20150109-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Retrospective Legislation-Terrorism

1
WITHOUT PREJUDICE
Mr Tony Abbott PM
9-1-2015
C/o josh.frydenberg.mp@aph.gov.au
Cc:
Bill Shorten Bill.Shorten.MP@aph.gov.au

Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Senator George Brandis senator.brandis@aph.gov.au
Matthew Johnston matthew.johnston@news.com.au
David Hurley david.hurley@news.com.au
George Williams george.williams@unsw.edu.au
Jessdica Marszalek Jessica.marszalek@news.com.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
10
15
Ref; 20150109-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re retrospective legislation-terrorism
20
Tony,
As a CONSTITUTIONALIST my first concern always is the true meaning and
application of the constitution.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA
27 (17 June 1999)
QUOTE
Constitutional interpretation
25
1.
30
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 someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
35
END QUOTE
40
When I read judgments such as University of Wollongong v Mohamed Naguib Fawzi Ahmed
Metwally & others [1984] HCA 74; (1984) 158 CLR 447 (22 November 1984 Located at
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1984/74.html?stem=0&synonyms=0&query=retrospective
45
Then what seems to be evidently clear is that the judges since federation lacked to understand
what the true meaning and application of the constitution really was.
.
I am horrified to read that judges in that case had such a diversion of opinions after then the
constitution existing for about 84 years.
None of the judges appeared to understand the true meaning and application of s109 of the
constitution (Commonwealth of Australia Constitution Act 1900 (UK)!
p1
9-1-2015
Mr 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 E-mail INSPECTORRIKATI@schorel-hlavka.com See also www.schorel-hlavka.com at blog Http://www.scribd.com/InspectorRikati
10
2
The reason for this more than likely is that because judges are appointed to the High Court of
Australia not because of having passed some examine about constitutional matters but often
because of political friends in a Government of the Day. Judges are appointed most likely to rule
to what the Government of the Day may desire then and in the future. As I understood it on at
least one occasion a judge (refer to as H) refused to hand down a judgment upon the basis of
not knowing the constitutional matter and with 3 judges in favour and 3 judges opposing the
appeal the appellant lost his case. In my view no person should be appointed as a judge to sit in
judgment in regard of constitutional issues without having completed an appropriate training
about constitutional matters.
Hansard 19-4--1897 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
15
20
25
30
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.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
35
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.
END QUOTE
40
45
50
It is therefore clear that the Framers of the Constitution didnt favour retrospective legislation but
appeared to recognise that at times it might be applied.
A very serious misconception is by the judges that they view that s109 allows states to legislate
as concurrent even so the Commonwealth has already legislated., provided it is not in conflict
with any Commonwealth legislation. Likewise that when commonwealth law is abolished then
any state law that was previously in existence would have been invalid (sterilised) while
Commonwealth law existed but would be back in force the moment the Commonwealth law was
abolished. Below the quoted correspondence 20150108--G. H. Schorel-Hlavka O.W.B. to Mr
TONY ABBOTT PM-Re election issues explain some of the relevant issues. For example
Land taxation became a Commonwealth legislation operating from 11 November 1910 and
considering that in Sydney Council v Commonwealth (1904) the High Court of Australia held
that rates charged by municipal/shire councils were a delegated State taxation powers of land
taxation then clearly as from 11 November 1910 no further could municipal/shire councils
exercise any delegated State taxation powers because the States themselves has no longer this
legislative power to charge land taxes.
p2
9-1-2015
10
15
20
25
3
It is also a very legal principle that all taxation collected by and/or on behalf of the
Commonwealth must be placed into the Consolidated Revenue Funds and can only be drawn
upon authorisation of Appropriation bills passed by the Federal Parliament. As such, besides the
failure of any delegated powers, the municipal/shire councils were obligated to place into the
Consolidated Revenue Funds of the Commonwealth any taxation it had raised as land taxes.
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/1984/74.html?stem=0&synonyms=0&query=retrospective
University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158 CLR
447 (22 November 1984
QUOTE
Secondly, it was said in Viskauskas v. Niland, at p 418, that the Commonwealth Parliament "can only fulfil
the obligation cast upon it by the Convention if its enactment operates equally and without discrimination
in all the States of the Commonwealth.
END QUOTE
It is in fact that all Commonwealth laws must provide for uniform application throughout the
Commonwealth. However, as the Framers of the Constitution recognised that this at times might
deliver a problem that the Federal Government may realise a need for different application of law
and funding it therefore also created the S101 Inter-State Commission which subject to any
appeals to the High Court of Australia was a non-political body of experts which would allocate
monies and administer laws regarding trade and commerce and such further matters as the
Parliament may provide for by legislation.
To understand the true meaning and application of s109 of the constitution I shall very briefly
outline the need for s109. Prior to federation the colonies had sovereign Parliaments however
upon federation they became constitutional Parliament.
.
Hansard 20-4-1897 Constitution Convention Debates

QUOTE
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.
30
35
40
45
50
55
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
Also, the colonies became States within s106 of the constitution subject to this constitution.
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
106 Saving of Constitutions
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the
establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be,
until altered in accordance with the Constitution of the State.
END QUOTE
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
And
p3
9-1-2015
10
15

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
QUOTE
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up the time of the
Convention, but I certainly shall move-an amendment, because the clause is not in accordance with the
general provisions of Federation. The States composing the Federation should have full power to deal
with local affairs. Essentially, all external relations are taken out of their jurisdiction. I do think they ought to
have the power themselves to say what the Constitution under which they live shall be.
END QUOTE
.
20
25
30
35
40
45
50
55

QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own borders is retained
by this Constitution, except in respect to such matters as are expressly handed over to the
Commonwealth.
END QUOTE
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that guarantee.
END QUOTE
And
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
And
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
Therefore the legal principles of responsible government not only applies to the
Commonwealth but also to the states as they are bound by the legal principles embedded in the
constitution they are subjected to. Moreover, they must have also a separation of powers as with
the Commonwealth because this is the legal principle embedded in the constitution.
The problem the Framers of the Constitution were aware of was that the colonies would have
laws on foot upon federation and how to deal with those laws when the Commonwealth came
into existence and thereafter.
So they made clear that Colonial laws would be protected after federation for so far that the
commonwealth couldnt legislate in defiance of the rights citizens had within Colonial legal
provisions provided however that such colonial laws were not amended after federation. As such
QUOTE
108 Saving of State laws
p4
9-1-2015
10
15
20
25
30
35
40
45
50
55
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the
powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the
State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of
the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the
Colony had until the Colony became a State.
END QUOTE
Colonial laws would therefore continue to exist after federation, and a State could alter and
repeal such now State law for so far Commonwealth law has not been enacted on the same
subject matter. However, once the Commonwealth legislated then within s109 Commonwealth
law in regard of the same subject matter then prevails over State laws.
QUOTE
109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former
shall, to the extent of the inconsistency, be invalid.
END QUOTE
Section 108 provides the State with the powers of altering/amending the colonial law as the
colonial Parliament had, but subject to this constitution, this as the colonial Parliament was a
sovereign Parliament whereas State Parliaments are constitutional Parliaments. Hence, the
State parliament couldnt exercise Colonial Parliament powers but could do so subject to this
constitution as a constitutional Parliament. Hence the purported 2001 Queensland
Constitution is of no legal value because it was to circumvent earlier state constitutions as to try
to exercise the colonial sovereign Parliaments rights, which clearly no longer existed. Likewise
so any State constitution that was amended since federation only can be valid if it was approved
by the majority of state electors in a state referendum. I will not delve in details about this as I
placed this before the County Court of Victoria on 19 July 2006 as a constitutional matter and
comprehensively defeated the Commonwealth in both cases and none of the state AttorneyGenerals challenged this either.
Obviously, where there could be a clash between the existing state (including old colonial laws
not amended by the relevant State) with any Commonwealth legislation the Framers of the
Constitution held that s109 would resolve matters. As such, s109 was to deal with existing
legislation at the time the Commonwealth commenced to legislate.
What judges somehow seems to fail to understand is the following:
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
QUOTE
p5
9-1-2015
10
15
20
25
30
35
40
45
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.
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
QUOTE
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.
END QUOTE
The latter while referring to reference of legislative powers the same principle applies to once the
Commonwealth legislate on any taxation matter then the States cannot legislate further and
cannot retrieve the previous legislative powers even if the Commonwealth abolish its legislation.
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
QUOTE
50
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?
55
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
Therefore, once the Commonwealth commences to legislate it become for ever a federal
legislative power, regardless if the Commonwealth may abolish its legislation on a particular
subject matter.
p6
9-1-2015
7
Clearly what the Framers of the Constitution made clear is that existing laws will remain in force
(subject to s109) ALBEIT CANNOT BE AMENDED BECAUSE ANY AMENDMENT
WOULD BE A NEW LAW.
5
Let us take an example.

A land holder is charged under commonwealth law regarding land taxation, say in 1950, and
challenge the charge upon the basis that the Commonwealth has not applied a uniform land
tax.
.
10
15
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the National
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
.
20
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
25
30
Hence, the courts would have to rule that the taxation was invalid where it failed to be
uniform throughout the Commonwealth of Australia. It would then be absurd that the land
holder having achieve his right of uniform laws could then be robbed of this because the
Commonwealth were to abolish its legislation and so the States would apply a non-uniform law
throughout the Commonwealth of Australia.
Esber v Commonwealth [1992] HCA 20 (03 June 1992) (Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.)
QUOTE
6. At common law, on the repeal of a statute by which a right or immunity is created or under which a
right or immunity arises, the right or immunity ceases to exist unless the right has already accrued or
35
the immunity has already been established or acquired. "The statements of the (common law) rule which
are most commonly cited", Fullagar J. said in Ferrum Metal Exports Pty. Ltd. v. Lang(12) (1960) 105 CLR
647, at pp 655-656,
"are those which are found in Surtees v. Ellison (13) (1829) 9 B. and C.750 (109 ER 278) and in Kay v.
Goodwin (14) (1830) 6 Bing 576 (130 ER 1403). In the former case Lord Tenterden C.J. said: 'It has been
40
long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions
past and closed) as if it had never existed'(15) (1829) 9 B. and C., at p 752 (109 ER, at p 279). In the latter
case Tindal C.J. said: 'I take the effect of repealing a statute to be, to obliterate it as completely from the
records of the Parliament as if it had never been passed; and it must be considered as a law that never existed,
except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an
45
existing law'(16) (1830) 6 Bing., at pp 582-583 (130 ER, at p 1405)."

The exception to the rule that the law must be applied as if the repealed statute had never existed was
confirmed by Dixon C.J. in Maxwell v. Murphy(17) (1957) 96 CLR 261, at p 267; see also Geraldton
Building Co. Pty. Ltd. v. May (1977) 136 CLR 379, per Stephen J. at p 400:
"This (rule) is subject to an exception, variously expressed, as to past matters. Lord Tenterden C.J. used the
50
expression 'transactions past and closed': Surtees v. Ellison(18) (1829) 9 B. and C., at p 752 (109 ER, at p
p7
9-1-2015
8
279). Lord Campbell C.J. said: '... all matters that have taken place under it before its repeal are valid
and cannot be called in question': Reg. v. Inhabitants of Denton(19) (1852) Dears.3, at p 8 (169 ER 612, at
p 614). The phrase of Blackburn J. was 'transactions already completed under it' - Butcher v. Henderson(20)
(1868) LR 3 QB 335, at p 338."
7. The principles of the common law are affirmed by s.8 of the Acts Interpretation Act 1901 (Cth) which
provides, in its relevant parts, as follows:
"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the
repeal shall not - ... (c) affect any right privilege obligation or liability acquired accrued or incurred under any
Act so repealed; or
10
... (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation
liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such
15
20
penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
To determine whether a right is "acquired (or) accrued under" a repealed Act for the purposes of
par.(c) it is necessary, of course, to ascertain the nature of the right by reference to the provisions
under which it is said to have been acquired or to have accrued.
END QUOTE
Therefore, the land holder having had recognised his rights of uniform land taxation cannot be
robbed of this. Moreover, the constitution provides for:
QUOTE
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments
of any State or States, but so that the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law;
25
END QUOTE
No equivalent constitutional provisions exist to refer legislative powers back from the
Commonwealth to the States.
30

QUOTE
Sir GEORGE TURNER.-Will you briefly restate the point?
35
40
45
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?
50
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.
p8
9-1-2015
9
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?
10
15
20
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.
END QUOTE
25
30
35
40
45
50
55
While the High Court of Australia also seemed to hold the notion that the Commonwealth
Parliament somehow could grant the States legislative powers this is a total absurdity as the
Commonwealth Parliament cannot override the constitution. It is not, even so claimed by one of
the judges a sovereign Parliament as it is and remains a constitutional Parliament that is
subject to the constitution!
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
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
p9
9-1-2015
10
10
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
.
15
20
25
30
35
40
Therefore, it is not relevant if the Commonwealth had or had not legislated, for example, upon
some speed measuring device, all that is relevant is that the Commonwealth having legislated as
to measuring device s then the states have absolutely no legislative powers to legislate new laws.
It cannot force the Commonwealth to legislate upon a certain instrument merely because one or
more States desire it to do so. Neither can the States take the law into their own hands and
legislate on any device the Commonwealth is deemed by the States having failed to legislate.
The Commonwealth merely by legislating on the subject of (xv) weights and measures has
permanently ousted any future legislative powers of the States upon the same matter. If a State
legislated on a certain matter prior to the Commonwealth exercising its legislative power then the
State legislation subject to s109 of the constitution can remain for so far not in conflict with
Commonwealth legislation, but this State legislation cannot be amended once the
Commonwealth has commenced to legislate upon this subject matter, as no new laws can be
enacted by the State.
Because the Commonwealth cannot legislate other than uniform throughout the
Commonwealth it can neither allow any State (again I do not concede a State can) legislate
differently then another state because the State legislation in effect would be part of the
Commonwealth legislation. Fancy the Commonwealth to legislate as to taxation and then grant
one particular state the right to have a different taxation law. There is no constitutional power for
the Commonwealth of Australia to legislate in such manner.
The Commonwealth cannot legislate for the States to raise different land taxes because it would
fail the requirement of uniform taxation. It is therefore in my view utter and sheer nonsense to
hold that the Commonwealth of Australia somehow could permit States to legislate while
Commonwealth law is or has been in force because as the framers of the constitution made clear
once the Commonwealth commenced to legislate then it became exclusive legislative
Commonwealth powers. If the Commonwealth had the view that the general community was no
longer to be burdened by land taxation then that was the call for the Commonwealth to make and
did so when it abolished in 1952 land taxation. It is not then for the States to defy the decision of
the commonwealth to then legislate for land taxation for which constitutionally they no longer
possessed the legislative powers.
QUOTE Sir SAMUEL GRIFFITH:
With respect to these subjects, it is not proposed to give the parliament of the commonwealth exclusive
jurisdiction; they will have paramount jurisdiction; but it is proposed that, until they exercise those
powers, the existing laws shall remain [start page 525] in force, and that, until they choose to make laws
to the contrary, the state legislatures may go on exercising their existing powers. It is only when the
federal parliament comes to the conclusion that it is necessary to make laws on those matters that the
powers of the states will be excluded, and then only to the extent to which the federal legislature
chooses to exercise its functions.
45
50
END QUOTE
55
Clearly, it was that until the Federal parliament exercises its legislative powers that the States
have to retire from that field of legislation.
.
p10
9-1-2015
11

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
.
10
15
20
25
30
35

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
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
.

QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
be exercised.
END QUOTE
Therefore, where the Commonwealth legislates upon a subject matter within s51 of the
constitution it achieves the same exclusive legislative powers as those matters listed in s52 of
the constitution, and that instant the whole State law on the subject is dead . As such, no matter what
the High Court of Australia may have claimed otherwise the abolition of the Commonwealth
legislation cannot give life back to State laws that were superseded by Commonwealth law. One
may wonder why then s109 if the whole subject matter is dead. Well, as the Framers of the
Constitution stated:
.
40
45
50
55
60

QUOTE 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.
END QUOTE
And
QUOTE Mr. BARTON.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.
END QUOTE
As such, where the Commonwealth exercise incidental powers then the States must yield to this.
For example where the Commonwealth in 2009 provided that pensions and welfare payments
would be increased by CPI (Consumer Price Index) then the States were bound to follow suit and
not increase any charges above the CPI. However, it is my view that the High Court of Australia
so to say went mad to claim that the Racial Discrimination Act 1975 was valid because as the
Framers of the Constitution stated:
QUOTE Sir SAMUEL GRIFFITH:
p11
9-1-2015
12
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.
END QUOTE
QUOTE
Mr. BARTON.-We are going to suggest that it should read as follows:-
10
15
20
the people of any race for whom it is deemed necessary to make any laws not applicable to the general
community; but so that this power shall not extend to authorize legislation with respect to the affairs of
the aboriginal race in any state.
Mr. ISAACS.-My observations were extended much further than that. The term general community" I
understand to mean the general community of the whole Commonwealth. If it means the general
community of the whole Commonwealth, I do not see the meaning of saying that the Parliament of the
Commonwealth shall have the exclusive authority to do that, because any single state would have the right to
do it under any circumstances. If it means less than that-if it means the general community of a state-I do not
see why it should not be left to the state. We should be placed in a very awkward position indeed if any
particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, if
Victoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions which
are not [start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I do
not know how it will affect our factory law in regard to the Chinese which does not operate beyond the
confines of Victoria at all.
Sir EDWARD BRADDON.-Why single out the Afghans?
25
Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same
class. At all events, the expression general community" means the whole community of the Commonwealth. I
do not think that this has any application. If it is to have any application at all, it seems to me to be intended to
debar the state from passing legislation-necessary legislation, but purely confined to that state. I do not think
that that sub-section ought to be there at all if that is the meaning of it.
30
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.
35
40
Sir GEORGE TURNER.-An exclusive power?

Mr. BARTON.-It ought to have an exclusive power to devise such laws.
Sir GEORGE TURNER.-If it does not exercise it can the state exercise it?
Mr. BARTON.-Once the Commonwealth legislates with reference to the question of aliens and
immigration, its legislation displaces the state law.
45
END QUOTE
The constitution clearly prohibits any race legislation against the general community and one
cannot use external affairs as a backdoor manner to create legislative power for the Racial
Discrimination Act 1975 and any further amendments that didnt and still doesnt exist.
50
Hansard2-3-1898 Constitution Convention Debates;

QUOTE Dr. QUICK.p12
9-1-2015
13
10
15
20
25
30
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.
END QUOTE
As such it is nonsense to hold that somehow the parliament could legislate on any subject matter
merely because it entered some treaty because then there was no need to have headings of power
in s51 and s52 of the constitution.
QUOTE
The Right Hon. G.H. REID: I strongly support the amendment for the reasons which my hon. and learned
friend has hinted at. This is an expression which would be more in place in the United States Constitution,
where treaties are dealt with by the President and the senate, than in the constitution of a colony within the
empire. The treaties made by her Majesty are not binding as laws on the people of the United Kingdom,
and there is no penalty for disobeying them. Legislation is sometimes passed to give effect to treaties,
but the treaties themselves are not laws, and indeed nations sometimes find them inconvenient, as they
neglect them very seriously without involving any important legal consequences. The expression, I think,
ought to be omitted. I will deal with the other suggested amendments when the time comes.
END QUOTE
The irony is that really as I view it the High Court of Australia erred in constitutional law
(University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158
CLR 447 (22 November 1984 ) that it failed to realise that the purported Racial Discrimination Act
1975 was and remains unconstitutional and so in effect the State law might, as that is not
determined, be the only relevant law, if not dealing with race issues.
QUOTE
Mr. BARTON.-It has been suggested that this sub-section is embraced in the preceding one-"External
affairs and treaties." That is arguable; it is quite possible that it may be true; but there are a very large
number of people who look forward with interest to the Commonwealth undertaking, as far as it can as part
of the British Empire, the regulation of the Pacific Islands. It may be, I think, as there is a doubt as to
whether the one thing is included in the other, and as there are a large number of people who are interested in
this question, that it is better in deference to their views to leave the words as they are. As the subsection may
do some good, and can do no harm, I think that the objection should not be pressed.
35
40
45
END QUOTE
QUOTE
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.
END QUOTE
.
50
55

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
Yet we find that no matter what the Commonwealth of Australia uses its telecommunication laws
as to be some moral policeman against people.
I in 1966 residing in Germany went with my motor bike travelling and stopped at a caf. I
noticed a slot machine (one armed bandit) and well started to play 10 cent a game. After several
hours I had still 1 Deutche mark in winnings, as I had from onset when I commenced playing. I
p13
9-1-2015
10
15
20
14
then realised how addictive this game was, even so it was my first time and decided never again
to play the slot machines. And about 50 years later has resisted the temptation to ever play a slot
machine again. This was my personal decision and I do not accept that a government should
interfere with the rights of citizens to play games such as these.
There are people who like to watch cartoons of all kinds, and again it is not if we approve or
disapprove of certain cartoons but that we must not be some moral police force against everyone.
Ironically children playing games that includes killing people on the screen somehow is
acceptable. Yet, blocking certain websites because they may be anti-government or abuses of
government may be deemed justified.
We had all this roll drumming about how the government was to deal with radicals who went to
join certain terrorist groups and be prevented to return to the Commonwealth of Australia and
have all kinds of legislation passed as if this snowball effect of legislation is going to deter would
be terrorist, and yet those who joined terrorist groups then come back into the country and
somehow nothing the government can do against them.
Meaning that all those terrorism legislation have been a misuse and abuse of legislative powers
to curtail ordinary citizens and to rob them of their freedoms while a Sydney gun man can kill
such as the Lindt caf.
What this proves is that throwing more money on so called security isnt going to get you
anywhere unless you get someone with real intelligence to head the organisation and shows to be
a hands on man.
.
To use an example:
When I was sergeant of the guard and discovered that the soldiers under my command didnt even know how
to clean their weapons let alone use them and faced that previously there had been various break-ins into the
army camp and weapons were stolen, I decided on my watch this wouldnt occur. So, I started to train the
soldiers how to clean a weapon how to pretend to shoot someone, etc. when they went on patrol I would
suddenly appear and challenge them to use the correct question as to who is there, etc. then during the night I
heard shots fired and well one of the patrols had fired his weapon with lifer ammunition. The Officer of the c
amp appeared, a bit shaken, and tried to have a go at me for my soldiers shooting at him. It turned out he had
failed to answer their request who was there and so my soldiers decided to shoot. The officer argued that he
knew my soldiers had not been trained and so he was trying to test them not expecting they would shoot into
his direction. Well, the next morning the general attending to us and complimented my soldiers for an
excellent job well done and gave them a day off.
25
30
35
40
45
50
The moral of that story is that in the end when you are in charge you have an obligation to ensure
those under you perform appropriately. With the Sydney siege it was clear those in charge of
security failed miserably and the result being 2 innocent people ended up dead. Yet, all we hear
about is more money being thrown at ASIO, etc, without any improvement ever since the fake
WMD claims. Obviously one then has to ask if the government doesnt really want any proper
security, other than its own, so it can use incidents as to legislate more against the freedom of
citizens?
We have clear past retrospective legislation such as dealing with WWII alleged criminals and yet
why not amend just that legislation that instead of being limited to Europe it applies to
anywhere in the world? (http://www.comlaw.gov.au/Details/C2004A03751 WAR CRIMES AMENDMENT
ACT 1988 No. 3, 1989) It seems to me that if the commonwealth can legislate in 1988 as to what
happened more than 40 years earlier then why not just amend this act to apply to radicals and
others involved in atrocities and other warmongering conduct? It seems to me to make more
sense to deal effectively with the real alleged criminals then to burden the community time and
time again with legislation that really does next to nothing to deal with those against who the law
is supposed to be directed.
.
55
I do not desire to be seen as a person who supports retrospective legislation but when it comes
to life and death matters then I view there could be a justification for it. After all, to broaden the
p14
9-1-2015
15
to include current situations may viewed by
many as an acceptable enlargement or amendment. This also where as I understand it within the
Crimes Act (Cth) it is an offence to act against a friendly nation.
WAR CRIMES AMENDMENT ACT 1988 No. 3, 1989

QUOTE
(xxviii) the influx of criminals;

END QUOTE
10
15
20
25
30
35
40
45
50
It is my view that influx of criminals cannot be limited to mere aliens.

QUOTE Mr. KINGSTON:
I think that, although it might possibly raise subjects which it is unnecessary to discuss at the present time, we
might have added to these a resolution which would recognise that in the natural order of things the federal
parliament would be properly charged with the duty of establishing uniform laws on matters of common
interest. We all know the difficulties which at present surround the adoption of legislation to give effect to
provisions which are desired equally by the people of the different colonies, and in which they have
practically a common interest. There are one or two questions which might almost be associated with the
question of, defence. I regard as second only to the necessity of protecting our shores against actual invasion,
the necessity of protecting Australia against the influx of aliens, Asiatics, criminals, paupers, and other
undesirable classes. In the legislation which we have been already compelled to adopt on these subjects, we
know that there has been a striving after uniformity; but that uniformity has seldom been obtained. It is idle
for one state, unless it erects a hostile barrier on its inter-colonial boundaries, to attempt to pass useful
legislation prohibiting or restricting an influx of that character, if there is no community of action on the part
of the rest of the colonies; and when the doors of Australia are thrown open by the omission of one state to do
its duty, the undesirable class which any colony wishes to guard against may come in, not at the front door,
but at the back-not at her own sea ports, but through the territory of her neighbours. It would be well, for this
reason, to specify as one of the chief objects of the adoption of a federal constitution the uniformity of
legislation in the direction to which I have referred. No doubt we shall have an opportunity in Committee to
amend the resolutions in this direction, and if that is not thought desirable we may make the required
provision in the bill.
END QUOTE
QUOTE
The Hon. J.H. CARRUTHERS:
Let me take another point: the very important question of immigration. We may find an instruction to the
representatives of Victoria and the representatives of New South Wales in the house of representatives to pass
a bill to prevent the invasion of undesirable aliens. That bill may pass in the House which represents the
public voice of Australia. In the senate it may be possible for the representatives of the three small states, who
do not represent more than practically a third or a fourth of the population of Australia, to exercise the power
of veto. What happens? By the exercise of the power of veto they throw open the port of Melbourne and the
port of Sydney to the influx of men who may degrade our manhood and our womanhood, and reduce the
population to a lower level than we have ever known before. I mention these things as possible. The
difficulties felt in the more populous centres may not be felt in those portions of Australasia where the state
has not presented those attractions which would lead these undesirable immigrants to flock to their shores. I
think my hon. friend from Tasmania, Mr. Dobson, will admit that the state from which he comes has not felt
to the same extent as Victoria, or Queensland, or New South Wales the evils attending the influx of
immigrants of a degrading character.
END QUOTE
QUOTE
After "criminals" insert "paupers and lunatics."
55
Mr. BARTON.-I do not think it is necessary to add the words proposed. The words "influx of criminals "
were inserted in the Bill in 1891 for a specific purpose, which it is not necessary to specify now, particularly
as it is a purpose of which honorable members are well aware. Apart from that purpose, the result of the
preceding sub-section dealing with "Immigration and emigration" covers everything.
p15
9-1-2015
16
Mr. WISE.-Is there not power to deal with extradition? It seems to me that if there is no such power we are
to say "Influx of criminals or extradition of criminals."
Mr. BARTON.-The next sub-section will cover that.
The amendments were negatived, and the sub-section was agreed to.
Sub-section (29).-External affairs and treaties.

Amendment suggested by the Legislative Council of New South WalesOmit "and treaties."
Mr. BARTON.-I propose to strike out the words "and treaties," in accordance with the suggestion of the
Legislative Council of New South Wales.
10
Mr. GLYNN.-I see an objection to striking out these words in reference to treaties. I am aware that similar
words have been struck out in clause 7, but I doubt the policy of that. It may be wise to retain them.
The CHAIRMAN.-We must be consistent.
Mr. GLYNN.-I bow to your ruling, sir, but an opportunity for reconsidering the matter should be
provided.
15
The amendment was agreed to.

Sub-section 30.-The relations of the Commonwealth to the islands of the Pacific.
20
Mr. BARTON.-It has been suggested that this sub-section is embraced in the preceding one-"External
affairs and treaties." That is arguable; it is quite possible that it may be true; but there are a very large
number of people who look forward with interest to the Commonwealth undertaking, as far as it can as part
of the British Empire, the regulation of the Pacific Islands. It may be, I think, as there is a doubt as to whether
the one thing is included in the other, and as there are a large number of people who are interested in this
question, that it is better in deference to their views to leave the words as they are. As the subsection may do
some good, and can do no harm, I think that the objection should not be pressed.
Mr. KINGSTON.-It is taken from the Federal Council Bill.
25
Mr. BARTON.-Yes.
Mr. SYMON.-To solve a doubt, it might be wise to say in the preceding sub-section-"External affairs,
including the regulation of the islands of the Pacific."
30
Mr. BARTON.-I have no objection to that, except that I should prefer to say "relations with the islands of
the Pacific." If we put some such words in, it gets rid of the difficulty. We might say-"External affairs,
including the relations of the Commonwealth with the islands of the Pacific."
[The Chairman left the chair at one p.m. The committee resumed at two p.m.]
The CHAIRMAN.-When we adjourned for luncheon we were considering sub-section (30) of clause 52the relations of the Commonwealth to the islands of the Pacific. Did I understand the Hon. Mr. Symon to
move an amendment, or only to make a suggestion?
35
40
Mr. SYMON.-No amendment, but merely a suggestion as to a matter of drafting.

Mr. BARTON (New South Wales).-Perhaps the matter might be left in this way. I take it that we have
omitted the words "and treaties" in sub-section (29). If it meet with the approbation of the Convention, this
matter-which is really, I think my friend will agree with me, largely [start page 31] a matter of drafting-will
be taken a note of, and as there will, no doubt, be some stage at which an adjournment will be made to enable
us to make drafting amendments, I will see that this matter is considered with the others.
Mr. DEAKIN (Victoria).-I understand that the leader of the Convention will look at the words "and
treaties," with the view to see how far, by omitting them, we would limit the powers of the Federal
Parliament within the range of the powers that the Canadian Parliament already enjoys.
p16
9-1-2015
17
Sub-section (30) was agreed to.
END QUOTE
It is obviously clear that the Framers of the Constitution on 21-1-1898 were relying upon what
was stated in 1891 as to influx of criminals. As such not just convicted criminals but also
and other undesirable classes.
QUOTE
10
Mr. TRENWITH.-Suppose that is the case, and that this clause is included in clause 52, the Federal
Parliament will have all the powers which it is proposed to give it here, except that it will have to act after
instead of before. That is all the difference. Whenever a necessity arises on behalf of the interests of the
Commonwealth to deal with the question of aliens by one authority, the Federal Parliament can deal with it,
and at once. I object to taking away powers from the states now that may or may not be exercised by the
Federal Parliament. I feel that this question of the treatment of aliens will be more difficult in the future than
in the past. We have an indication of that from what was said by the right honorable member (Sir Edward
Braddon) as to the difficulty in Tasmania in dealing satisfactorily with British subjects coming from
Hindostan. He says that is a difficulty there, and that it will have to be met by special legislation. That has
happened in the past. Other colonies have seen the necessity for special legislation, and it might as easily
have happened that in some other colonies, on account of evils arising therefrom the influx of this alien
population, they had instituted special legislation. Tasmania might not pass such legislation, because
within its borders the evil had not previously arisen. The aliens legislated against might pass into Tasmania;
then the Federal Parliament, having the power, would prevent the state which was being embarrassed by the
influx of a number of these aliens from taking action on its own account so as to prevent the inflow of the
aliens.
15
20
25
END QUOTE
30
35
Even British subjects were in this regard also held at times to be undesirable and as such influx
of criminals was not just referring to aliens but also included British subjects.
It is not uncommon that Customs will not allow a person to enter the Commonwealth if they
have certain suspicions about that person.
In my view, the Commonwealth therefore is well entitled to take such action as it deems fit and
proper to maintain the safety and wellbeing of the general community from certain harm.
This then brings us to the issue of the Commonwealth can use this power against citizens of the
Commonwealth of Australia.
QUOTE
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.
40
45
50
END QUOTE
.
55

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
p17
9-1-2015
18
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
QUOTE
10
15
20
25
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?
30
35
40
45
50
55
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
While the High Court of Australia seems to take the notion that the States are not subject to
separation of powers, I view that s106 stipulates subject to this constitution enforces the
separation of powers. The quotation below also does so!
QUOTE
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 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.
END QUOTE
The usage of the wording and not the states or the Commonwealth clearly includes the states,
where this is followed by that you keep the judicial bench free from the taint of political partisanship. !
Numerous other quotations indicates to me a separation of powers within the states being
applicable. Indeed it would be sheer and utter nonsense for States not to be subject to the
separation of powers where in fact they are created within s106 subject to this constitution
which includes the legal principle of separation of powers.
p18
9-1-2015
19
QUOTE
10
15
20
25
30
35
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
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
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
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, 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 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 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. It is one thing to induce a
Government or Parliament to pass an unjust law, and it is quite another thing to induce a Government for one
excuse or another to hold its hand from acting. What I fear is that you would often induce the Government to
withhold its hand from acting, for fear it would incur opprobrium or unpopularity. I sincerely hope the
amendment will not be carried.
END QUOTE
40
45
50
55
A person could reside in a peaceful manner and law abiding citizen in the Commonwealth of
Australia but then leaves the Commonwealth of Australia and is suspected upon return to have
been involved in undesirable conduct which the Commonwealth may deem could be
detrimental for the general community that is safety could be at risk.
In such an instance I view the Commonwealth could deny the entry of a citizen if there are
justified grounds of doing so. Obviously it would be for the Commonwealth of Australia to
ensure it has got sufficient details to justify its decision. It couldnt be used merely because a
person happens to get some ticket overseas for driving through a red light. However, where real
life issues might be at stake such as suspected terrorism I view the need for the protection of the
general community takes priority. Even if the Commonwealth were to allow such suspected
criminal to enter the Commonwealth of Australia it could do so under special conditions
without a need for court orders as the Minister being the responsible Minister could place
conditions such as an electronic monitoring on the person, and failing to accept this the person
could be refused entry.
KING v. JONES ; McEWEN v. HACKERT ; JONES v. JONES. (1972) 128 CLR 221
Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4), Gibbs(5) and Stephen(6)JJ.
QUOTE Barwick C.J.(1)
10. There are some basic propositions of constitutional construction which
are beyond controversy. The words of the Constitution are to be read in that
p19
9-1-2015
20
10
natural sense they bore in the circumstances of their enactment by the

Imperial Parliament in 1900. That meaning remains, beyond the reach of any
Australian Parliament, subject only to alteration by the means provided by s.
128 of the Constitution. The connotation of words employed in the Constitution
does not change though changing events and attitudes may in some circumstances
extend the denotation or reach of those words. These propositions are fully
documented in the reported decisions of this Court which has the task of
finally and authoritatively deciding both the connotation and the denotation
of the language of the Constitution. (at p229)
END QUOTE
QUOTE Sir EDWARD BRADDON.-
15
20
When we consider how vast the importance is that every word of the Constitution should be correct,
that every clause should fit into every other clause; when we consider the great amount of time, trouble,
and expense it would take to make any alteration, and that, if we have not made our intentions clear,
we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
the people of United Australia and create dissatisfaction with our work, it must be evident that too
much care has not been exercised.
END QUOTE
.
25
30
35

QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct
in the history of this clause that he has given, and this is [start page 672] one of those instances which should
make us very careful of following too slavishly the provisions of the United States Constitution, or any other
Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used
the material they found in every Constitution before it, and probably they felt that they would be incurring a
great deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is
for us to consider, looking at the history and reasons for these provisions in the Constitution of the United
States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr.
Carruthers) that we should be very careful of every word that we put in this Constitution, and that we should
have no word in it which we do not see some reason for. Because there can be no question that in time to
come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to
it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a
direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that
there is some reason for every clause and every word that goes into this Constitution.
END QUOTE
.
40

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."
45
END QUOTE
.
50
55
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
p20
9-1-2015
21
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
.
10
15
20
25
30
35
40
In my view where the Commonwealth has an Australian national acting in defiance of national
security it may very well strip the person of any rights that was previously provided to that
person. Again, national security cannot be merely for having voiced some opposition against the
Government of the Day about some political issue but certainly would be relevant if the person
was to display/promote any form of violence that could be deemed de facto military conduct.
This even if it means retrospectively apply this to strip the person of any rights that were granted
previously.
The following are quotations that indicates some of the judges comments, albeit must not be
perceived that I agree with any or all of them. Indeed, considering the above stated some
quotations clearly are in total conflict with the intentions of the Framers of the Constitution.
447 (22 November 1984
QUOTE
In its express stipulation of invalidity, the section has no parallel in the Constitutions of the United
States or Canada and there is little point in looking to decisions of the Supreme Courts of those
countries for assistance in the resolution of the question involved in the present case
END QUOTE
447 (22 November 1984
QUOTE
18. Although in argument much was made of Windeyer J.'s description of some "deeming" provisions, of
which s.6A is an illustration, as involving a "statutory fiction" in Hunter Douglas Australia Pty. Ltd. v. Perma
Blinds [1970] HCA 63; (1970) 122 CLR 49, at p 65, it is a notion which merely contributes another
dimension of confusion to the question now under discussion. As his Honour pointed out, it is a convenient
drafting technique for reducing the verbiage of an enactment, its effect being to prescribe the way in which a
matter is to be adjudged. Generally speaking, no special legal consequences flow from Parliament's use
of a deeming provision which involves a statutory fiction, though particular problems do arise in
connexion with statutory definitions - see Muller v. Dalgety& Co. Ltd. [1909] HCA 67; (1909) 9 CLR
693, at p 696. It is because Parliament is sovereign and its legislative powers are plenary that there is no
general objection to the enactment of laws which provide for a statutory fiction. It is not a ground of
invalidity unless the provision takes the form of a provision to oust the jurisdiction of the Court to
determine constitutional facts on which the exercise of legislative power may depend (Australian
Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1). Here, of course, the question of
inconsistency is one of law, requiring an ascertainment of the Commonwealth legislative intention for which
s.6A makes specific provision.
END QUOTE
45
50
55
447 (22 November 1984
QUOTE
3. In the course of argument on behalf of the respondents, the submission was made that s.109 of the
Constitution was designed to ensure supremacy of valid Commonwealth laws and that it would be anomalous
if such a provision were to be interpreted in a way which would detract from the parliamentary sovereignty of
the Commonwealth. Even if that were the sole function served by s.109, that assertion would have little force
since, on any approach, s.109 enhances the supremacy of Commonwealth laws by directly invalidating State
laws to the extent of any inconsistency. More important, the submission fails adequately to acknowledge that
the Australian Federation was and is a union of people and that, whatever may be their immediate operation,
the provisions of the Constitution should properly be viewed as ultimately concerned with the governance
and protection of the people from whom the artificial entities called Commonwealth and States derive their
authority. So viewed, s.109 is not concerned merely to resolve disputes between the Commonwealth and
a State as to the validity of their competing claims to govern the conduct of individuals in a particular
area of legislative power. It serves the equally important function of protecting the individual from the
p21
9-1-2015
22
10
15
20
25
30
35
40
45
50
55
injustice of being subjected to the requirements of valid and inconsistent laws of Commonwealth and
State Parliaments on the same subject. The section expressly provides that, in such a case, the law of the
Commonwealth "shall prevail" and that the law of the State "shall, to the extent of the inconsistency, be
invalid". In its express stipulation of invalidity, the section has no parallel in the Constitutions of the
United States or Canada and there is little point in looking to decisions of the Supreme Courts of those
countries for assistance in the resolution of the question involved in the present case. In cases in this
Court, it has been established that the word "invalid" in s.109 should be read in the limited sense of
"inoperative" and that, when inconsistency ends, the State law again becomes operative. The decisions
to that effect, while perhaps making the ascertainment of the law sometimes more difficult, leave intact the
essential protection which s.109 affords a person faced with the competing, and conceivably impossible,
demands of inconsistent Commonwealth and State laws. In that predicament, he or she cannot be subjected to
the ordeal of being legally required to comply with both. For so long as inconsistency exists, s.109 of the
Constitution deprives the State law of its validity with the consequence that he or she has the
constitutional right to ignore it.
4. The argument propounded on behalf of the respondents and the intervening States can be shortly
summarized. Section 109 of the Constitution renders the law of a State invalid or inoperative to the extent of
inconsistency, in the relevant sense, with a valid Commonwealth law. If the Commonwealth
retrospectively repeals so much of an Act as occasioned inconsistency between provisions of that Act
and the provisions of a State Act, the source of that inconsistency will be retrospectively removed. Since
the effect of s.109 of the Constitution is to render an inconsistent State Act invalid only to the extent and for
so long as inconsistency persists, the consequence will be that, inconsistency having been retrospectively
removed, the State Act will, for legal purposes, have been fully operative at those points of time when, if the
position had been examined contemporaneously, inconsistency in fact existed. There are, in my view, two
fallacies in this argument. The first is that it misconceives the nature of the retrospective operation of a
statute. The second is that it either fails to take proper account of the temporal operation of the
provisions of s.109 of the Constitution or wrongly assumes that the Commonwealth Parliament
possesses legislative competence retrospectively to reverse the operation of the constitutional provision
by the importation of a fiction.
5. A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to
be deemed and treated as having been different to what they were. It cannot however objectively expunge
the past or "alter the facts of history" (cf. Akar v. Attorney-General of Sierra Leone (1970) AC 853, at
p 870). If the fact was that its Emperor wore no clothes, it is powerless either to reverse that fact
outside the fields in which it is master or objectively to convert into falsehood the truth which a small
child saw. That position is, of course, a fortiori in the case of a Parliament whose powers are limited even
within the territorial area for which they exist. For the purposes of an organic law, such as the
Constitution, which lies above the law which such a Parliament may make, it may be a relevant fact that
that Parliament has enacted that some fact or law which in truth existed is to be deemed never to have
been. If, however, that organic law is framed so as to act upon the reality, the retrospective fictions of
the subordinate law will be unavailing. It is only if the organic law is framed to act upon any fictions
that might subsequently be introduced into that subordinate law that the Parliament which has power
over that subordinate law can control the operation of the organic law by the retrospective
introduction of such fictions.
6. Section 109 of the Constitution is not concerned with legal fictions. It is concerned with the reality of
contemporaneous inconsistency between a valid law of the Commonwealth and an otherwise valid law of a
State. According to its terms, its operation is immediate. Its terms are unqualified and self-executing. If there
is inconsistency between an otherwise valid law of a State and a valid law of the Commonwealth the State
law shall be, to the extent of the inconsistency, invalid. It is not the Commonwealth law which operates to
make the State law invalid. It is the Constitution itself (see Federated Saw Mill &c. Employes of Australasia
v. James Moore & Son Proprietary Ltd. [1909] HCA 43; (1909) 8 CLR 465, at p 536; Wenn v. AttorneyGeneral (Vict.) [1948] HCA 13; (1948) 77 CLR 84, at p 120). It is the Constitution and not the
Commonwealth Parliament which tells the citizen faced with the dilemma of inconsistent
Commonwealth and State laws which both, according to their terms, apply to him or her that the State
law is invalid and can be disregarded. If, at some subsequent time, the Commonwealth repeals or
amends its law to remove the inconsistency, the State law will then become again valid or operative not
from some prior date but from the time when there was, in fact, no longer inconsistency. The fact that
the Commonwealth Parliament legislates retrospectively to introduce the fiction that, for the purposes
of its law, its inconsistent law never existed or had a different operation to that which it in fact had
cannot alter the objective fact that at the previous time when s.109 operated that inconsistency did
exist. Nor can it alter the fact that the immediate and self-executing provisions of s.109 have already
p22
9-1-2015
23
10
15
operated upon that inconsistency to invalidate the State law not for the period in which the
Commonwealth Parliament, by the introduction of a fiction for its purposes, has subsequently said that
its law had a different operation to that which it in fact had but for the period in which the fact of that
inconsistency existed. So to say is not to construe s.109 of the Constitution as imposing a restriction on
Commonwealth legislative power. It is simply to recognize that while the Commonwealth can retrospectively
legislate for itself it cannot retrospectively impose as State law the provisions of a law which the Constitution
has said was invalid because of contemporaneous inconsistency which has subsequently been removed. That
is something which, if it is to be done, must be done retrospectively by the relevant State.
7. It follows that the Commonwealth Parliament, being subordinate to the Constitution, could not, by its
1983 Amending Act, reverse the past operation of s.109 of the Constitution which had rendered invalid
or inoperative the relevant provisions of the N.S.W. Act. The Commonwealth Parliament possessed no
power unilaterally to override that operation of the Constitution either by amending the terms of s.109
or by creating a legally effective illusion that the section had never operated at all by the introduction
of a retrospective fiction into its law. That being so, the position remains that the relevant provisions of the
N.S.W. Act were not operative at the time the acts complained of in the present case were committed and the
conduct for which the appellant has been held responsible was not unlawful under the provisions of the
N.S.W. Act.
END QUOTE
20
25
30
35
40
45
447 (22 November 1984
QUOTE
9. The second matter is that it should be clear that the foregoing does not involve a denial of the
competence of the Parliaments of the Commonwealth and of a State, in combination, to legislate
retrospectively for the purpose of remedying any unintended operation of the provisions of s.109 of the
Constitution. To the contrary, the above comments about the operation of s.109 of the Constitution and
the nature of statutory retrospectivity tend to support the conclusion that the Parliaments of the
Commonwealth and a State can effectively combine to achieve that purpose. If, for example, the New
South Wales Parliament were now to pass legislation to the effect of the relevant provisions of the
N.S.W. Act and to provide that those provisions would have retrospective operation, the question
whether that new law was valid or operative would fall to be determined by reference to the time when
it was in fact on the statute book as distinct from the time in which, under its provisions, it was, for the
purposes of the law of the State, deemed to have been operative. That being so, the provisions of s.109
would operate to render such a subsequent State law invalid only if, and to the extent that, there was
some present inconsistency with subsisting Commonwealth law. Such a situation would be quite
different in nature to that for which the respondents have contended in the present case in that it
would be the Parliament of New South Wales which would have legislated to give retrospective
operation to provisions of its own law and in that, while the citizen would have been subjected to the
operation of retrospective legislation, the provisions of s.109 would nonetheless have operated to ensure
that there was, in fact, no time at which he was accountable to both a law of the Commonwealth and an
inconsistent law of a State. Nor does anything in the foregoing necessarily involve any denial of the
competence of the Commonwealth Parliament to preclude enforcement of a State law in relation to past
contraventions if the present enforcement of that State law would be contemporaneously inconsistent with the
provisions of that Commonwealth law. These questions have not however been fully investigated in argument
in the present case and I refrain from forming or expressing any concluded view upon them.
END QUOTE
50
55
447 (22 November 1984
QUOTE
9. The way in which s.109 operates is well-established. A State law which is inconsistent with a valid
Commonwealth law is not unconstitutional. If it is first in time it will have been in operation before the
inconsistent Commonwealth law came into force and if it is still on the statute book when the
Commonwealth law ceases to be in force it will come into operation again.
END QUOTE
447 (22 November 1984
QUOTE
p23
9-1-2015
24
5. The Convention referred to is the International Convention on the Elimination of All Forms of Racial
Discrimination to which the Racial Discrimination Act was intended to give effect.
END QUOTE
If all forms of racial discrimination is to be eliminated then this must include also pro racial
discrimination in favour of any race!
QUOTE
10
Mr. HIGGINS.-Clause 84 was intended to mean that the power referred to should not be exclusive until
uniform duties of customs had been imposed.
Mr. BARRON.-There is no exclusive power for a period of two years, but by a proviso the power becomes
exclusive at the end of that time. Where there is no such proviso the exclusive power must operate, at any
rate, from the date of the election of the Federal Legislature.
15
20
25
30
35
40
45
50
55
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.
END QUOTE
RETROSPECTIVE LEGISLATION IN AUSTRALIA: LOOKING
BACK AT THE 1980s
Andrew Palmer and Charles Sampford*
QUOTE
Is it law?
Walker has claimed that:
A retrospective enactment does not fall within any accepted definition of "law", whether
in antiquity or in modern times; to regard it as a "law" involves at least as much
artificiality as any tax avoidance scheme.
The claim is not substantiated by any examples of "accepted" definitions of law, or
indeed any definitions of law, outside of which retrospective legislation supposedly
falls, so its plausibility is difficult to assess. The only citation Walker gives for this
sweeping assertion is a twenty-page section of Julius Stone's Legal System and Lawyers'
Reasoning.19 To the present writers it appears to offer no such support, especially as it
does not use the term retrospectivity. Furthermore, like virtually every legal
philosopher writing since H LA Hart's inaugurallecture,20 Stone eschews the exercise
of defining law. Given Walker's attack elsewhere on Stone as the father of the
Australian "clerisy" and the jurisprude responsible for introducing realism into
Australia,21 it is strange that he should cite Stone at all and even stranger given that the
book does not support his assertion. 22
22. The assertion is made as a preliminary to an argument that the Commonwealth Parliament
may lack constitutional power to enact retrospective legislation. This argument is, to say
the least, a bold one, given its lack of support in both the United States Supreme Court and
Australian High Court. Walker naturally did not have the benefit of the argument in
Polyukhovich v Commonwealth (1991) 172 CLR 501 (discussed below) in which Deane and
Gaudron JJ made a similar argument in relation to criminal retrospective legislation. The
rest of lne Court did not adopt this argument and no Justice appeared even to contemplate
a view as broad as Walker's.
END QUOTE
In the following quotation the writers purport that the Hawke government was elected, even so
no government within the Australia electoral system is elected. We merely elect representatives
as members of parliament and no one knows really who will be ending up to be elected until the
votes are counted. And it is the Governor-General who ultimately commission those why desires
as advisors, acting as ministers to manage the various Departments on his behalf. At the end of
this document I will quote my set out about governments not being elected! As 20150108--G.
H. Schorel-Hlavka O.W.B. to Mr TONY ABBOTT PM-Re election issues.
p24
9-1-2015
25
As such it appears to me that Andrew Palmer and Charles Sampford themselves failed to
understand/comprehend certain legal issues and then this may undermine what they are then
writing about.
5
10
15
20
25
30
35
40
45
50
55
RETROSPECTIVE LEGISLATION IN AUSTRALIA: LOOKING

BACK AT THE 1980s
Andrew Palmer and Charles Sampford*
QUOTE
Democracy
It is not uncommon for lawyers to say that it is "undemocratic" for Parliament to pass
retrospective taxation laws. To do so, however, is to fall into the trap of subsuming
everything one likes about our kind of regime under the most uncontroversial aspects
of it. The arguments against retrospective law-making emphasise human rights,
human autonomy and the ability of individuals to plan their lives. As such they are
quintessentially liberal rather than democratic. Indeed, to the extent that such arguments
are valid they would impose restrictions on democratic values that place the ultimate
rule-making power in the hands of the majority. For example, the Hawke Government
was popularly elected in 1983 on a platform which promised further retrospective antibottomof-the-harbour legislation: assuming that the Australian electoral system is
"democratic"32 it can hardly be claimed that there is anything undemocratic about the
Government's attempts to meet their promise.33 To the extent that it is possible to say
such a thing in our political system, the "people" had authorised precisely such action.
If the general arguments against retrospective legislation are valid, they trump such
claims to democracy rather than reflect democratic claims.
However, there is a more limited argument -based on a concept of democracyagainst
some retrospective rule-making. The argument is that a democratically elected
government's mandate has temporal limits, and that the government should not
attempt to determine the legal consequences of actions taking place outside those
temporal limits, whether before or after their period of office, because to do so involves
overriding the mandate of previous or subsequent governments.34 This argument
could be applied to the Hawke Government's attempt to recoup bottom-of-the-harbour
tax despite their popular mandate. The argument applies equally to retrospective and
entrenching legislation, the former attempting to change the legal consequences of
actions taken before the mandate commenced, the latter attempting to prevent a future
government from determining the legal consequences of events occurring within the
226 Federal Law Review Volume22
period of their own mandate. But as Eule points out, this argument does not apply to
retrospective legislation which only reaches back in time to a point within the
legislature's temporal mandate.35
Furthermore, the argument does not apply at all if the previous legislature had
itself no democratic mandate, as is the case, for example, in new or newly restored
democracies. Indeed, one might argue that the later democratic government is not only
entitled, but also obliged, to remedy the iniquities inflicted by its non-democratic
predecessor. In a sense this merely involves the absence of the restraints that the
democratic theory would flace on retrospectively altering the rules imposed by nondemocratic
governments.3 There is also, however, a more positive argument that rules
passed by democratic governments quite simply have greater moral standing than
those passed by non-democratic ones. The question is then reduced to the following:
"Which of the alternative rules should cover this instance?" The democratic foundation
of a later rule is a very strong reason for preferring it, even if the rule is applied to a
time before the legislature's election to office.37
Finally, the argument that it is undemocratic for a legislature to alter the legal
consequences of actions which occurred outside the temporal limits of its mandate
assumes that a mandate does have the kind of temporal limits Eule suggests. It is
perfectly obvious that a government elected to office for a specific term has a mandate
to govern for that term and for that term only. But it does not necessarily follow from
this that the government's mandate allows it to determine the legal consequences of
events occurring only within its term of office. Eule's argument is that:
Each set of elected officials ought to be viewed as endowed by their sovereign [the
p25
9-1-2015
26
10
15
20
25
30
35
40
45
50
55
electorate] with the mandate to make policy choices only within a bracketed temporal
zone ... [T]he delegation of authority ... does not contemplate contravening the sanctity
of time past.38
Perhaps, but does this mean that the legislature can attach legal consequences only to
actions taking place within its term of office, or rather that it can attach, within its
period of office, any legal consequences to any events whensoever occurring, provided
that the consequences are confined to its term of office?39 Shortly after the election of
the Hawke Government in 1983, the then Finance Minister, John Dawkins, made the
following statement:
I now affirm that the Government will, as necessary, employ retrospective legislation to
ensure that tax sought to be avoided under any blatant tax avoidance scheme that comes
to light during our term of office will be collected, irrespective of when the scheme was entered
into.'i0
The temporal nexus between the act of avoidance and the term of office suggested
by this statement is simply that the act of avoidance must be discovered in the relevant
time frame. According to Eule's argument, this nexus is insufficient and any legislation
passed in accordance with the statement would be illegitimate in a democracy. This
would be so even if the previous legislature was completely unaware of the schemes
which were being entered into during its term of office and was not therefore in a
position to make a decision about whether or not to recoup the avoided tax. Such a
distinction is hardly appropriate as it discriminates in favour of those for whom action
and detection fall on either side of an election at which the government changes. It
would also lead to an unseemly rush for schemes immediately before such an election
campaign.
What, moreover, if the people actually authorise the taking of retrospective action
by the legislature: do the principles of majoritarian democracy require that previous
expressions of "the will of the people" should be respected for all time? Or can the
people declare that the previous majority was wrong and that their work should be
undone? An argument used by Eule to support the entrenchment prohibition can be
turned around to show that the people should be allowed to exercise hindsight in this
way. Eule argues that "to permit entrenchment prevents those with the greatest
knowledge of societal needs from acting".41 In other words, the decision is taken by
those attempting to exercise foresight rather than by those with actual knowledge of
societal needs. To prohibit retroactive legislation, however, prevents those with the
superior form of knowledge, hindsight, from taking the decision. Why should the
electorate be incapacitated in this way?
In the 1983 Federal election, for instance, the ALP claimed that the Fraser
Government had not done enough during its term to deal with the problem of tax
avoidance, and promised both to stamp out the industry for the future (within the
temporal limits of its term of office) and also to recover tax from those who had
avoided paying it in the past (outside the temporal limits of its term of office). To the
extent that it was an issue,42 the electorate can be assumed to have agreed that too little
had been done to counter tax avoidance and that too many people had been allowed to
evade their tax liabilities. Can it be said that in a democracy the people cannot exercise
hindsight in this way and have no power to authorise the kind of action promised by
the ALP? It could perhaps be objected that this kind of "second-guessing" by the
electorate could embitter politics and make the state of the law uncertain, but such
arguments are not founded on notions of democracy but on the other kinds of
arguments discussed in this part.
END QUOTE
http://www.heraldsun.com.au/news/charlie-hebdo-attack-multiple-fatalities-in-french-newspaper-shooting/storye6frf7jo1227177729494?sv=a62c9cf6118583c82ffd51cb042c47ed&utm_source=Herald%20Sun&utm_medium=email&utm
_campaign=editorial&net_sub_uid=88329125
QUOTE
Police have named Said Kouachi, Cherif Kouachi, Hamyd Mourad now believed to have fled to the northeastern city of Reims.
p26
9-1-2015
27
French magazine Le Point is reporting the two brothers had returned to France from Syria last month, and had
ties to an Iraqi network in Paris encouraging young men to join militants in Iraq.
Cherif may have served prison time in 2008 for involvement in an Iraqi jihadist group operating out of
France.
10
15
20
END QUOTE
http://www.comlaw.gov.au/Details/C2004A03751
QUOTE
WAR
CRIMES
No. 3, 1989 - SECT 3
Substitution of Preamble
AMENDMENT
ACT
1988
3. The Preamble to the Principal Act is repealed and the following Preamble
is substituted:
"WHEREAS:
(a) concern has arisen that a significant number of persons who committed
serious war crimes in Europe during World War II may since have entered
Australia and became Australian citizens or residents;
END QUOTE
http://www.comlaw.gov.au/Details/C2004A03751
QUOTE
"7. (1) A serious crime is a war crime if it was committed:
(a) in the course of hostilities in a war;
25
(b) in the course of an occupation;

(c) in pursuing a policy associated with the conduct of a war or with an
occupation; or
(d) on behalf of, or in the interests of, a power conducting a war or
engaged in an occupation.
30
"(2) For the purposes of subsection (1), a serious crime was not committed:
(a) in the course of hostilities in a war; or
(b) in the course of an occupation;
merely because the serious crime had with the hostilities or occupation a
connection (whether in time, in time and place, or otherwise) that was only
35
incidental or remote.
"(3) A serious crime is a war crime if it was:
(a) committed:
(i) in the course of political, racial or religious persecution; or
(ii) with intent to destroy in whole or in part a national, ethnic,
40
racial or religious group, as such; and

(b) committed in the territory of a country when the country was involved
in a war or when territory of the country was subject to an occupation.
"(4) Two or more serious crimes together constitute a war crime if:
p27
9-1-2015
28
(a) they are of the same or a similar character;
(b) they form, or are part of, a single transaction or event; and
(c) each of them is also a war crime by virtue of either or both of
subsections (1) and (3).
Effect of sections 6 and 7

"8. (1) Subject to subsection 7 (2), nothing in section 6 or 7 limits the
generality of anything else in that section.
"(2) An act may be a serious crime by virtue of one of more of subsections 6
(1), (3), (4) and (5), but not otherwise.
10
"(3) A serious crime may be a war crime by virtue of either or both of

subsections 7 (1) and (3), but not otherwise.
"(4) Two or more serious crimes may together constitute a war crime by
virtue of subsection 7 (4), but not otherwise.
"PART III-WAR CRIMES
15
War crime to be indictable offence

"9. (1) A person who:
(a) on or after 1 September 1939 and on or before 8 May 1945; and
(b) whether as an individual or as a member of an organisation; committed a
war crime is guilty of an indictable offence against this Act.
20
"(2) Sections 5 and 7, and paragraph 86 (1) (a), of the Crimes Act 1914 do
not apply in relation to an offence against this Act.
Punishment
"10. (1) The punishment for an offence against this Act involving the wilful
killing of a person is imprisonment for life or for any lesser term.
25
"(2) The punishment for any other offence against this Act is imprisonment
for not more than 25 years.
Only Australian citizens or residents to be prosecuted
"11. A person shall not be charged with an offence against this Act unless
he or she is:
30
(a) an Australian citizen; or

(b) a resident of Australia or of an external Territory.
Who may prosecute
"12. An offence against this Act may only be prosecuted in the name of the
p28
9-1-2015
29
Attorney-General or the Director of Public Prosecutions.
END QUOTE
When we look at the original intentions of the colonial legislation about land taxation of Victoria
then clearly it is considerably different now.
Victoria - VOTES AND PROCEEDINGS
OF THE LEGISLATIVE ASSEMBLY, S E S S I O N 1880 - 8 1;
10
15
20
25
30
35
40
45
50
55
60
VOTES AMD PROCEEDINGS O F T H E L E G IS L A T I V E ASSEMBLY. No. 38.

WEDNESDAY, 1 s t DECEMBER 1880.
QUOTE
15. W a y s a n d M e a n s .Mr. Gaunson reported from the Committee of Ways and Means a certain
resolution,
which was read and is as follows:
{ZOth November, 1880.)
ResolvedT hat in lieu of the duty of land tax now chargeable on all lands alienated in fee
from the Crown, there shall, on and after the 28th February 1881, be charged in and for every year in
respect of all such lands a duty after the same rate as that prescribed in section three of the The
L a n d Tax A c t 1877, calculated on the following basis (that is to say) :
Land capable of carrying at the rate of 200 sheep or more to 100 acres throughout the year
shall be estimated as of the First class.
Land capable of carrying at the rate of 175 sheep and less than 200 sheep to 100 acres
throughout the year shall be estimated as of the Second class ;
throughout the year shall be estimated as of the Third class ;
throughout the year shall be estimated as of the Fourth class ;
throughout the year shall be estimated as of the Fifth class ;
throughout the year shall be estimated as of the Sixth class ;
throughout the year shall be estimated as of the Seventh class ;
And land capable of carrying at the rate of less than 50 sheep to 100 acres throughout the
year shall be estimated as of the Eighth class.
In this resolution sheep shall mean store sheep.
For the purposes of classification, lambs shall be reckoned as store sheep from weaning time ;
three ewes and their lambs up to weaning time shall bo reckoned as equivalent to four store sheep ;
seven fat sheep shall be reckoned as equivalent to nine store sheep ; seven head of fat cattle shall be
reckoned as equivalent to ten head of store cattle ; every head of store cattle shall be reckoned as
equivalent to seven store sheep; and every horse shall be reckoned as equivalent to ten store sheep j
and cattle shall include any bull cow ox steer or heifer or calf over six months old, and horse
shall include any mare gelding colt filly ass or mule or foal over six months old.
Every landed estate classified of the First class shall be deemed to be of the value of 5 6s. 8d. **
to the acre ;
Every landed estate of the Second class shall be deemed to be of the value of 4 13s. 4d. to the acre ;
Every landed estate of the Third class shall be deemed to be of the value of 4 to the acre ;
Every landed estate of the Fourth class shall be deemed to be of the value of 3 6s. 8d. to the acre ;
Every landed estate of the Fifth class shall be deemed to be of the value of 2 13s. 4d. to the acre ;
Every landed estate of the Sixth class shall be deemed to be of the value of 2 to the acre ;
Every landed estate of the Seventh class shall be deemed to be of the value of 1 6s. 8d. to the acre ;
And every landed estate of the Eighth class shall be deemed to be of the value of 1 to the acre ;
Every landed estate classified under The L a n d Tax A c t 1877 in the First class shall be classification of
classified in the First class under this A c t ; any landed estate classified under the Principal Act in
presentianded
the Second class shall be classified in the Second or Third class, as above prescribed, according as the
Commissioners having regard to the grazing capabilities of such estate shall think just and reasonable ;
in like manner landed estates classified under the said A ct in the Third class shall be classified in the
Fourth or Fifth class, and landed estates classified in the Fourth class under the said Act shall be
classified in the Sixth, Seventh, or Eighth class.
p29
9-1-2015
30
And the said resolution was read a second time and agreed to by the Assembly.
OrderedT hat Mr. Berry and Mr. Vale do prepare and bring in a Bill to carry out the above
resolution.
END QUOTE
Victoria - VOTES AKD PROCEEDINGS
OF THE LEGISLATIVE ASSEMBLY, S E S S I O N 1880 - 8 1;
QUOTE
i v i s i o n No. 24.
M ISC E L L A N E O U S.
No. 2. {Inalterable.)
To pay certain claims for destruction of property at Glenrowan,
on the occasion of the capture of Edward Kelly, 304 10s. ...
On account of claims for compensation in connection with the
destruction and capture of the Kelly outlaws
Medical and other expenses incurred in attendance on Superintendent
Hare, of the Police Force, when suffering from a gunshot
wound received in the attack on the Kelly outlaws at Glenrowan
To Mrs. Ellen Sherritt, widow of Aaron Sherritt murdered by the
Kelly outlaw s; in accordance with the recommendation of the
Board, at 10s. a week from 27th June 1880 to 30th June 1881,
26 7s. Id. ...
10
15
20
END QUOTE
25
30
35
40
45
50
55
60
QUOTE
No.6.
WEEKLY REPORT OF DIVISIONS
IN
COMMITTEE OF THE WHOLE ASSEMBLY.
EXTRACTED FROM THE MINUTES.
SESSION 1880.
T U E S D A Y , 3 0 t h N O V EM B ER 1880.
ATo. 1. W ays and Means.
Question proposedT hat in lieu of the duty of land tax now chargeable on all lands
alienated in fee from the Crown, there shall, on and after the 28th February 1881, be charged
in and for every year in respect of all such lauds a duty after the same rate as that prescribed in
section three of the The L a n d T ax Act 1877, calculated on the following basis (that is to say) :
Land capable of carrying at the rate of 200 sheep or more to 100 acres throughout the year
shall be estimated as of the First class.
throughout the year shall be estimated as of the Second class ;
throughout the year shall be estimated as of the Third class ;
throughout the year shall be estimated as of the Fourth class ;
throughout the year shall be estimated as of the Fifth class ;
throughout the year shall be estimated as of the Sixth class ;
throughout the year shall be estimated as of the Seventh class ;
And land capable of carrying at the rate of less than 50 sheep to 100 acres throughout the
year shall be estimated as of the Eighth class.
In this resolution sheep shall mean store sheep.
For the purposes of classification, lambs shall be reckoned as store sheep from weaning time ;
three ewes and their lambs up to weaning time shall be reckoned as equivalent to four store sheep ;
seven fat sheep shall be reckoned as equivalent to nine store sheep ; seven head of fat cattle shall be
reckoned as equivalent to ten head of store cattle; every head of store cattle shall be reckoned as
equivalent to seven store sheep; and every horse shall be reckoned as equivalent to ten store sheep ;
and cattle shall include any bull cow ox steer or heifer or calf over six months old, and horse
shall include any mare gelding colt filly ass or mule or foal over six months old.
Every landed estate classified of the First class shall be deemed to be of the value of 5 6s. Sd. to the acre ;
p30
9-1-2015
31
10
15
20
25
30
35
40
45
50
55
60
Every landed estate of the Second class shall be deemed to be of the value of 4 13s. 4d. to the acre ;
Every landed estate of the Third class shall be deemed to be of the value of 4 to the acre ;
Every landed estate of the Fourth class shall be deemed to be of the value of 3 6s. 8d. to the acre ;
Every landed estate of the Fifth class shall be deemed to be of the value of 2 13s. 4d. to the acre ;
Every landed estate of the Sixth class shall be deemed to be of the value of 2 to the acre ;
Every landed estate of the Seventh class shall be deemed to be of the value of 1 6s. 8d. to the acre ;
And every landed estate of the Eighth class shall be deemed to be of the value of 1 to the acre ;
Every landed estate classified under The L a n d T ax A c t 1877 in the First class shall be
classified in the First class under this A c t ; any landed estate classified under the Principal Act in
the Second class shall be classified in the Second or Third class, as above prescribed, according as the
Commissioners having regard to the grazing capabilities of such estate shall think just and reasonable;
in like manner landed estates classified under the said Act in the Third class shall be classified in the
Fourth or Fifth class, and landed estates classified in the Fourth class under the said Act shall be
classified in the Sixth, Seventh, or Eighth class.(M r. Berry.')
Amendment proposedT hat all the words after the word That be omitted with a view to insert
instead thereof the words the owner of any land above the capital value of Two thousand five
hundred pounds shall pay a yearly tax of Threepence in the pound upon each and every pound of
such capital value over and above the sum of Two thousand five hundred pounds.(M r. M cKean.)
QuestionT hat the words proposed to be omitted stand part of the proposed resolutionput.
Committee divided.
Ayesi, 35 .
Mr. Barr, Mr. Berry, Mr. Boltou, Mr. Bowman, Mr. A. T. Clark, Mr. Davies, Mr. Gardiner, Mr. Hall,
Mr. Hunt, Mr. James, Mr. Johnstone, Mr. Langridge, Mr. Laurens, Mr. Longmore, Mr. Macgregor,
Mr. Mason, Mr. McColl, Mr. Mirams, Mr. Nimmo, Mr. OCallaghan, Sir B. OLoghlen, Bart.
Mr. Patterson, Mr. Pearson, Mr. Quick, Mr. Rees, Mr. Richardson, Major W. C. Smith, Mr. Toohey,
Mr. Tucker, M r. Vale, Mr. Williams,Mr. Woods,Mr. A. Young.
Tellers. Mr. L. L. Smith, Mr. Fincham.
Noes, 26.
Mr. Anderson, Mr. Bent, Mr. Bosisto, Mr. Burrowes, Mr. Cameron, Mr. R. Clark, Mr. Gavan Duffy,
Mr. Fraser, Mr. Gibb, Mr. Gillies, Mr. Harris, Mr. Keys, Mr. Langdon, Mr. Levien, Dr. Madden,
Mr. McLean, Mr. Officer, Mr. Orkney, Mr. Ramsay,Mr. R. Murray Smith, Mr. Wallace, Mr. Wheeler,
Mr. Wrixon, Mr. Zincke. Tellers. Mr. Shiels, Mr. Zox.
END QUOTE
QUOTE
LEGISLATIVEASSEMBLY.
No.11.
W E E K L Y R E P O R T OF D I V I S I O N S
IN
COMMITTEE OF THE WHOLE ASSEMBLY.
EXTRACTED FROM THE MINUTES.
SESSION 1880-81.
W E D N E SD A Y , 3 0 t h M A RCH 1881.
o. 1. h a n d T ax A ct Amendment B ill.
Clause 4.
The classification of all landed estates under the Principal Act shall remain in full force and
effect until the twenty-seventh day of February 1881, and thereafter the amount of duty by way of
land tax payable to Her Majesty in and for every year commencing on the twenty-eighth day of
February by every owner of a landed estate or of two or more landed estates in pursuance of and
after the rate prescribed in section three of the Principal Act (namely One pound five shillings
for every hundred pounds of the capital value thereof over and above the sum of Two thousand fivehundred
pounds) shall be determined according to the valuation of such estate or estates made
under the provisions of the Principal Act as amended by this A ct. (d/r. Berry.')
Amendment proposedThat the words One pound five shillings, in line 5 of the above clause, be
omitted with a view of inserting instead thereof the words Twelve shillings and sixpence.
(df\ McLean?)
QuestionThat the words proposed to be omitted stand part of the clauseput.
Committee divided.
Ayes, 36..
Mr. Barr, Mr. Bell, Mr. Bolton, Mr. Bowman, Mr. A. T. Clark, Mr. Davies, Mr. Deakin, Mr. Dow,
Mr. Fincham, Mr. Fisher, Mr. Gardiner, Mr. Graves, Mr. Hall, Mr. Hunt, Mr. Johnstone, Mr. Kernot,
p31
9-1-2015
32
Mr. Laurens, Mr. Longmore, Mr. Macgregor, Mr. McColl, Mr. Mirams, Mr. Nimmo, Mr. OCallaghan,
Mr. OHea, Sir B. OLoghlen, Bart., Mr. Patterson, Mr. Pearson, Mr. Quick, Mr. Rees, Mr. Richardson,
Mr. Tucker, Mr. Vale, Mr. Williams, Mr. Wrixon,
Tellers. Mr. Langridge, Mr. James.
10
Noes. 23
Mr. Anderson, Mr. Ben., Mr. Bosisto, Mr. Burrowes, Mr. Cameron, Mr. Carter, Mr. Cooper, Mr. Francis,
Mr. Harris, Mr. Keys, Mr. Langdon, Mr. Levien, Dr. Madden, Mr. M cIntyre, Mr. McLean, Mr. Officer,
Mr. Orkney, Mr. R. Murray Smith, Mr. Wallace, Mr. Walsh, Mr. Wheeler,
Tellers. Mr. W. Madden, Mr. Zox.
END QUOTE
QUOTE 20150108--G. H. Schorel-Hlavka O.W.B. to Mr TONY ABBOTT PM-Re election issues
WITHOUT PREJUDICE
15
Mr Tony Abbott PM
8-1-2015
C/o josh.frydenberg.mp@aph.gov.au
Cc:
20
25
Bill Shorten Bill.Shorten.MP@aph.gov.au

Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Senator George Brandis senator.brandis@aph.gov.au
Matthew Johnston matthew.johnston@news.com.au
David Hurley david.hurley@news.com.au
George Williams george.williams@unsw.edu.au
Jessdica Marszalek Jessica.marszalek@news.com.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
Ref; 20150108-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re election issues
30
35
40
45
50
Tony,
As a CONSTITUTIONALIST my first concern always is the true meaning and
application of the constitution.
As you may be aware I comprehensively defeated the Commonwealth of Australia on the issue
of compulsory voting after a 5 year epic legal battle before the County Court of Victoria on 19
July 2006.
.
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
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
And
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
55
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA
27 (17 June 1999)
QUOTE
Constitutional interpretation
p32
9-1-2015
33
2.
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 someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
10
END QUOTE
15
20
25
30
35
40
45
50
THE Framers of the constitution did make known that the method of electing members of
parliament should be left to the Commonwealth of Australia regarding federal parliament.
Obviously when it comes to major political parties they desire to gain ultimate power when in
office. Not because it is in the interest of the general community but to pursue to stay in power
as like a dictatorship.
Members of parliament are elected on a election system that may or may not be suitable to
certain political parties. When they are upcoming political parties they may desire the existing
system but as they broaden their numbers of Members of Parliament they may desire to have the
system changed so as to prevent other newcomers to get elected.
As such, no matter which electoral system one may have in place it always will suit some and not
others.
It is wrong to argue that the Senate must be within the powers of large political parties as
Senators are elected to represent their respective States and never , I repeat never should be part
of any political movement that is in the House of Representatives. This as the House of
Representatives is a Peoples House. That is why the Government must be held accountable to
the House of Representatives.
.
The Governor-General ultimately decides who he shall commission to form a government, albeit
by convention it generally is the political party or a coalition that will be in government, but the
Governor-General is not at all bound by this convention. Indeed, (within s64 of the constitution)
he could commission me to form a government, regardless that I am not a Member of Parliament.
When one consider the constitutional provisions of a DOUBLE DISSOLUTION and a joint
sitting of both Houses of Parliament if a bill, including g taxation and Appropriation bills
(budget) fails to pass twice then clearly a budget should be handed down say at least 6 months
prior to the commencement of the new financial year.
.
This didnt eventuate in 2013 and one can seed the problems that followed as even now certain
bills never were passed in 2014 and we are already in 2015.
While there can be a blame put against the Senators not passing certain Bills constitutionally
however they are doing their job not to do so if in their opinion it is inappropriate to pass a
certain number of bills.
Governments are not elected, as there is no such ballot, at least to my knowledge, to elect a
Prime Minister or for that any other Minister. No one in government can therefore claim to have
been elected on a particular mandate because all any candidate in an election does is to put
forwards a wish-list or a fraudulent wish-list to the electors in the hope to be elected to become a
Member of Parliament.
p33
9-1-2015
10
15
20
25
30
35
40
45
50
34
If any Minister (including a Prime Minister) was to claim to be elected with a particular mandate
(again they are not) then likewise the person(s) must then be held legally liable for failing to
adhere to what was promised during the election to the electors. As you are well aware off you
criticised Julia Gillard for her blatant deception but now you have joined her ranks of dishonesty.
Are you then going to say you were not validly elected for spruiking one agenda but acting in
contradiction to it?
You cannot have it both ways, to pursue you have some kind of a mandate but act contrary to
other issues you suddenly no longer desire to pursue or act in contradiction to it.
.
The very first Prime Minister Edmund Barton was never even elected to Parliament when he was
commissioned on 26 December 1900 to form a government when the federation commenced on
1 January 1901. Constitutionally (s64) a person can be commissioned without needing to be a
Member of Parliament, as was Edmund Barton at the time. For sure he was subsequently in the
first federal election elected as a Member of the House of Representatives, but it must be clear
that from onset he had no majority in the House of Representatives nor needed to have so.
The Government of the Day can only act within the legislative powers the (federal) Parliament
enacts within the true meaning and application of the constitution.
The Government of the Day is not governing just for its own supporters but must act in the
interest of all people of the general community. As such, even if party philosophy may be of a
certain requirement, ultimately the government of the Day must disregard this, as they are
commissioned as advisors to assist the Governor-General to govern (as Ministers) for all
Australians and not just for its political party membership.
The Government of the Day may pursue to have the Parliament passing certain bills (including
taxation and/or appropriation bills) but because of the separation of powers of the federal
executives, the Parliament and the Judiciary, the Government of the Day cannot then dictate the
House of parliament how it should vote.
It is for the Government of the Day to present to the Parliament Bills which may so to say be
most attractive for Members of the Parliament of either Houses to vote for. If the Government of
the Day fails in obtaining a majority vote then it can always pursue a DOUBLE DISSOLUTION.
After all it failed miserably to present a Bill to the parliament both Houses of the Parliament
could agree upon.
.
It is in my view utter and sheer nonsense to push that the election system should be altered as to
prevent independent candidates or those of minor parties to be elected. It makes absolutely no
difference to State Representation if a Senator is of one or another party or is an
INDEPENDENT Member of Parliament as long as the elected Senator represents the best
interest of the State they represent. For the electors however it does make a big difference that
they have and maintain their political liberty to be able to elect someone they view is most
trustworthy/competent of the various candidates.
Hence, any electoral system must always be and remain to be in the interest of the general
community and not be set up to oust certain kinds of candidates to secure a two party kind of
election.
Having a diversion of Senators that will make it more difficult for a Government of the Day to be
able to get bills passed means we actually have a working Senate.
Why have this elaborate system of electing numerous candidates to become Members of
Parliament at huge cost if all that is desired is to have a battle between 2 major parties who shall
govern? We might then as well set up a system that electors can vote for a lair or another lair and
do without numerous Members of Parliament as after all when they belong to a party they
generally vote alike.
p34
9-1-2015
10
15
20
25
30
35
We do not have the constitutional provisions of the USA to elect as President and so no use to
look at that system.
.
Ultimately the interest of the electors is and always must be above that of the personal interest of
politicians, but sadly this appears to have evaporated.
.
In my view the system of voting above the line in Senate elections is discriminatory to
INDEPENDENT candidates and as such I view unconstitutional.
.
Likewise so the Deposit, and the payment per primary vote (first preference).
Elections shouldnt be fought between the major political parties who can outdo the other in lies
and deceit to gain office, because our political system in fact doesnt provide for electing a
Government.
.
If the preference voting was abolished and electors merely place a cross for the candidate they
vote for in regard of House of Representatives elections then the candidate with the most votes
would then be deemed the elected candidate.
As for the Senate, if there are say 3 positions available then an elector numbers 3 of the
candidates in the order they desire. Then the 3 candidates with the most votes are declared
elected, without any preference system being used.
We have had ongoing falls and misleading advertisement as to who to elect as Prime Minister,
this even so as stated above electors do not elect a Prime Minister, and therefore it cannot be
states that the payment per primary vote is to assist electors to make an informed vote, rather it is
used to deceive electors.
Bu voluntarily voting, as I proved in court is the only constitutional valid election system, then
electors decide for themselves if they desire to vote or not. When you however force under
terrorism for people to vote then you can never claim to have a mandate in any event.
If the Australian Electoral Commission were to utilise the electronic system in the best interest of
electors, then a computer screen in a ballot booth could display an A4 page of what a particular
candidate stands for with a photo of the candidate no more than 2 years old. Not a candidate
having a photo that is 10 or 15 years old, as I discovered was being use while standing as an
INDEPENDENT candidate in elections for some 16 years.
35
40
45
50
No matter how much the electoral system might be altered there will always be those who will
want to have it changed to suit their own purposes. Hence lets keep it in the best interest of the
electors.
Therefore, abolish the preference voting system to have the candidate with the most voted being
declared the successful candidate.
I was involved in elections where 2 or more candidates were belonging to the same political
party. As such if there were 3 of the same party then 2 were so to say dummy candidates, merely
seeking to attract voted for one of their political party and then assign their preference votes to
this person. Also I found that the Australian greens for example opposed a freeway but then
supported the Australian Labor Party candidate in favour of a freeway to get elected. Now this to
me is ultimate betrayal upon the electors who voted for the Greens.
Without any preference system then more than likely less candidates will exist of the same
political party as then standing against one of their own could hand the election over to an
opponent party. Also, without the preference system it would not eventuate that someone who
p35
9-1-2015
36
has nearly the least votes somehow can still end up being elected ahead of someone who may
have had 10 times the number of votes.
10
15
20
25
30
35
40
45
50
55
The Framers of the constitution held it essential to provide for political liberty and this
includes being able to hold the Government of the Day accountable, but we now have this system
of secrecy where the Government of the day will claim for national security it is necessary to
keep things hidden/secret.
QUOTE
Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that guarantee.
END QUOTE
And
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
And
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have provided for an
therefore, it can only act as the agents of the people.
END QUOTE
There can therefore be no secrecy and any Government of the Day involved in dirty business will
claim it is for the best interest of the general community that matters remain secret, but it
undermines the very constitutional principles of being able to hold a Government of the Day
accountable. Indeed, how can an elector pursue the local Member of Parliament to pursue
something when the Government of the Day conceals relevant details?
As such, any notion of confidentiality of commercial dealing also is utter and sheer nonsense
because any contracts that involved the spending of public monies must be open for scrutiny. If a
business doesnt like to deal with the Government of the Day because it seeks to avoid scrutiny
then so be it and it stays out of being awarded any contracts but if it desires to gain contracts then
there is no such as commercial confidentiality as that can never exist when it involved public
monies.
Equuscorp Pty Ltd v Haxton, Equuscorp Pty Ltd v Bassat, Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty
Ltd, [2012] HCA 7, 8 March 2012, M128/2010, M129/2010, M130/2010, M131/2010 & M132/2010
QUOTE
1. More recently, in Yaxley v Gotts[182] the English Court of Appeal considered the requirement now made in
absolute terms by s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (UK) that a contract for
sale of land can only be made in writing which incorporates all the terms the parties have expressly agreed.
It was held that an oral agreement nevertheless might give rise to a constructive trust because such trusts
were saved by s 2(5) of that Act. But the Court of Appeal saw no scope for the doctrine of proprietary
estoppel. Robert Walker LJ said[183]:
"Parliament's requirement that any contract for the disposition of an interest in land must be made in a
particular documentary form, and will otherwise be void, does not have such an obviously social aim as
statutory provisions relating to contracts by or with moneylenders, infants, or protected tenants.
Nevertheless it can be seen as embodying Parliament's conclusion, in the general public interest,
that the need for certainty as to the formation of contracts of this type must in general outweigh
the disappointment of those who make informal bargains in ignorance of the statutory
requirement. If an estoppel would have the effect of enforcing a void contract and subverting
Parliament's purpose it may have to yield to the statutory law which confronts it, except so far as the
statute's saving for a constructive trust provides a means of reconciliation of the apparent conflict."
END QUOTE
p36
9-1-2015
37
http://ag.ca.gov/ethics/accessible/misuse.php
QUOTE (DOWNLOADED 13-3-2010)
Ethics Orientation for State Officials
Misuse of Public Funds
10
15
20
25
Public Funds may not be Used for Personal Purposes

The starting point for any analysis concerning the misuse of public funds begins with the principle that public
funds must be expended for an authorized public purpose. An expenditure is made for a public purpose when
its purpose is to benefit the public interest rather than private individuals or private purposes.
Once a public purpose is established, the expenditure must still be authorized. A public official possesses
only those powers that are conferred by law, either expressly or impliedly.
The California Constitution and a variety of state statutes make it clear that public funds may not be
expended for purposes that are primarily personal. Such expenditures are neither for a public purpose nor are
they authorized.
The prohibition against using public funds for personal purposes does not mean that no personal benefit may
result from an expenditure of public funds.
For example, the payment of a public employees salary confers a personal benefit on the employee, but it is
an appropriate expenditure of public funds because it is procuring the services of the employee for public
purposes.
The misuse of public funds occurs when the personal benefit conferred by a public expenditure is not merely
incidental. The term public funds is not limited to money, but includes anything of value belonging to a
public agency such as equipment, supplies, compensated staff time, and use of telephones, computers, and
fax machines and other equipment and resources.
Examples of Misuse of Public Funds
1. In People v. Dillon, a city commissioner used official government discounts to purchase items for himself
and others. This was a misuse of public funds, even though those receiving the discount paid for the
items with personal funds.
30
2. In People v. Sperl, a county marshal furnished a deputy marshal and a county vehicle to transport a
political candidate, his staff and family.
3. In People v. Battin, a county supervisor used his county compensated staff to work on his political
campaign for Lieutenant Governor.
4. In People v. Harby, a city official used a city car, entrusted to him for use in connection with official
business, to take a pleasure trip from Los Angeles to Great Falls, Montana and back.
35
40
Violations of the laws prohibiting misuse of public funds may subject the violator to criminal and civil sanctions.
These penalties may include imprisonment for up to four years and a bar from holding office.
State Agency Participation in Ballot Measure Elections
There is another issue involving the misuse of public funds that does not concern the personal use of public funds.
This issue concerns the use of public funds in connection with ballot measure campaigns. Following is a list of what
well cover in this section.
Stanson v. Mott
Endorsements and Informational Materials
Improperly Using Public Funds may Trigger Fines
45
50
Using Public Funds and Ballot Measure Campaigns

The California Supreme Court case of Stanson v. Mott is the cornerstone case concerning the expenditure of public
funds in election campaigns.
In Stanson v. Mott, a private citizen sued the Director of the California Department of Parks and Recreation,
challenging the directors expenditure of Department funds to support passage of a bond act appearing on a
statewide ballot. The Supreme Court unanimously found that the director had acted unlawfully, concluding that in
the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a
partisan position in an election campaign.
p37
9-1-2015
38
10
15
20
Stanson v. Mott
The Supreme Court wrote in Stanson: A fundamental precept of this nations democratic electoral process is that
the government may not take sides in election contests or bestow an unfair advantage on one of several competing
factions. A principal danger feared by our countrys founders lay in the possibility that the holders of governmental
authority would use official power improperly to perpetuate themselves, or their allies, in office....
The Supreme Court further wrote in Stanson ...The selective use of public funds in election campaigns, of course,
raises the specter of just such an improper distortion of the democratic electoral process.
Endorsements and Informational Materials: Subsequently, court cases have said that a government agency may
endorse a measure that is related to its expertise so long as it does not expend funds to promote its passage.
Similarly, a government agency may draft legislation or a ballot measure related to its expertise, but may not
promote the passage of the measure in an election campaign.
Here is Jose Lopez discussing the findings in the Stanson case in regard to the agency participation in ballot measure
elections.
1. The Stanson Court also noted that if a state agency or department has authority to disseminate information
relating to its activities, it may spend funds to provide the public with a fair presentation of relevant
information.
2. The Court found that it would be contrary to the public interest to bar knowledgeable public agencies from
disclosing relevant information to the public, so long as such disclosure is full and impartial and does not
amount to improper campaign activity.
3. To be fair, a presentation must consider all important points and provide equal treatment to both sides of
the issue.
25
30
Improperly Using Public Funds may Trigger Fines: Improper use of public funds also may trigger fines from the
Fair Political Practices Commission for failing to report campaign contributions. In 1996, Sacramento County paid a
$10,000 fine to the Commission in connection with a utility bill insert explaining the effect on the county of several
ballot measures. The Commission ruled that the insert advocated a position on the ballot measures and was not a
neutral and fair presentation of the facts.
Let's Review
TRUE or FALSE: Expenditures made to benefit the public are permissible.
Answer: False. The expenditure must also be authorized to be permissible.
35
Evelyn is an agency secretary. She has just completed a long day and she wishes to make a few telephone calls
before she leaves her office to invite potential contributors to the incumbent Governors campaign fundraising
dinner. Since the people she will be calling frequently have dealings with the state government on a variety of issues,
may she charge these calls to the state? Yes or No.
40
Answer: No. Evelyn may not charge the calls to the state as they are for personal political purposes rather
than for a public purpose.
Let's Review
Ramon is the director of a state department. He wishes to produce informational materials to answer questions about
the impact of a ballot measure. Select the situation in which it is permissible to expend funds for this purpose.
a. The materials stop short of advocating a vote for or against the measure.
b. The materials do not make false statements.
45
c. The materials present a balanced description of the favorable and unfavorable impacts of the measure.
Answer: c. The materials must present a balanced description of the favorable and unfavorable impacts of
the measure.
Remember These Points
Expenditures must be for a public purpose
50
Expenditures must be authorized

Public funds may not be expended for personal use
p38
9-1-2015
39
Information must be fairly presented
Violations bring criminal, civil and administrative sanctions
END QUOTE
5
http://www.downtoearth.org.in/full6.asp?foldername=20081015&filename=led&sec_id=3&sid=1
QUOTE
Travesty of public purpose
10
15
20
25
30
35
40
State governments offer incredulous incentives to lure Tata

IN THE last few days Maharashtra and West Bengal witnessed two diametrically opposite
developments. In Maharashtra, for the first time in the history of this country, affected
farmers voted in a referendum on the upcoming Reliance special economic zone (SEZ).
Initial results suggest that the majority voted against the SEZ. In Singur, Tatas plans kept
slipping into a deeper imbroglio by the day. Several state governments lined up to lure the
company as Tata seriously considered moving outeach one trying to outdo each other in
terms of offering incentives and freebies. Soon as West Bengal made some parts of the
secret deal between the state and the company public, Tata Motors moved the High Court
obtaining a restraining order.
Tatas lawyers argued that basically the agreement between them and the state government
was a trade secret. This means that the Nano project is private commercial venture.
Ironically the state government had acquired land for the project invoking the public
purpose law. The state government and company will have to come clean about what
exactly is the Nano project. If it is a commercial venture the company must directly need
deal with the farmers. And if it is indeed a project meant to serve the public purpose,
details of the agreement must be immediately made public.
What is clear from the deal between the West Bengal government and Tata motors is that
state government are trying to outdo each other to attract investments. This is a race right
to the bottom. The moment Tata Motors threatened to walk away from Singur, several state
governments came forward. The lure of big-ticket project is such that governments are
willing to forgo taxes, forcibly acquire land, give subsidized water and electricity, give
capital subsidies and put thousands of security personnel to man the project. In all this,
industries are having free ride on public money. This is cheap industrialization. Where
not only states are giving fiscal subsidies, they are subsidizing the natural resources
land, water, and energy. In a single economic entity that India is, competition between
states, by the way of subsidizing industrialization, is neither good for economy nor is
it good for environment. And it surely is not for public purpose.
END QUOTE
I may add that I view toll roads that are for private gain but using public build roads must be
deemed unconstitutional
45
http://supreme.justia.com/us/83/678/case.html
50
Olcott v. Supervisors, 16 Wall. 678 U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678
(1872) Olcott v. The Supervisors 83 U.S. (16 Wall.) 678
ERROR TO THE CIRCUIT COURT FOR THE EASTERN DISTRICT OF WISCONSIN
QUOTE
What was considered was the uses for which taxation generally, taxation by any government, might
be authorized, and particularly whether the construction and maintenance of a railroad, owned by a
corporation, is a matter of public concern. It was asserted (what nobody doubts), that the taxing
power of a state extends no farther than to raise money for a public use, as distinguished from
private, or to accomplish some end public in its nature, and it was decided that building a railroad, if
p39
9-1-2015
40
10
15
20
25
30
35
40
45
50
55
60
it be constructed and owned by a corporation, though built by authority of the state, is not a matter
in which the public has any interest, of such a nature as to warrant taxation in its aid.
Page 83 U. S. 690
For this reason it was held that the state had no power to authorize the imposition of taxes to aid in the
construction of such a railroad, and therefore that the statute giving Fond du Lac County power to
extend such aid was invalid.
END QUOTE
U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
QUOTE
In 1870, that is to say, subsequent to the issue of these orders, though prior to the trial of this case in
the court below, the Supreme Court of the State of Wisconsin, in the
Page 83 U. S. 680
case of Whiting v. Fond du Lac County, [Footnote 1] held this act to be void, upon the ground that the
building of a railroad, to be owned and worked by a corporation in the usual way, was not an object
in which the public were interested, and therefore that the act in question was void, for the reason
that it authorized the levy of a tax for a private and not a public purpose. The court there said:
"The question is as to the power of the legislature to raise money or to authorize it to be raised, by
taxation, for the purpose of donating it to a private corporation. We held, in Curtis v. Whipple, [Footnote
2] that the legislature possessed no such power, and the conclusion in that case we think follows inevitably in
this, from the principles stated in the opinion.
END QUOTE
Seems to me the reported $50+ million dollars to stage the Albert Park Grand Prix racing at
Melbourne is a payment to a private corporation that cannot be deemed to be for public
purposes.
U.S. Supreme Court Olcott v. The Supervisors, 83 U.S. 16 Wall. 678 678 (1872)
QUOTE
Page 83 U. S. 693
"The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to
do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the
money of the citizen and give it to an individual, the public interest or welfare being in no way
connected with the transaction. The objects for which the money is raised by taxation must be public,
and such as subserve the common interest and wellbeing of the community required to contribute. . .
. To justify the court in arresting the proceedings and declaring the tax void, the absence of all
possible public interest in the purposes for which the funds are raised must be clear and palpable; so
clear and palpable as to be perceptible by every mind AT THE FIRST BLUSH."
All these expositions of the law of the state were made by its highest court before the county orders now in
suit were issued. They certainly did assert that building a railroad, whether built by the state or by a
corporation created by the state for the purpose, was a matter of public concern, and that because it was a
public use, the right of eminent domain might be exerted or delegated for it, and taxation might be
authorized for its aid. It was the declared law of the state, therefore, when the bonds now in suit were
issued, that the uses of railroads, though built by private corporations, were public uses, such as warranted
the exercise of the public right of eminent domain in their aid, and also the power of taxation.
We are not, then, concluded by a decision, made in 1870, that such public uses are not of a nature to
justify the imposition of taxes. We are at liberty to inquire what are public uses, and what
restrictions, if any, are imposed upon the state's taxing power.
It is not claimed that the Constitution of Wisconsin contains any express denial of power in the legislature
to authorize municipal corporations to aid in the construction of railroads, or to impose taxes for that
purpose. The entire legislative power of the state is confessedly vested in the General Assembly. An
implied inhibition only is asserted.
Page 83 U. S. 694
It is insisted that, as the state cannot itself impose taxes for any other than a public use, so the
legislature cannot empower a municipal division of the state to levy and collect taxes for any other than
such a use,
END QUOTE
Yet we have various governments creating toll ways in private companys hands using public
roads which purportedly are transferred to the private corporation.
p40
9-1-2015
10
15
41
Because the public roads were created by the use of public monies I view the Government cannot
so to say give away public property to a private corporation regardless that this private
corporation may allegedly hand back the land after 30 odd years. Indeed, nor can I view the
enforcement of tolls be dealt with under the laws of the state concerned because that would
effectively mean a taxation by the State on a privately held road (toll way).
The reason people are dissolutioned with a government of the Day is that the persons in
government forgot they are agents of the People and cannot conceal dealings from those who
they represent.
Hence, to improve the fortunes of those in government can be achieved by being honest and open
to the general community so they can then seek their Senators to vote in a certain manner they
approve off. If however the system was to be corrupted as to give whichever party is in power to
gain government and disregard the interest and wellbeing of the general community then
dictatorship will not follow as it already is applied.
I now will quote an article:
20
http://www.smh.com.au/federal-politics/political-news/electoral-reform-now-or-risk-usstyle-gridlock-labor-warns20150106-12iq3w.html
QUOTE
Electoral reform now or risk US-style gridlock, Labor warns

Date
January 6, 2015
Read later
25
Latika Bourke
National political reporter
View more articles from Latika Bourke
30
(PICTURE OMITTED)
Business leaders are calling for electoral reform, arguing micro-party candidates such as now Senator Ricky
Muir are winning influential positions in the Senate despite securing few votes. Photo: Alex Ellinghausen
Prime Minister Tony Abbott's go-slow approach to overhauling the way the Senate is elected will see
Australia's political system "gridlocked" like the United States if it's not fixed, the opposition is warning.
35
40
But Family First senator Bob Day warned the government against proceeding with electoral reform, saying it
would be "very unwise" to try to wipe out the micro-party figures they have to deal with to get their
legislation through the Senate.
The alarm, sounded by Labor's shadow special minister for state Gary Gray, follows calls from a group of
chief executives for Senate reform because of the growth of micro-party senators winning influential balance
of power seats as a result of backroom preference deals.
(PICTURE OMITTED)
Labor's Gary Gray: "You will see more and more gaming of the electoral system in the Senate and the system
will get more and more unworkable." Photo: Sean Davey
45
A survey of business leaders from Australia's biggest companies conducted by the Australian Financial
Review found some also called for longer terms for the House of Representatives (currently three years) and
p41
9-1-2015
42
even voluntary voting to reduce what they said was the political impasses in Canberra that contribute to
economic uncertainty.
Wesfarmers' Richard Goyder said "I would reform Senate election rules so that preference gaming does not
allow the election to high office of people who in their own right attract very few votes, and move to a fouryear federal term."
Victorian Motoring Enthusiast party senator Ricky Muir, who is yet to give his maiden speech, won his sixyear term despite winning just half of 1 per cent of the primary vote in 2013. Senator Day was elected with
just 3.76 per cent of the primary vote.
10
15
But an angry Senator Day hit back at the business leaders and said if they had their way it would
"permanently entrench the Greens" as the "balance of power party". "If Labor and Liberal fall for that they've
got rocks in their head," he said.
He urged everyone to "lay off" the media-shy Senator Muir and said the Victorian newcomer would do "far,
far less damage to the budget than Wayne Swan, Kevin Rudd or Julia Gillard had". He also said the
crossbenchers had passed government legislation Labor had opposed, including the carbon tax and mining tax
repeals.
Senator Day also expressed disbelief that business leaders would be advocating for majority parliaments.
"What these CEOs are arguing is that governments should have an absolute majority and the reason we're in
this mess is because Labor and the Greens had a majority and just trashed [the budget]," he said.
20
And he said the Coalition should be wary about going ahead with any moves that would make it impossible
for independents to be elected on the back of preferences.
"They want to be very careful about ganging up on little players, that's my first word of caution," he said.
Minor party Palmer United leader and businessman Clive Palmer also dismissed the chief executives' views
and told Fairfax Media "these are just Liberal Party hacks trying to rig the results of democracy".
25
Parliament's joint standing committee on electoral matters made the unanimous recommendation in May to
move to optional preferential voting for senators at the next federal election, meaning voters determine where
their preferences are directed and not the parties.
Mr Gray said electoral change "is a genuine economic issue" because without it Australia's political system
would grind to a halt, as seen in the US.
30
"You will see more and more gaming of the electoral system in the Senate and the system will get more and
more unworkable until eventually we get the kind of legislative gridlock that characterises the US," he said.
The committee's recommendation is supported by Labor, the Liberals, Nationals and the Greens, meaning it
would sail through Parliament as soon as it was introduced.
"I scratch my head and think I don't know why they didn't do this 10 months ago," Mr Gray told Fairfax
Media.
35
40
Independent Senator Nick Xenophon agreed with Mr Gray's warning and said a "breakthrough" was needed
to end the "preference whispering" that he believes dudded him of a running mate being elected due to a
"bizarre" deal between the Greens and Family First that saw Senator Day elected. Senator Day says he was
legitimately elected on the back of second and third preferences.
Senator Xenophon said that with the government's legislative agenda hostage to the assortment of
crossbenchers elected under such deals, reform had been shelved to keep them happy.
"I think the government didn't want to alienate the crossbenchers but I think there is a way through this," he
said and urged the Coalition to open new negotiations.
Liberal MP and committee chairman Tony Smith said it was important to proceed with the reforms
recommended but cautioned "it's not critical this month or next month".
p42
9-1-2015
43
"It will be a change that will, if implemented, restore the will of the voter by giving them full power of where
their preferences go and there'll need to be time for adequate explanation," he said.
"But it's not a particularly complicated change," he added.
A spokesman for the Special Minister of State Michael Ronaldson said the government "is currently
considering its response" and noted that the committee is still to report on three more issues, including the
electoral roll and voter identification.
END QUOTE
10
For the above I urge that common sense is used and not mere political party interest in defiance
of what is constitutionally appropriate and permissible and neither it is contrary to the general
communitys interest.
This document is not intended and neither must be perceived to refer to all details/issues.
15
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
Awaiting your response,
20
25
30
35
40
END QUOTE 20150108--G. H. Schorel-Hlavka O.W.B. to Mr TONY ABBOTT PM-Re election issues
In my view retrospective legislative provisions regarding those involved or suspected to be

involved in terrorism is justifiable. This also because the Commonwealth has the constitutional
provided powers to deal with any armed invasion of military or de facto military kind. In that
regard it is merely so to say adjusting existing legislation to provide for current events. However,
if any such laws are directed against ordinary citizens then this may likely be unconstitutional.
QUOTE
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.
END QUOTE
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
For the above it ought to be clear the judges were totally wrong when it comes to using
retrospective legislation to validate State legislation in violation of s109, because as with land
taxation once the Commonwealth legislated the States legislative powers were dead, and the
landholder cannot be robbed of his federal law obtained rights such as uniform land taxes.
Neither can the Commonwealth provide the states with legislative powers by retrospective
legislation or otherwise, in contrast to ss51(xxxvii).
45
This document is not intended and neither must be perceived to refer to all details/issues.
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)
(
50
Awaiting your response,
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
p43
9-1-2015

20150109-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Retrospective Legislation-Terrorism

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

20150109-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Retrospective Legislation-Terrorism

Încărcat de

Drepturi de autor:

Formate disponibile

1

Bill Shorten Bill.Shorten.MP@aph.gov.au

Ref; 20150109-G. H. Schorel-Hlavka O.W.B. to Mr Tony Abbott PM-Re retrospective legislation-terrorism

Hansard 20-4-1897 Constitution Convention Debates

Mr. KINGSTON: Hear, hear.

HANSARD 17-3-1898 Constitution Convention Debates

Hansard 3-3-1898 Constitution Convention Debates

Let us take an example.

existing law'(16) (1830) 6 Bing., at pp 582-583 (130 ER, at p 1405)."

Hansard 27-1-1898 Constitution Convention Debates

Hansard 22-9-1897 Constitution Convention Debates

Hansard 30-3-1897 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Hansard 8-2-1898 Constitution Convention Debates

Sir GEORGE TURNER.-An exclusive power?

Hansard2-3-1898 Constitution Convention Debates;

HANSARD 1-3-1898 Constitution Convention Debates

Commonwealth of Australia Constitution Act 1900 (UK)

(xxviii) the influx of criminals;

It is my view that influx of criminals cannot be limited to mere aliens.

Sub-section (29).-External affairs and treaties.

The amendment was agreed to.

Mr. SYMON.-No amendment, but merely a suggestion as to a matter of drafting.

Hansard 8-2-1898 Constitution Convention Debates

natural sense they bore in the circumstances of their enactment by the

Hansard 8-2-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

RETROSPECTIVE LEGISLATION IN AUSTRALIA: LOOKING

(b) in the course of an occupation;

racial or religious group, as such; and

Effect of sections 6 and 7

"(3) A serious crime may be a war crime by virtue of either or both of

War crime to be indictable offence

(a) an Australian citizen; or

VOTES AMD PROCEEDINGS O F T H E L E G IS L A T I V E ASSEMBLY. No. 38.

Bill Shorten Bill.Shorten.MP@aph.gov.au

Misuse of Public Funds

Public Funds may not be Used for Personal Purposes

Using Public Funds and Ballot Measure Campaigns

Expenditures must be authorized

State governments offer incredulous incentives to lure Tata

Electoral reform now or risk US-style gridlock, Labor warns

MAY JUSTICE ALWAYS PREVAIL

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

Awaiting your response,

In my view retrospective legislative provisions regarding those involved or suspected to be

MAY JUSTICE ALWAYS PREVAIL

Awaiting your response,

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

S-ar putea să vă placă și