accept therefore your proposition that the 2002 case be joined, as this is a case that must be dealt with first of all in its own right before the 2004 alleged failure to vote is to be dealt with. After all, if in the end my case were to be found proven, and there is no obligation to vote, then clearly the 2004 issue would not arise. Further, if indeed the 2001 election was unconstitutional then obviously the subsequent 2004 election would be unconstitutional. As they say in legal principles, no subsequent court order can validate an court order made without legal jurisdiction! END QUOTE part of 2-8-2005 correspondence And
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QUOTE part of 2-8-2005 correspondence As I was a candidate in the (purported) election, it ought to be obvious that no court ever had to deal with a candidate objection to vote as having to vote for those he/she stood against. Hence, in that regard also, no authority of the past can be relied upon as being a proper authority! Just consider yourself to apply for becoming a partner in a law firm, and you then having to elect other lawyers who also want to become a partner in the same law firm as to determine that the one with the most votes will get the partner ship! Would that not be a nonsense? Well, so is the unconstitutional demand to for me to vote for those candidates I oppose and stand against! In my view, I should not be the one having to pursue all kinds of litigation what really is the task of the Australian Electoral Commission, as to ensure that it conduct FAIR and PROPER elections within the constitutional framework the Commonwealth Electoral Act was to have been enacted. As the Framers made clear, if the Commonwealth were to have constitutional powers to define/declare citizenship then it could in effect interfere with the political rights of an elector in a State. By this prevent electors to vote in State lections and by this cause the abolition of the States! Could you as an OFFICER OF THE COURT really lend your hand to allow this undermining of State legislative powers to not just occur but to participate in p408 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com
this, if not directly then indirectly, by assisting your client in the disgraceful manner of having misled the courts, yourself and myself? Why on earth did your client conceal from the Court on 4 December 2002 about what it was doing in the High Court of Australia? Surely, their ulterior motives ought to be investigated? END QUOTE part of 2-8-2005 correspondence END QUOTE 19-7-2006 ADDRESS TO THE COURT -County Court of Victoria
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I cannot state it often enough that I comprehensively defeated the Commonwealth of Australia on all issues I had placed before the Court on 19 July 2006 and not one issue was challenged by the Commonwealth of Australia or for that any Attorney-General. The practice is simply to refuse in every way to litigate these issues so that politicians and judges slowly bit by bit can continue their terrorism upon Australians. THIS MUST STOP!
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Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. HIGGINS.-Clause 55 says that such a law would be invalid. I am speaking from some little experience in our local Parliament. A Charities Bill was introduced, and it was proposed to raise the money for the charities by means of a sports tax, and additional rates upon ordinary lands and buildings. Supposing that money was required, and the House of Representatives said that it should be raised by a tax upon lands, the Senate might then say-"Oh, no, we can raise the same amount of money by means of a tax on sports and lands." That suggestion could not be made, because if it were adopted there would be two subjects of taxation in the Bill and the law would be invalid. I will take another instance: It is provided that laws imposing taxation shall deal only with the [start page 2024] imposition of taxes. Under that provision the Senate can make no condition to a law imposing taxation, and it will have to accept the taxation as it stands, or not at all. The law will otherwise be treated as invalid, and the taxpayers could then re-fuse to pay anything. Then sub-section (3) says-"A law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation." END QUOTE
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Despite this we now have the GST (Good and Service tax) but uncontrollable being used by traders, where the ATO (Australian Taxation Office) made known to me it has no proper records of any GST I have been charged because it is in the hands of merchants, etc. Indeed, as I discovered, traders can charge GST and then just keep it for themselves in many instances. As such the GST is a tax for the traders/merchants, etc and not for Consolidated Revenue Funds. While much may be and actually is argued that other countries have such kind of taxation the reality is they do not have a constitution as we have! What therefore may be constitutionally permissible in other countries may not be permissible in the POLITICAL UNION named Commonwealth of Australia!
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Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if necessary, to give up the subject's right of appeal; but I emphatically assert that there should be a right of appeal from the decision of the High Court in regard to this Constitution, a Constitution embodying novel provisions and giving important powers, including the power of the Federal Court to review the procedure of Parliament. The Federal High Court is empowered to-declare a law passed by both Houses and assented to by the Crown ultra vires, not because the Legislature has exceeded its jurisdiction, but because of some fault of procedure.
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This is not to hold that the judiciary must take a political view upon procedures but rather that the process, such as having a Bill presented to the Parliament more than once is a requirement that must be upheld.
With the so called Cocopop tax the Senate rejected the Bill only for overnight to then accept this, even so the Constitution demands that a Bill rejected cannot be presented again until the next session or at least 3 months have passed. Hence, this legislation is unconstitutional. But to whom does one go to seek this and numerous other unconstitutional legislation to be declared ULTRA VIRES where the courts I view are corrupted by so to say politicians lapdogs I can and do place matters in writing in submissions as well as in my published books as shown below about the issue of the so called Fair Pay commission but surely no one can expect me to sacrifice everything and for ever be embattled in litigation about untold unconstitutional legislation and other unconstitutional conduct and so I view the Privy Council is the best venue for addressing such issues. However my submissions about the rights of employees within State borders can be found also in the following publications; INSPECTOR-RIKATI on IR WorkChoices Legislation (Book-CD) A Book about the Validity of the High Courts 14-11-2006 Decision ISBN 978-0-9751760-6-1
CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000 CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711ghHigh Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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INSPECTOR-RIKATI & What is the -Australian way of life- really? A book on CD on Australians political, religious & other rights ISBN 978-0-9751760-2-3 was ISBN 0-9751760-2-1 Published 6-7-2006
CHAPTER 01A CORRESPONDENCE/FRM/FAIR PAY COMMISSION/ FURTHER READING MATERIAL /060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000 CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages
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CHAPTER 01A/FRM/JOHN HOWARD 0262734100/FRM/040711gh-High Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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INSPECTOR-RIKATI on the battle SCHOREL-HLAVKA v BLACKSHIRTS For the quest of JUSTICE, in different ways. Book on DVD. ISBN 978-0-9580569-4-6 was ISBN 0-9580569-4-3 Published 17-3-2007
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CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc 22-2-2014 G. H. Schorel-Hlavka O.W.B INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Fax 03 8692 2727 Email: admin@inspector-rikati.com p410
Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000
CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ FRM/040711ghHigh Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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INSPECTOR-RIKATI & How to lawfully avoid voting (CD) A book on CD about Australias federal election issues & rights ISBN 978-0-9751760-4-7 was ISBN 0-9751760-4-8 Published 28-3-2007 15
CHAPTER 037A CORRESPONDENCE/FRM/26-FAIR PAY COMMISSION/FRM/060612-Fair Pay Commission submission.pdf The email has a time and date recorded as follows; Monday, June 12, 2006 01:21 am CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 050726jh.doc Confirmation of the email forwarded and a copy received by me is dated; Date: Tue, 26 Jul 2005 00:01:50 +1000 CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/040702jh.doc Facsimile records show it was faxed successfully at the recorded time 6:05PM on 2/07/04 9 pages CHAPTER 037A CORRESPONDENCE/FRM/ 39-JOHN HOWARD 0262734100/FRM/ 040711gh-High Court deception.doc Confirmation of having forwarded it by email was received Date: Sun, 11 Jul 2004 23:42:54 +1000
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I may also indicate that in my published book on 30-9-2003 titled; INSPECTOR-RIKATI on CITIZENSHIP A book on CD about Australians unduly harmed. ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X The following documents refer to factory laws also;
GHSH-10-Race-isolation-disqualification-etc.doc
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Chapter 02 - 1898 Convention re Citizen-Subject.doc Chapter 00B Set out about CITIZENSHIP.doc Chapter 00J CITIZENSHIP-COMMON LAW.doc
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Chapter 00K Citizenship, etc.doc
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Of this book 4 copies were provided to the High Court of Australia on the day of publication and a further 4 copies were provided to the High Court of Australia about 4 weeks later. As such, the High Court of Australia had been provided with a total of 8 copies of this publication and so its content. It was the Queensland Court of Appeal in November 2003 that subsequently overturned the convictions of Pauline Hanson and David Ettridge having about word for word used the set out I had in my book as to why the convictions were errors of law, etc. The current Attorney-General George Brandis himself was reported to have referred to Mr John Howard while he was Prime Minister to be a lying rodent. The fact that John Howard perhaps might take it personally that someone may question the honesty of certain people, and considering that the term lying rodent came from his own party member and fellow Minister Senator Brandis then why on earth should a person using
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FREEDOM OF SPEECH held to be legally accountable for allegedly stirring religious divisions, whereas the murderous conduct of an unconstitutional invasion somehow is not worthy to be dealt with. 5 I am well aware that Her Majesty has no position to personally interfere into political matters but can exercise Her Majestys prerogative powers to place these and other matters before the Privy Council. I maintain I am a Subject of the British Crown and remain entitled upon this and so my right to have the matter heard and determined by the Privy Council.
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I am well aware that these matters are very complex and hence sufficient and appropriate time should be provided to have these matters Addressed by the Privy Council. However as quoted above no cost should be to me to pursue this matter before the Privy Council and hence I view the Privy Council could issue an interim order that the Commonwealth of Australia is to pay all cost relating to these proceedings (litigation) including any out of pocket expenses for me to present and pursue these matters before the Privy Council including any legal cost for any assistance I may require as to prepare the above stated and any other details/material I may rely upon to be placed before the Privy Council. As I understand it many have given up on the idea that somehow we can get matters back to what the true meaning and application provides for and for this I view it is essential that these matters referred to above are appropriately considered by the Privy Council. Lacking this I expect that a VELVET REVOLUTION may eventuate with a complete new constitution by which the People can have better guarantees as to their constitutional rights and privileges. As I always say: Forget about my spelling and other grammatical errors just consider the real issues referred to and deal appropriately with them. While various quotations are repeated in this document I held it better not to take out some quotations as it may disturb the reading of what is written and intended to be conveyed. This request/submission must be understood to be very limited, despite of the number of pages already provided, because I am a person who views that to place an argument one needs to back it up with relevant details such as quoting the Framers of the Constitution and not merely assume things as I view most lawyers/judges/politicians are doing. I look forwards that this Royal Commission addresses matters appropriately without fear or favour to any political party/person, for so far it has jurisdiction to do so. This correspondence is not intended and neither must be perceived to refer to all issues/details. Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)
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MAY JUSTICE ALWAYS PREVAIL

(
Our name is our motto!)
p412

20140222-G. H. Schorel-Hlavka O.W.B. To HM Queen Elizabeth II - Various Issues

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20140222-G. H. Schorel-Hlavka O.W.B. To HM Queen Elizabeth II - Various Issues

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WITHOUT PREJUDICE

Her Majesty The Queen Buckingham Palace London SW1A 1AA

EITHER WE HAVE A CONSTITUTION OR WE DONT!

As to who declares war onto any country:

QUOTE 16-7-2002 correspondence to the then Lt Gen Peter Cosgrove

DLM 210 DLM 306

DLM 416 DLM 509 DLM 668

DLM 7 DLM 826

DLM 951 DLM 1005 DLM 1127

Some of the Students listed; (I WILL NOT LIST ALL OF THEM)

In the same correspondence I did also refer to: 20

Queensland Consolidated Acts

ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)

Commonwealth of Australia Constitution Act 1900 (UK)

Subject: Fwd: re superannuation, etc.

END QUOTE EMAIL 2-10-2006

QUOTE 13-9-2013 CORRESPONDENCE Mr Tony Abbott Tony.Abbott.MP@aph.gov.au

QUOTE 20-9-2013 CORRESPONDENCE Mr Malcolm Turnbull, Minister Malcolm.Turnbull.MP@aph.gov.au

Commonwealth of Australia Constitution Act 1900 (UK)

day on which he takes his seat.

MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)

This is the kind of judges we have in the Commonwealth of Australia.

Notes about the list below:

Org Code Abbreviation 142N LGSANSW

Name Local Government and Shires Association of New South Wales

END QUOTE http://www.e-airc.gov.au/142N/ QUOTE

Financial Reports Annual Returns List of Organisations

If you have any queries: Phone: (02) 8374 6666

END QUOTE http://en.wikipedia.org/wiki/AusAID QUOTE

What's your opinion? END QUOTE

Canberra, ACT, Australia

1,652 (at April 2013)[1]

Hon. Julie Bishop, Minister for Foreign Affairs and Trade

Ewan McDonald, Acting Director-General (Until 31 October 2013)

11. 12. 13.

17. 18. 19. 20. 21.

Email Facebook5 Twitter1 LinkedIn Google

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2 Comments on Australian trade unions. The Royal Commission we had to have

Great dissenter takes a swipe at 'closed minds' of the bench

March 16, 2013

The enemy within, a lecture by Justice Heydon

Heydon, please see the attached invitation.

To register for this event please contact Jane Webber, Jane.Webber@herbertsmith.com.

The Eureka Stockade Oath 40

Royal Commission into governance and corruption

a. b. i. ii. c. d. i. ii. iii. iv.

QUOTE Mr. DEAKIN.-

Hansard 8-3-1898 Constitution Convention Debates QUOTE

Taxation; but not so as to discriminate between states or parts of states

Hansard 20-4-1897 Constitution Convention Debates QUOTE Mr. HIGGINS:

I will now refer to Foster. 35

To me this also applies to any judicial officer. From The Age

Mixed feelings on promise of trade deal, The Australian, 05 February 2014

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The following have been cited as examples of judicial activism:

Commonwealth of Australia Constitution Act 1900 (UK)

49 Privileges etc. of Houses

Commonwealth Electoral Act 1918

353 Method of disputing elections

The High Court of Australia however stated the following: