20160310-Schorel-Hlavka O.W.B. To County Court of Victoria-Re Buloke Shire Council - APPEAL-15-2502-ADDRESS To The COURT-Supplement 4

Page 1 AP 2502 ADDRESS TO THE COURT Suppl 4, Hearing date 22-2-2016 (or alternative date if allocated)
ADDRESS TO THE COURT (Written submissions) Supplement 4

County Court of Victoria
Ballarat venue (and/or alternative venue)
Cc:
Elliott Stafford and Associated

lawyers@elliottstafford.com.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Mr Martin Pakula, martin.pakula@parliament.vic.gov.au & attorney-general@justice.vic.gov.au
County Court of Victoria crim.reg@countycourt.vic.gov.au
Melinda Hampshire Melinda.Hampshire@courts.vic.gov.au , registry.ballarat@countycourt.vic.gov.au
Reference AP 2502 Buloke Shire Council for State of Victoria (s114 of the constitution) v Schorel-Hlavka
Sir/Madam,
there is no doubt that the courts are concerned, and in certain ways justified by the
escalation of domestic anti-government (so called) sovereign citizens also referred to as
domestic terrorist, in particular where the aim is to cause an avalanche of litigation by
persons who on the one hand accept government provisions such as payments but on the other
hand opposes the rule of law such as legislative provisions regardless that they may be
constitutionally valid. The judiciary seems to be working towards a solution to prevent this
gigantic disruption to the legal processes which in the process obstructs genuine cases to be
heard, due to the time consuming litigation by the so called sovereign citizens.
As I did set out in a previous supplement when a person is part of a society then they by majority
ruled have legislative bills passed through the Parliament and once given Royal Assent will be
valid unless they are in violation to constitutional implied legal principles. Legislative provisions
can be valid but then someone applies it in an unconstitutional/unlawful manner. As such, the
courts are there to adjudicate upon this when the parties or either one of them desire to pursue
this. When however a judicial officer such as His Honour Mullaly J so to say goes of his rocker
and starts abusing/misusing judicial power and attack a party not for any wrong doing but
merely some preconceived perception by His Honour Mullaly J what he has assumed the selfrepresented party is about, regardless no shred of evidence is before the court to substantiate
this, then this is dangerous territory as the independence/impartiality of the judiciary is then so to
say thrown out of the window. This is a very dangerous precedent that cannot be left unattended.
Hence, this supplement to the written submissions ADDRESS TO THE COURT seeks to set
out the association of using sovereign/sovereignty in the context of the Framers of the
Constitution and that the courts by their own conduct are being/becoming the domestic
terrorists. When judicial officers have little to know basic understanding about legal principles
embedded in the constitution then they are far worse than the so called sovereign
citizens/domestic terrorist as it is their inability to adjudicate upon what is
applicable/permissible within constitutional context that causes/create more and more persons to
lose any trust/confidence in the legal processes. What His Honour Mullaly J did I view is a very
serious matter, as one also has to ask how often did His Honour Mullaly J do so to others less
able to speak out about it? And how many other judges are doing likewise? If His Honour
Mullaly J is not himself a sovereign citizen (as part of the sovereign people) then how on
earth can he possibly be a judge? After all as set out below only a sovereign citizen as a person
and part of the nation can have any decision making power, such as to vote for a
representatives in the Parliament.
A person can be a sovereign citizen in a genuine way but also be misguided in claiming that
laws do not apply without his/her consent, this as a sovereign citizen is the very source from
which parliamentarians obtain their representative power to pass Bills in the Parliament (which
when given Royal Assent becomes as is referred to an Act of Parliament), within constitutional
context and as such cannot oppose what is done on his/her behalf. This doesnt mean a
sovereign citizen cannot protest against any legislation deemed inappropriate/inhumane, etc
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Hearing date (22-2-2016?) Ballarat venue
Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502
Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria admin@inspector-rikati.com
(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers
but that is different than blatantly rejecting any form of government when on the other hand
participating and authorising the Government to operate upon legislative provisions.
Any person who opposes the form of government that exist at a certain location, even so this
form of government in all circumstances is legitimate, can exercise their rights to move away
from the particular government jurisdiction, but while remaining in the jurisdiction are bound to
comply with all legitimate legal provisions.
It is this what I view the courts should address and not itself become the terrorist to pervert the
course of justice and commence to bully/verbally attack, etc, by disgraceful conduct and
otherwise the deny/interfere with legal rights of a unrepresented party.
QUOTE email
Romley Stewart
People
David Rode <rodewinsone@hotmail.com>

Today at 12:05 PM (9-3-2016)
Message body
http://www.brisbanetimes.com.au/queensland/alleged-queensland-police-stalker-gets-bailed-20151211gllvoa.html
December 11 2015
A man says he was engaging in "tit for tat" when he allegedly posted pictures of Queensland police officers
on Facebook and asked for help finding their addresses.
Romley Stewart Stover is facing four counts of stalking and two counts of unlawfully possessing a
weapon after guns, computers and recording devices were found at his Cairns home.
domestic terrorist
People
David Rode <rodewinsone@hotmail.com>

Today at 12:27 PM
Message body
http://www.abc.net.au/7.30/content/2015/s4362991.htm
Transcript
LEIGH SALES, PRESENTER: So-called "sovereign citizens" are people who believe in ultimate personal
freedom, meaning they think they're not subject to government laws. They don't pay taxes or fines, they drive
unregistered cars and they can be violent.
In the United States, domestic anti-government extremists have murdered 32 law enforcement officers and
the Department of Homeland Security now says they're the number one domestic terrorist threat.
Tonight, 7.30 can reveal police intelligence showing that sovereign citizens are also taking root in Australia,
with 300 thought to be living in New South Wales alone.
James Thomas reports.
JOHN WILSON, SOVEREIGN CITIZEN: I challenge the jurisdiction of the court. You have no jurisdiction.
No, you are a traitor and a criminal.
http://www.cairnsnow.com.au/home.3.0.html
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A Cairns man who refuses to acknowledge Australian laws and the authority of the police has been ordered to
take down his Facebook page and stop posting photos of officers as part of his court hearing into charges of
stalking and unlawfully possessing a weapon.
Romley Stewart Stover - part of the so-called "sovereign citizen" movement - appeared in Cairns Magistrates
Court yesterday (December 11) to face four counts of stalking and two counts of unlawfully possessing a
weapon, found at his Aeroglen home.
END QUOTE email
Lets consider what sovereign/sovereignty constitutionally that is stands for.

Being the Devine sovereign as in religious context (It must be clarified that the preamble
reference to a Almighty has no bearing upon the constitution itself and indeed s116 of the
constitution was to clarify this as to avoid misconceptions), the sovereign as in money terms,
the sovereign/sovereignty of the Commonwealth/Commonwealth/State Parliament (and so
each House of Parliament), the British Parliament, The Privy Council with Her Majesty (then as
a legislative power), the people ("We cannot federate unless you leave the sovereignty at any
rate, in the final result in the mass of the people." The smaller states will say, "We cannot
federate if you do put the sovereignty in the final result in the people as a whole." and All
that we can now mean by the old phrase is: that realm of autonomy reserved to the states by
the sovereignty of the nation declared through the constitution. and We all recognise the
sovereignty of the people, and their will), or other context it must be clear that
sovereign/sovereignty used in the various context are to be read in each their own context
and not taken out of context to somehow serve a different purpose and/or meaning. A person can
or cannot be a British Subject, citizen, corporation pending in each case the applicable
circumstances. A sovereign citizen can be a person who is part of the sovereign people as if
the plural of sovereign people can be applied then each of those people being a person then
is a sovereign person and where such person holds citizenship of the relevant sovereign
State/Federation then the person is a sovereign citizen if that State/federation.
A terrorist can in constitutional terms be it the government or any Member of Parliament which
seeks to deny the Senate sufficient time to vote for a particular Bill. This is common when for
example the budget (Appropriation and Taxation bills are placed before the Senate without
allowing the in between 3 month period for a second time to be placed before the Senate prior to
the commencement of the new financial year commencing on 1 July following.
Hansard 9-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian
Convention)
QUOTE
Sir JOHN DOWNER.-I know that my right honorable friend, judging probably from the time I am taking
now, thinks that in such a case I would take a long time, if I were in the Senate. I admit that his surmise is
quite right in my case. I admit there are persons on whom this terrorism could not be practised, or on
whom, if practised, it would probably not be effective. But I am thinking of persons of weaker minds and
wills, and I say that, as far as this Constitution is concerned, it is absolutely necessary to put some provision
in this Bill which will strengthen the Senate and prevent it being intimidated in the way indicated. We have
been frittering away the first principles of the Federal Constitution long enough.
END QUOTE
Therefore to assume that a person claiming to be a sovereign citizens is then a domestic

terrorist and should be given special treatment by the courts even so the citizen may do no
more but to pursue his/her legal rights would be a travesty of justice.
This is the kind of conduct that led to the unconstitutional armed murderous invasion into Iraq
upon alleged WMD (Weapons of Mass Destruction) where the real terrorists were those in
Government unconstitutionally authorising this war crime, crime against humanity, etc.
Constitutionally any citizen is a sovereign citizen as every citizen has been provided with the
sovereign right to vote for a particular candidate to represent in the Parliament to legislate for this
sovereign citizen and with other elected representatives from the Parliament.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
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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
Hence an agent can only exercise sovereign powers that is granted by the principal (grantor)
the sovereign citizens.
Hansard 17-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people through
their Parliament the power of the purse-laying at their mercy from day to day the existence of any Ministry
which dares by corruption, or drifts through ignorance into, the commission of any act which is unfavorable
to the people having this security, it must in its very essence be a free Constitution. Whatever any one may
say to the contrary that is secured in the very way in which the freedom of the British Constitution is secured.
It is secured by vesting in the people, through their representatives, the power of the purse, and I venture
[start page 2477] to say there is no other way of securing absolute freedom to a people than that, unless you
make a different kind of Executive than that which we contemplate, and then overload your Constitution with
legislative provisions to protect the citizen from interference. Under this Constitution he is saved from every
kind of interference.
END QUOTE
There are those who call themselves sovereign citizens not because they seek to exercise their
entitled rights as sovereign citizens but to pervert this for ulterior purposes, such as to oppose
the law that were (if so validly within constitutional context) enacted and are applicable to all
citizens. This is similarly to when a person was gay meaning happy where now this has been
hijacked to mean also being a homosexual. Far from being happy I understand reported 40%
end their lives by suicides. It is therefore important that we do not confuse the miss-usage of
well-established terminologies. Certainly not have some judges at the bench declaring or
assuming that a self-represented litigant is some deviant sovereign citizen for merely
challenging the validity of certain legislation and/or action done by or on behalf of the
government or a person purporting to use delegated powers where this doesnt involve at all as
His Honour Mullaly J on 30 October 2016 in the county court of Victoria appeared to me to
claim that I was some person who held the law applied to everyone else but myself. As such by
his statement without any further explanation he appeared to me to assign me to being some kind
of domestic terrorist rather than being a sentry. In my view it was His Honour Mullaly J who
by this became the domestic terrorist to oppose a proper consideration of the legal issues
involved and so aid and abet to the domestic terrorism I was opposing.
None of my writings ever have been to the nature that somehow I was excluded from ordinary
legal provisions. I have quoted below the correspondence 20160308-G. H. Schorel-Hlavka
O.W.B. to ICACs Operation Ricco -etc which may also underline that I am a person who
pursues the proper application of law provided it is constitutionally appropriate and as such not
ULTRA VIRES. No matter I dispute the validity of the so called rates (unconstitutional land
taxation) I nevertheless pay my rates. This as I seek to do so before the courts. But I view when
you have a judge like His Honour Mullaly J then predetermined views undermines anyone to
pursue justice. Likewise with motor vehicle and driver licenses charges, I view they are
excessive and over the top and nowhere reflecting the real cost involved but I continue
nevertheless to pay them.
The real terrorism is within the courts where judges adjudicate without having a clue the basic
principles of the true meaning and application of the constitution. We have this corrupt legal
system where legal practitioners are only to provide legal advice even so they may do no
more but lead a client on the garden path because they themselves are guessing at the expenses
of the client what might or might not be applicable.
.
If the information/legislation is too burdensome for an unlettered person to

understand/comprehend then it is the legislation that is at fault. It must be deemed to be ULTRA
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VIRES in total where it prevents not only an ordinary person but even those legal practitioners
to understand/comprehend the totality or even a particular legislative provisions.
.

QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten,
END QUOTE
Hence a CONSTITUTIONALIST like myself seeks to explain it all as much as possible, that
even judges who lack the ability to do it for themselves may/can learn from it.
WATSON v_ LEE (1979) 144 CLR 374;( JUDGE3 STEPHEN J.)
QUOTE
As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB 349, at p
361 , speaking there of sub-delegated legislation, "there is one quite general
question . . . of supreme importance to the continuance of the rule of law
under the British constitution, namely, the right of the public affected to
know what that law is". The maxim that ignorance of the law is no excuse forms the "working
hypothesis on which the rule of law rests in British democracy" but to operate it requires that "the
whole of our law, written or unwritten, is accessible to the public - in the sense, of course, that at any rate
its legal advisers have access to it at any moment, as of right".
END QUOTE
Again;
QUOTE
it requires that "the whole of our law, written or unwritten, is

accessible to the public - in the sense, of course,
END QUOTE
Yet, as I discovered time and time again, that I had to wait weeks for a copy of the Gazette
(even so paid for it) because it had to come from CanPrint (Government printers), as no copies
were available but only could be ordered for later collect ion/delivery. As such the system has
been set up to deliberately deny a citizen to be aware of the legislation the moment it has been
enacted. Yet, this rot goes on and on and legal practitioners ignore to raise this for their clients
far too often. As such legislation purportedly applicable from the day it is gazetted may not be
available for weeks for citizens to be able to be aware of it. In the meantime the citizen somehow
could be held accountable for alleged violation of legislation that technically cannot be
applicable as the Gazette was not published and available when required. In fact as I proved
under FOI Act obtained documentation the Gazette was not printed until after the day the
Proclamation was to have taken effect! As such the proclamation was invalid!
I understood that His Honour Mullaly J stated he didnt want to waste court time, but this His
Honour Mullaly J I view does on a grand scale, when blatantly ignoring the real legal issues.
That is why so many people pursue their legal rights because the courts appear to be incompetent
to provide for them in the first place resulting in a litany of further litigations.
If judicial officers like His Honour Mullaly J were to dismiss charges upon the basis that the
legislation is too technical to be understood by the accused and/or his legal representatives then
and only then we may find that legislation will be revised to a more plain English, as the
constitution is to be.
QUOTE
The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail to
exercise a liberal discretion in striking out words which they do not understand, and that they will put in
words which can be understood by persons commonly acquainted with the English language.
END QUOTE
Clearly which can be understood by persons commonly acquainted with the English language implies
that unless the wording in the constitution and any by laws enacted by the
Commonwealth/States within the ambit of the constitution are as such to be understood by the
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unlettered person any legislation violating this is unconstitutional. It is not for the High Court of
Australia as I understand it to do, at times to ponder what might be the meaning of words in
foreign jurisdictions because the ordinary person doesnt engage in that. Words must have a plain
English language meaning are ordinary used by the citizens who which it applies.
When we have however that judges now seem to be indoctrinated to deal with persons they
perceive to be sovereign citizens as being domestic terrorist whereas I if anything in my
writings over the decades pursue the true meaning and application of the constitution then His
Honour Mullaly J proved in my view that he in fact became the domestic terrorist to abuse and
misuse his judicial powers to deny me a fair and proper hearing (Pre-Appeal hearing). This much
may also be because judges assume to be the 3rd arm of government when in fact constitutionally
and by the 2-1901 published Letters Patent they can but only be both independent and impartial!
It is also the conduct of His Honour Mullaly J that causes me to considerable time and
effort to present to the court my detailed set out why the court must not derogate a selfrepresented person merely for opposing unconstitutional legal provisions and/or unlawful
conduct by a person claiming to act under State delegated powers.
QUOTE
Sir EDWARD BRADDON (Tasmania).-It is with something approaching to awe that I venture to differ
from the construction placed upon the amendment by the [start page 539] leader of the Convention. The
honorable and learned member is a lawyer, and a very astute one. I am a simple layman, who, when he reads
the English language, outside of certain Acts of Parliament, puts a reasonable construction upon what he
reads.
Mr. BARTON.-Is not that claiming infallibility?
Sir EDWARD BRADDON.-I do not claim infallibility; I have read the proposed amendment, as I
think any average schoolboy and a good many adults would read it.
END QUOTE
QUOTE Mr. SYMON (South Australia).That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton has
described, of choosing or setting up a code of laws to interpret the common law of England. This
Constitution we are framing is not yet passed. It has to be handed over not to a Convention similar to
this, not to a small select body of legislators, but to the whole body of the people for their acceptance or
rejection. It is the whole body of the people whose understanding you have to bring to bear upon it,
and it is the whole body of the people, the more or less instructed body of the people, who have to
understand clearly everything in the Constitution, which affects them for weal or woe during the whole
time of the existence of this Commonwealth. We cannot have on the platform, when this Constitution is
commended to the people, lawyers on both sides, drawing subtle distinctions, which may or may not be
appreciated by the people.
END QUOTE
HANSARD 16-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
I think that that is the principle that Parliament has always asserted in England and elsewhere. As to the word
"person," the British Interpretation Act of 1889, which will be largely applied to the construction of this
statute by the Imperial authorities, provides that where the word "person" is used, unless the Act otherwise
provides, the word "corporation" shall be included.
END QUOTE
As such for example the word marriage (in ss51(xxi) of the constitution) must be understood to
have the meaning as was applicable governing the British Interpretation Act of 1889. It would
require an s128 of the constitution referendum to amend the meaning of the word marriage,
if this is so desired.
It is nothing less than terrorism where a judge seeks to deny a party his/her legal rights.
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Judicial officers should understand that their very position depends upon the true meaning and
application of the constitution and therefore they defy their own oath of office where they violate
the legal principles embedded in the constitution themselves and/or aid/abet with others to do so.
In Re O (infants) (1971) Ch 748,754 and 755
QUOTE
In my considered opinion the law now is that if an appellate court is satisfied that the decision of the lower
court is wrong, it is it's duty to say so and act accordingly.
END QUOTE
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty is
to the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be
plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as I
conceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, It
is not, in my opinion, better that the court should be persistently wrong than that it should be ultimately
right..
Whatever else may be said with respect to previous decisions - and it is necessary here to consider the
principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are no circumstances
countervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court
should be expressed.
END QUOTE
And
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
In my opinion, where the prior decision is manifestly wrong, then, irrespective of the
consequences, it is the paramount and sworn duty of this court to declare the law truly....
END QUOTE
There ought to be absolutely no doubt that I was denied a proper pre-appeal hearing, as for
example His Honour Mullaly J failed from onset to question Counsel for Buloke Shire Council
what he was doing at the Bar table where no Notice of Appearance was filed, neither was any
application for Leave to file and serve out of time such application, hence the appeal was
unchallenged.
When a judge blatantly disregard the basic legal requirements and instead go off to seek to
belittle/bully/harass the appellant/Objector then clearly this place in question, at least in my view,
how competent is His Honour Mullaly J and perhaps other judicial officers like him, and do they
need to be re-educated to learn the basics of litigation and how to conduct themselves in legal
proceedings? This also considering some of the issues the court so far ignored to address:
Some of the issues but not in any of priority
OBJECTION TO JURISDICTION
Fire Prevention Notice in violation to the provisions of the Country Fire Authority Act 1958
Fire Prevention Notice contains demands exceeding delegated powers.
Fire prevention Notice in valid in law
Infringement Notice invalid in law based on invalid Fire prevention Notice.
Summons invalid in law based on Invalid Infringement Notice.
Summons invalidly issues as Infringement Noticed failed to have been withdrawn.
Summons hearing in the wrong court venue
Failure to serve full brief
No evidence to prove jurisdiction.
No evidence whatsoever to justify 20 August 2015 orders at St Arnaud venue
No evidence to legally justify 17 September 2015 orders at St Arnaud venue
Failing to file and serve Notice of Appearance regarding appeal
Failing to file and serve for Leave to file and serve out of time Notice of Appearance
Failure to provide 27 October 2015 requested brief
Failing to comply with 30/10/2015 order to serve via Australia Post by 9/11/2015 full brief
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Failing to request leave to serve out of time full brief.

Providing misleading Form 11 statement dated 25/11/2015 re 18/3/2013 alleged hearing
Provide different Form 11 for 22/2/2016 hearing without full brief
Failure by State Government to provide relevant FOI material requested 9/12/2015
Not to overlook purported evidence obtained by tress passing! As such no evidence exist to support any
charge!
In my view the proper legal procedures that His Honour Mullaly was to have followed was:
What was the matter before the Court?

Why was the Appellant caused to file an appeal without being provided sealed orders and
reason of judgment of the 20 August 2015 and 17 September 2015 hearings before the
Magistrates Court of Victoria at St Arnaud?
What were the identities and positions of the judicial officer in each case on 20 August
2015 and on 17 September 2015?
What were the precise orders of 20 August 2015 and why was the matter heard then and
if not why was it adjourned?
Was the matter on 20 August 2015 adjourned because of the OBJECTION TO
JURISDICTION and if so why was no order issued to indicate this?
Did the Magistrates Court of Victoria at St Arnaud invoke jurisdiction and so where are
the orders and reason of judgment to show the OBJECTION TO JURISDICTION was
dismissed.
If the Magistrates Court of Victoria didnt dismiss the OBJECTION TO JURISDICTION
then on what legal basis did the court nevertheless issue the 17 September 2015 orders?
In my view a Pre-Appeal hearing is to ensure that any party that is to appear on at the appeal
hearing has complied with all legal requirements applicable and is ready to proceed. In my view
a competent judicial officer would have been unable to ascertain this in view of what is
stated/listed above. In my view what appeared to eventuate was that His Honour Mullaly J was
obsessed/side tracked by this sovereign citizen and/or selfrepresented issue that has so to say
hovered around the courts that judges are directed to specifically deal with those kind of cases
perceived to unduly interfere with the normal proceedings in a court, that His Honour Mulally J
in the process commenced to deal with me likewise albeit in gross error and so allowed Buloke
Shire Council to get around legal requirements, etc, When a judge pre-judges my position as a
party not on what I stated and/or what evidence (there was none) is before the court but merely
upon the perception of the judge without any factual basis then I view this is a very serious issue
as it undermines the credibility of the courts. It places in question if there will be any judge who
will not likewise have been perhaps indoctrinated against self-represented litigants!
I will therefore further set out below what I view constitutionally sovereign(ty) stands for,
including reference to person, etc.
QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a
person has as a British subject-the right of personal liberty and protection under the laws-is secured by
being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by
the laws are not among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states.
END QUOTE
.

QUOTE
Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
Sir JOHN FORREST.-They could not take away the rights of British subjects.
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Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with the view of
inserting the words "the Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to any citizen
within its borders. I think my answer to Sir John Forrest was given a little too hastily when I said that every
citizen of the British Empire must be a citizen of the Commonwealth. The Commonwealth will have power
to determine who is a citizen. I do not think Dr. Quick's amendment is necessary. If we do not put in a
definition of citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an inherent right to
determine who should have the rights of citizenship within its borders.
Mr. KINGSTON.-That it had the right of keeping him out.
END QUOTE
Convention)
QUOTE
Mr. SYMON (South Australia).-I believe that my honorable friend's (Mr. Glynn's) feeling is that, by
leaving the words as they are, the clause might be interpreted to enable the federal authorities to demand from
the state the detention and punishment of persons who were not convicted, but I do not apprehend that
there is the slightest difficulty on that score. I do not think any court would interpret the words to mean
the punishment of a person accused and not convicted.
END QUOTE
QUOTE Mr. OCONNOR (New South Wales).Surely every person who has the suffrage-the right to vote within the Commonwealth-and who lives
within the Commonwealth, is a citizen of the Commonwealth, and entitled to all its privileges, including
the right to take part as the Commonwealth provides in the framing of the laws.
END QUOTE
QUOTE The HON. E. BARTON (New South Wales)[8.36]:
Persons who have taken the oath of allegiance to a foreign power are not to be classed in the same category as
citizens of the country for the purpose of joining in legislation.
An HON. MEMBER: And not to be trusted?
The Hon. E. BARTON: Not to be trusted, prima facie!
END QUOTE
.

QUOTE
Mr. HIGGINS.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
It must be clear that the terminology used by the Framers of the Constitution are; British
subject, to make persons subjects of the British Empire., with the consent of the
Imperial authority, What is meant is a dual citizenship in Mr. Trenwith and myself. That
is to say, I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
dual citizenship., we are all alike subjects of the British Crown.
QUOTE
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
p9 10-3-2016 Hearing date (22-2-2016?) Ballarat venue Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502
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?
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
QUOTE
Mr. SYMON.-There is no man in Australia who is more profoundly versed in constitutional law than Mr.
Isaacs, and he knows that every point and every question has been the subject of more or less debate and
discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at all times if
occasion requires it. At the same time, it does not affect the principle that there should be a definition of
"citizen," either in the form suggested by Dr. Quick or by Mr. Barton. I will be quite content. The
principle is what I am contending for: The principle that our labours will be incomplete unless we make the
rights of citizens or subjects in one state to extend to the citizens of another state who may go from one state
to another. There ought to be no possibility of any state imposing a disqualification on a person in the
holding of property, or in the enjoyment of any civil right, simply because be happens to belong to
another state. That would not give us the uniformity of citizenship we all desire, and therefore I am willing
that the word "citizenship" should be defined as Dr. Quick suggests, with perhaps some modification. I also
support the suggestion from the Chair that the two propositions might be considered together. The clause
would do something to meet the difficulty, not perhaps finally or conclusively, as Mr. Isaacs, said, but at any
rate to a large extent and almost completely.
[start page 1788]
END QUOTE
HANSARD 16-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE
Mr. BARTON (New South Wales).-No, there would be no prohibition in that respect. The offices of
Speaker and Chairman of Committees are not offices of profit under the Crown. They are parliamentary
offices, and Parliament has always retained a power over its own Estimates to the extent that really the
Speaker and President of the local Chambers have always exercised a right to submit their own Estimates,
and those Estimates, as a rule, as far as I know in practice in my own colony, are altogether untouched by the
Government of the day. Now, these are political offices, but not offices of profit under the Crown. I think that
that is the principle that Parliament has always asserted in England and elsewhere. As to the word "person,"
the British Interpretation Act of 1889, which will be largely applied to the construction of this statute by the
Imperial authorities, provides that where the word "person" is used, unless the Act otherwise provides, the
word "corporation" shall be included.
END QUOTE
QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
END QUOTE
.
Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE
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The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail
to exercise a liberal discretion in striking out words which they do not understand, and that they will
put in words which can be understood by persons commonly acquainted with the English language.
END QUOTE
Convention)
QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution.
END QUOTE
.
In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey (at p 926 of HLC (p
725 of ER)):
QUOTE
(T)he Legislature has no power over any persons except its own subjects, that is, persons natural-born
subjects, or resident, or whilst they are within the limits of the Kingdom.
END QUOTE
From the Hansard quotations (listed below) we can notice the usage regarding
sovereign/sovereignty in brief:
p11
This would not be carrying out the principle of the local Legislatures being sovereign within their own
spheres
A principle of the British Constitution is that the Sovereign is the fountain of justice
then the Sovereign will be the head of our judiciary, as she is the head of the court of appeal in England.
I maintain that the governor-general of the future dominion of Australia must be the appointee of her Majesty
the Queen, our sovereign, who is the apex of that structure, and whose name we revere and respect in this
colony equally as in any other [start page 165] part of her Majesty's dominions
Is not that to say that the sovereign of Great Britain is as absolutely at member of our legislature here as she
is of the legislature at home?
Federation cannot exist, co-ordinate houses cannot exist and work together unless they both recognise the
sovereignty of the people, and yield to the sovereignty of the people; and the attempt, either here, or in any
other free country where the people have been accustomed to exercise their liberties, to set up a council of the
states-call it by what name you like-as something which is going to stand in the way for any length of time, or
even for a short time, of the pronounced will of the people, I think will be found to end in a disaster.
In the United States the people have never parted with their sovereignty. There, in any amendment of the
Constitution, the question is first of all submitted to the people by convention, and the people have in no case
parted with their sovereignty either to the Senate or to the House of Representatives.
The colonies as they exist now, or the states as they will be in the future, are represented in their sovereignty
at present by their legislatures. Whether the upper house is a nominee or an elective house makes no
difference. It is the legislature that represents the sovereignty of the state, and that which represents the
sovereignty of the state, in my opinion, should have the power of nomination to the senate. I hope, therefore,
that the idea of electing senators from the body of the electors will be given up. It is not a sovereign idea at
all-quite the reverse.
It is put in another way by Mr. Bryce, where he says that the two branches of the legislature in America are
both servants of the same master, whose will they must ultimately obey, and that that master is the sovereign
people of America, And the master of both the houses of this commonwealth, if federation is brought about,
will be the people of Australia. I do not care in what way you frame the constitution, the people of Australia
will mould and modify it in accordance with their ideas and sentiments for the moment, although its outward
form may remain the same
The hon. member uses the word "responsible," which simply means this: that ministers take the brunt of the
advice which they give in the exercise of sovereign power of any kind.
It is absolute power to administer the sovereignty of the state!
The words the hon. gentleman has just suggested, conveying sovereign power to ministers, would be amply
sufficient.
The provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her
Majesty in the Sovereignty of the United Kingdom of Great Britain and Ireland.
The United States is the only great country in the world in which the two Houses are really equal and coordinate. Such a system could hardly work, and therefore could not last if the Executive were the creation of
either or of both, nor unless both were in close touch with the sovereign people.
A better security as a whole, and a stock that would be worth so many sovereigns whenever they took it, as
the Consols are taken; and if you can offer these terms to the bondholders they will accept them.
10-3-2016
It is carried on under a Parliamentary sovereignty, which is absolutely opposed to the whole spirit of
Federation. In the very essence of the compact it is impossible.
The Commonwealth of Uri, by the peculiar circumstances of its history, grew into an independent and
sovereign State.
This Act if passed will be agreed to by the Imperial Parliament-the sovereign Parliament of Great Britain.
It is reasonable for us to go to our people and tell them that, under Federation and not unification, certain
principles must be allowed, and that we have introduced into the Lower House by the principle of the
initiation of financial legislation, all the main elements of the sovereignty of that House, which sovereignty
would be sufficient for all practical purposes.
This Act shall bind the Crown and the Executive Officers of the Commonwealth, and its provisions referring
to Her Majesty the Queen shall extend to Her heirs and successors in the Sovereignty of the United Kingdom
of Great Britain and Ireland.
You have not it so in England because the Parliament there is Sovereign, but you have it in the Federal
Constitution, because you have a Parliament that is only a part of the Constitution, and that Constitution
must protect those provisions of the Constitution which are threatened with infringement.
A Sovereign Parliament has punishing power. A Legislature which is created by Act of Parliament, and
with the equivalent powers conferred upon it, as they are conferred by section 8, has, in the case of New
South Wales and Tasmania, no power except such as can be gathered from the necessary implication of the
words of the Constitution.
At one time the Privy Council, with the Sovereign, was the legislative body.
This would leave the matter optional with the colony or the suitor, but do not let the Constitution take away
the right of the subject to appeal for justice to the Sovereign.
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.
No. It has the effect of the maintenance of the States' individuality-that the State is absolutely sovereign with
regard to the internal regulation of its own traffic, just as sovereign as the Parliament is with regard to its
general powers in maintaining equality of trade; and therefore, unless there is a conflict between that internal
regulation and the sovereign power of the Parliament, the State stands supreme.
With all due deference to my hon. friend Mr. Barton, I cannot forget that I presented a petition from several
thousand inhabitants of New South Wales asking that there should be some recognition of the Divine
Sovereignty in this Constitution.
With all due deference to my hon. friend Mr. Barton, I cannot forget that I presented a petition from several
thousand inhabitants of New South Wales asking that there should be some recognition of the Divine
Sovereignty in this Constitution.
You do not force him to take anything. But by giving [start page 189] him a quid pro quo-a sovereign for a
sovereign-and by giving him interminable stock, and the better security of the commonwealth, you give him a
slight advantage.
The equal vote allowed in the senate is in this view at once a constitutional recognition of the sovereignty
remaining in the states, and an instrument of the preservation of it.
I do not think that it need be feared that the doctrine of the sovereignty of the several states will again
seriously threaten this development.
The Civil War fixed the principle of our polity, that the nation alone is the sovereign, that the nation alone
is the real state. We do still hear, indeed, the phrase "sovereignty of the states within their respective
spheres": but this only signifies that we have not yet invented the new forms of expression to fit the new
order of things. All that we can now mean by the old phrase is: that realm of autonomy reserved to the
states by the sovereignty of the nation declared through the constitution.
The United States is the only great country in the world in which the two houses are really equal and coordinate. Such a system could hardly work, and, therefore, could not last if the executive were the creature
of either or both, nor unless both were in touch with the sovereign people
"We cannot federate unless you leave the sovereignty at any rate, in the final result in the mass of the
people." The smaller states will say, "We cannot federate if you do put the sovereignty in the final
result in the people as a whole."
All the people from end to end of the colonies profess the greatest possible loyalty to the Throne and to the
Sovereign who sits upon it.
What they were doing there was this: They were creating a new sovereign state, above which, of course, from
the very nature of the case, there was no superior. In connexion with the creation of a new state a sovereign
State-they felt it necessary in Germany to make some provision for an Imperial citizenship. As to the United
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States, they omitted, although creating a sovereign State, to define what was citizenship of that new State-the
nation-and they found it necessary, certainly through the negro question, to define at a later time what a
citizen was. But here we do not stand in the same position. We have the citizenship of the British Empire
on the one hand, and the citizenship of the state on the other
I deny altogether that to oppose the referendum is to show disrespect to the sovereignty of
the people, because I utterly decline to admit that trust in the people is best proved by a
frequent summons to the ballot-box, or that you best vindicate the sovereignty of the
people by a perpetual procession to the polling booth.
That is because both Houses have agreed-and, both Houses having agreed, it is not a question of settling
dead-locks, but a question of putting the matter to the sovereign people by way of veto, just its matters are
now put to the Crown here by way of veto.
We all recognise the sovereignty of the people, and their will.
The sovereignty of the states is preserved in one clause and is taken away in the next. The states retain their
sovereignty over subjects that are left to them only so long as they do not [start page 2273] come into conflict
with the Commonwealth law. The moment they do that the state sovereignty goes down.
Hansard quotations:
SOVEREIGN(TY)
Hansard 11-1-1890 DEBATES OF THE CONFERENCES
QUOTE Mr. CLARK.The question of the management of post offices and telegraphs has been touched upon by Mr. Deakin, who
seemed to think that these institutions were amongst those which must be left to local Legislatures. I am not,
at present, prepared to follow the honorable gentleman in that opinion. I think the post office ought to be, in a
sense, a national institution; and I very much doubt that a uniform rate of postage can be secured unless it be
under a Central Government. If the Post offices and telegrapbs were under the control of the several colonies,
and power were left to the local Legislatures to create inequality of rates, irritation and discontent would
certainly be produced. This would not be carrying out the principle of the local Legislatures being sovereign
within their own spheres, and in regard to the matters especially committed to their care. In order to secure
uniformity of rates, "As well as efficiency of management, I should be inclined to follow the example of
America, and place the post office under a Central Government. This, however, is a matter of detail, which
may not properly be within the range of our discussions at the present time. As Mr. Deakin mentioned the
matter, however, I thought I was perfectly justified in also referring, to it. The honorable gentleman also
referred to the advantages which would arise from a Federal Judiciary. I think he said all that could be said
upon that question. I would add to his remarks upon that head, the opinion that the colonies would be able to
obtain from such an institution what, to me, as a lawyer, and I presume to Mr. Deakin and Sir Samuel Griffith
as lawyers, is of great consideration, and that is a higher education for our colonial judges. A judge, if he is to
be worthy of his position, and desires to do good work for his country, must continue to learn after he goes on
the Bench as well as before. It appears to me that where a system of gradation of courts exists, the judges will
learn both from above and below. Every judge who knows how to take advantage of his position can, and
does, learn from the able men who practise in the court before him. He will also learn from the judges of the
court above him, to unlatch an appeal lies from his decisions. At the present time, the only appeal we have is
to the Privy Council. It is rarely invoked in Tasmania, and I find it is rarely invoked in some others of the
smaller colonies. I do not know that it can be said to be frequently invoked even in the larger colonies. The
consequence is, that the judges in several of the colonies sit without that sense and feeling of responsibility
which we know would have a beneficial effect did they but realize that their work is open to the review of a
higher court. If we had a Federal Court of Appeal, its aid would be invoked much more frequently than is the
aid of the Privy Council now invoked, and the results, I believe, would be beneficial.
END QUOTE
QUOTE
Sir JOHN HALL.-A principle of the British Constitution is that the Sovereign is the fountain of justice, and
if Mr. Playford's experiments were tried it would cause greater dissatisfaction than results from the present
system.
END QUOTE
QUOTE Mr. MACROSSAN.The only representative, however, who really approached the subject, seemingly, with a full knowledge of it,
was Sir John Hall. It must be known to every member of this Conference that the Sovereign is the fountain of
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justice, and that a subject cannot be prevented from appealing to Her Majesty for justice if he has not
obtained it elsewhere. Therefore the establishment of a Federal Court of Appeal would not prevent an appeal
from that judiciary to the Privy Council in London.
END QUOTE
Hansard 6-3-1891 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Sir PATRICK JENNINGS:
With regard to the constitution of the judiciary, I believe that if we had a supreme court as a high court of
appeal here, to deal with all legal questions, ninety-nine cases out of every hundred would be more speedily
[start page 127] and more accurately dealt with than if they were sent to the Privy Council at home. You, sir,
said, and I believe correctly, that the Sovereign would still be the head of the supreme court of appeal in
England; and, if we still have the golden link of the Crown, then the Sovereign will be the head of our
judiciary, as she is the head of the court of appeal in England.
END QUOTE
QUOTE Mr. FITZGERALD:
. I have the very highest respect for the supreme court judges of the various colonies. I have the pleasure of
being intimate with many of them. I have had many opportunities of observing their legal acumen, their high
abilities, and their high character; but I still say, without in the slightest degree reflecting upon them, that I
hope wiser counsels will prevail in this Convention; that we shall never sever that link which binds us to the
throne of England by making the sovereign the fountain of justice. I sincerely trust that no change will be
made in that system, which I have not yet heard complained of, and which, if altered, might be the means,
and the very serious means, of stopping capital from flowing into this country.
END QUOTE
QUOTE Mr. FITZGERALD:
Another case I understood the hon. member, Sir George Grey, to put was that be favoured the
appointment of the governor-general of the future dominion of Australia being a colonial appointment.
But as long as this country is united to the Crown of England-and I hope that it is a very long day off
indeed when it shall cease to be so-I maintain that the governor-general of the future dominion of
Australia must be the appointee of her Majesty the Queen, our sovereign, who is the apex of that
structure, and whose name we revere and respect in this colony equally as in any other [start page 165]
part of her Majesty's dominions.
END QUOTE
QUOTE Sir GEORGE GREY:
If we send home a great portion of our laws for the Queen's assent is not that to bind us to Great
Britain in the most solemn way? Is not that to say that the sovereign of Great Britain is as absolutely at
member of our legislature here as she is of the legislature at home?
END QUOTE
QUOTE Mr. WRIXON:
At present it is one of the noblest characteristics of our empire that over the whole of its vast area, every
subject, whether he be black or white, has a right of appeal to his Sovereign for justice. That is a great right,
and a grand link for the whole of the British empire. But it is more than that. It is not, as it might be
considered, a mere question of sentiment, although I may say that sentiment goes far to make up the life of
nations. It is not merely that; but the unity of final decision preserves a unity of law over the whole empire.
The Privy Council at any rate, when it decides, decides finally, and for the whole of the empire. If you
provide that your court of appeal in Australia shall be final, this evil may arise: The Supreme Court of
Austra- [start page 217] lia will decide, say, a commercial question on the construction of a charter party in
one way this year; while next year the Judicial Committee of the Privy Council, composed, I will say for the
sake of argument, of a very strong court, will decide the very same question in another way. We should then
be in this curious position: that we should have a different law from that of the rest of the empire on a great
mercantile question. There would then be a feeling in our local courts as to whether they should follow the
decision of the court of appeal in Australia, or the decision which they might consider to be the better law of
the judicial committee in England. I believe there is a vast gain in unity of administration and interpretation
of the law, and in having in all these distant and scattered dependencies, not only the decisions of the English
judges to go upon, but also the legal literature of England, the books and comments upon them, to guide us as
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to the law on different subjects. All lawyers know how valuable that is. All that, however, would be lost when
you cut away the connection in judicial matters between the dominion and the old country.
END QUOTE
QUOTE Dr. COCKBURN:
Federation cannot exist, co-ordinate houses cannot exist and work together unless they both recognise the
sovereignty of the people, and yield to the sovereignty of the people; and the attempt, either here, or in any
other free country where the people have been accustomed to exercise their liberties, to set up a council of the
states-call it by what name you like-as something which is going to stand in the way for any length of time, or
even for a short time, of the pronounced will of the people, I think will be found to end in a disaster.
END QUOTE
QUOTE Mr. MOORE:
In the United States the people have never parted with their sovereignty. There, in any amendment of the
Constitution, the question is first of all submitted to the people by convention, and the people have in no case
parted with their sovereignty either to the Senate or to the House of Representatives.
END QUOTE
QUOTE Mr. MACROSSAN:
Then there is a question which I think hon. gentlemen have overlooked, which will in a great measure modify
the action of both the senate and the house of representatives. Do not let us forget the action of party. We
have been arguing all through as if party government were to cease immediately we adopt the new
constitution. Now, I really do not see how that is to be brought about. The influence of party will remain
much the same as it is now, and instead of members of the senate voting, as has been suggested, as
states, they will vote as members of parties to which they will belong. I think, therefore, that the idea of
the larger states being overpowered by the voting of the states might very well be abandoned; the system has
not been found to have that effect in other federal constitutions. Parties have always existed, and will
continue to exist where free men give free expression to their opinions. Parties exist in the American
Senate, and if there were any disposition on the part of the smaller states in America to combine in any
way to act unfairly towards the more popular states, party influences would intervene, and the same
thing will take place in our senate, and it will take place also in our house of representatives. I have not
the slightest fear of the two more populous colonies-New South Wales and Victoria-combining to do
anything to injure the less populous states as such; neither have I any sympathy with the idea that ministers
should be selected from [start page 435] any particular state or group of states. I think that the member of the
house of representatives who is called upon to form a ministry should be at perfect liberty to select what
members he pleases, no matter from what state they may come; and I am quite certain they would act as they
do now under our present constitutions; they would act fairly towards each part of the federal union, just the
same as ministries act now towards each part of the colonies they govern. In this matter we have forgotten
entirely the action of party. It will act as a powerful solvent to prevent unfairness either in the house of
representatives by the more populous colonies, or in the senate by the less populous colonies, and I
hope hon. members will not forget that. A question has been raised on this particular subject as to the
nomination of senators. I believe entirely in the American system of nomination-nomination through the
legislature. I know that my hon. friend, Dr. Cockburn, from South Australia, has an objection to this, because
certain houses are nominated instead of being elected. That is an objection which exists in my mind also; but,
nevertheless, I do not think it is one which should stand against the election of senators by the legislatures,
because the senate above all things is supposed, and will be supposed, to represent the states. The colonies as
they exist now, or the states as they will be in the future, are represented in their sovereignty at present by
their legislatures. Whether the upper house is a nominee or an elective house makes no difference. It is the
legislature that represents the sovereignty of the state, and that which represents the sovereignty of the state,
in my opinion, should have the power of nomination to the senate. I hope, therefore, that the idea of electing
senators from the body of the electors will be given up. It is not a sovereign idea at all-quite the reverse.
Besides there are objections equally as strong as that of which I have heard some hon. members speak. As to
the ministry being responsible to both houses, I think that is an utter impossibility. I do not see how a
ministry can be held in any way to be responsible to both houses of parliament, especially as one of
those houses is to have a continuity of existence.
If the senate was to be placed on the same footing as the house of representatives, and was to be
dissolved on the same occasions, there might be something in the proposal. But as it will have a
continuous life, and as whatever definite responsibility it may have will be through the nominations of
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the legislatures of the different states, I do not see how a federal ministry can be responsible to any
house but the house of representatives.
END QUOTE
QUOTE
Mr. MUNRO: I do not say we are; but the hon. gentleman told us that the arguments made use of in the
committee were sufficient to convince him that he was wrong, and I thought the same course might have been
followed on the present occasion, because if he was wrong in his views then most assuredly he is wrong now.
The hon. member tells us that one of the great effects of electing our own governor-general would be to put
him in the position of Abraham Lincoln-to give him similar [start page 565] powers and a similar position.
Under our form of government that position is occupied by the Prime Minister, and no matter whether
the governor-general were elected or not, he could not under constitutional government exercise the
functions which Abraham Lincoln exercised. No governor-general could undertake that responsibility,
whether appointed by the Crown or not. If the hon. member's argument were carried out to its
legitimate issue the people of England ought to elect their sovereign. That is really what it means. The
governor-general is to appear here as the representative of the Queen. Under our constitution the
Queen is to be in some sense present among us. The only way in which we can have her present is
through her representative, and if her representative is to be elected by us, and not by herself, he will
be not her representative, but ours. To carry the hon. member's argument to its legitimate issue,
therefore, he ought to say that the people of the empire should elect their own monarch. That is what it
means. If the hon. member is not prepared to say that, he ought not to go to the extent to which he
wishes to go. I do not think, however, that this is a matter to which we ought to devote much time at
this stage; because, since we have already agreed-and we have done so that we are to have a form of
constitutional government under the Crown, we must allow the Crown the power of being represented
in the union. If we carry out the proposal of the hon. member, the result would be that we must
abandon the proposed union, and have a union in a different direction, certainly not under the Crown.
The hon. member said the result of his proposal would be to strengthen the union with England; but I
think few persons will agree with him in that respect. I think the people of Australia will agree with me
that the result of his proposal would be to weaken the union. We should, in fact, begin to ask why we
were connected with England at all. If we could appoint our own governor-general, if we could carry,
on all our legislation, and do the whole of our business, the question would soon be asked what we had
to do with England, and then where would the connection be? I do not see the necessity for considering
the hon. member's proposal at the present time. I am proud of being a citizen of the great British
empire, and shall never fail to be proud of that position. I have no desire to weaken a single link
binding us to that empire, whether as regards the appointment of a governor-general or anything else.
I desire to hold those links sacred, and if possible to strengthen them, and I am satisfied that in making
his proposal the hon. member is not consulting the feelings of the people of Australia.
END QUOTE
QUOTE Mr. BAKER:
It is put in another way by Mr. Bryce, where he says that the two branches of the legislature in America are
both servants of the same master, whose will they must ultimately obey, and that that master is the sovereign
people of America, And the master of both the houses of this commonwealth, if federation is brought about,
will be the people of Australia. I do not care in what way you frame the constitution, the people of Australia
will mould and modify it in accordance with their ideas and sentiments for the moment, although its outward
form may remain the same.
END QUOTE
QUOTE
Sir SAMUEL GRIFFITH: It is difficult to know what is our meaning which it is desired to put beyond
doubt. I agree that in this bill our meaning should be placed beyond doubt, but we must first find out what is
our meaning. The hon. member uses the word "responsible," which simply means this: that ministers take the
brunt of the advice which they give in the exercise of sovereign power of any kind. That does not give them
any additional power. The word "responsible" only means in that case that the ministers take the blame. It is
not a question of giving authority, it is a question as to who is to be punished for the improper exercise of
authority. The word "ministers" means no more than "officers of state." It is only another epithet. Ministers of
the Crown means officers of the Crown where there is a Crown.
END QUOTE
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QUOTE
Mr. DEAKIN: In Great Britain there is the peculiarity that, living under an unwritten constitution, it is
never known what new departures may be taken.
Sir SAMUEL GRIFFITH: It is absolute power to administer the sovereignty of the state!
Mr. DEAKIN: Exactly; surely all the limits that we want of that absolute power in the commonwealth is, so
far as it relates to the commonwealth, to exclude all prerogatives relating to the empire outside the
commonwealth. There is no pretence to claiming the power of proclaiming peace or war, or of exercising
power outside our own boundaries; but let us have it stated plainly in the constitution that the officers here,
called heads of departments, shall be absolutely ministers of the Crown. We know what that means.
END QUOTE
QUOTE
Mr. DEAKIN: As far as I am acquainted with their judgment, the Privy Council did not enter upon that
particular issue at all. They have not even considered the point, to say nothing of giving an opinion upon it.
The judgment, therefore, remains for what it is worth as a judgment of the Supreme Court. If the words my
hon. colleague desires to introduce had been inserted in the Victorian Constitution Act, the ministers of
Victoria would have had greater power than they now possess. The words the hon. gentleman has just
suggested, conveying sovereign power to ministers, would be amply sufficient. Those words should be
embodied in this constitution.
Sir SAMUEL GRIFFITH: That is to say, that all the royal prerogatives should be exercised by the
governor-in-council!
Mr. DEAKIN: Exercised by him through his ministers. Unless that claim be put forward in our constitution,
we shall have taken and be taken to have accepted something less, and we shall be always liable to be
challenged with having exceeded the authority of the Constitution with which her Majesty has been pleased
to endow us. Why should we leave the matter open to doubt? Why should we leave the ministers of the
commonwealth liable to be challenged in the exercise of their duties to the people they represent? Why
should we not now put forward the claim of ministers of the commonwealth to act for her Majesty and for the
people of the commonwealth as if they were her Majesty's imperial ministers, excepting, of course, in cases
where imperial interests are concerned, which would necessarily attach to the British Government and the
Imperial Parliament? The hon. member, Sir Samuel Griffith, seems to have considered a phrase that would be
acceptable, and if, especially after this debate, we were to fail to adopt some such words, we shall be taken to
have admitted and accepted at the outset a limited authority which, I am sure, the commonwealth would
never willingly accept.
END QUOTE
QUOTE
2. The provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of
Her Majesty in the Sovereignty of the United Kingdom of Great Britain and Ireland.
Constitution of the Commonwealth of Australia.
Power to proclaim Commonwealth of Australia.
END QUOTE
QUOTE
Mr. HIGGINS: It would be a case of "pull, devil; pull, baker." You must trust to the Federation. After
all, it is the people for whom we legislate-flesh and blood, as Mr. Carruthers has remarked, and not things.
By the way, I might state with regard to the United States having the power to amend Money Bills that it has
been commented on in Dr. Bryce's book, and there is a short passage that I will read, although I am sure it is a
book familiar to most members. It says:
The United States is the only great country in the world in which the two Houses are really equal and coordinate. Such a system could hardly work, and therefore could not last if the Executive were the creation of
either or of both, nor unless both were in close touch with the sovereign people.
END QUOTE
QUOTE
Mr. SOLOMON: A better security as a whole, and a stock that would be worth so many sovereigns
whenever they took it, as the Consols are taken; and if you can offer these terms to the bondholders they will
accept them.
END QUOTE
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QUOTE
Dr. COCKBURN: Much as I desire to follow Mr. Reid in his desire to make a model Parliament after the
pattern of England, I do not think it can be done, for you cannot make a Federation out of a unification.
However much we may admire the Government of England as a pattern, it is altogether foreign to the genius
of Federation. It is carried on under a Parliamentary sovereignty, which is absolutely opposed to the whole
spirit of Federation. In the very essence of the compact it is impossible.
END QUOTE
QUOTE
Mr. BARTON: Every assumption is more or less falsified in politics. There is only one way out of the
difficulties of Legislatures, and that is to make them the depositories of common sense when they know who
their master is, when they know under what principles they are there, and when they know the limit to which
reasonable objection can extend. While there have been instances of conflict having been carried beyond
reasonable grounds, the clause I have read from the Bill of 1891 provided against the possibility of the
recurrence of cases of that kind, or almost the possibility, and, for the rest, if we must provide for deadlocksand it seems to be a large portion of the intention of this Convention to provide for deadlocks-we are referred
to the Teutons. I have the book, "The Growth of the British Constitution," which my learned friend Mr.
Isaacs referred, and I should like to read one passage which shows the circumstances under which we get
something from the Teutons. On page 8 the author, Mr. Freeman, says:In the institutions of Uri and Appenzell, and in other of the Swiss Cantons, which have never departed from
the primeval model, we may see the institutions of our own forefathers, the institutions which were once
common to the whole Teutonic race, institutions whose outward form has necessarily passed away from
greater States, but which contain the germs out of which every free Constitution in the world has grown. Let
us look back to the earliest picture which history can give us of the political and social being of our own
forefathers. In the Germany of Tacitus we have the picture of our institutions of the Teutonic race before our
branch of that race sailed from the mouths of the Elbe and the Weser to seek new homes by the Humber and
the Thames. There, in the picture of our forefathers and brethren, seventeen hundred years back, the full
Teutonic assembly, the armed assembly of the whole of the people, is set before us well-nigh the same in
every essential point as it may still be seen in, Uri, Unterwalden, Glarus, and Appenzell. One point, however,
must be borne in mind. In the assemblies of those small Cantons it is only the most democratic side of the old
Teutonic Constitution which comes prominently into eight. The Commonwealth of Uri, by the peculiar
circumstances of its history, grew into an independent and sovereign State. But in its origin it was not a
nation; it was not even a tribe. The Landesgemeiden of which I have been speaking are the assemblies, not of
a nation, but of a district; they answer in our own land, not to the assemblies of the whole kingdom, but to the
lesser assemblies of the shire or the hundred. But they are not, on that account, any the less worthy of our
notice; they do not, on that account, throw any less light on the common political heritage which belongs
alike to Swabia and to England. In every Teutonic land which still keeps any footsteps of its ancient
institutions the local divisions are not simply administrative districts traced out for convenience on the map.
In fact, they are not divisions at all; they are not divisions of the kingdom, but the earlier elements out of
whose union the kingdom grew. Yorkshire by that name is younger than England, but Yorkshire by its elder
name of Deira is older than England; and Yorkshire or Deira itself is younger than the smaller districts of
which it is made up, Craven, Cleveland, Holderness, and others The Landesgemeinde of Uri answers, not to
an assembly of all England, not to an assembly of all Deiri, but to an assembly of Holderness or Cleveland.
But in the old Teutonic system the greater aggregate was simply organised after the model of the lesser
elements, out of whose union it was formed. In fact, for the political unit, for the atom which joined with its
fellow atoms to form the political whole, we must go to areas yet smaller than those of Holderness and Uri.
That unit, that atom, the true kernel of all our political life, must be looked for in Switzerland in the
Gemeinde or Commune; in England-smile not while I say it-in the parish vestry.
Mr. ISAACS: But he says, notwithstanding that, it forms the basis of the whole political Constitution, and
he says more, that we are coming back to it.
Mr. BARTON: We go to the Teutons for the referendum. These are the circumstances under which the
referendum arose, and why should we be told to go to the Teutons to seek for such expedients? It was said by
one hon. member yesterday [start page 389] that our modern dissolution arises out of the referendum. It may
arise out of it, but the germ of the modern dissolution is not in the referendum. I think it was Mr. Trenwith
who attempted to show that the referendum was applied through the power of dissolution.
Mr. TRENWITH: I said it was an application of the principle, but in a clumsy manner.
Mr. BARTON: He proceeded to argue that the germ of it was to be found in the referendum.
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Mr. ISAACS: I do not think you are doing Mr. Trenwith justice.
Mr. BARTON: I think I am. I had a note which I made at the time, and on which I am making this
statement.
Mr. TRENWITH: I did not use the word "germ" at all.
Mr. BARTON: Mr. Trenwith is such a fair debater that I must be more than abundantly fair to him. If I
have misquoted him, I apologise; but my argument is not affected. We have been asked to go to the Teutons,
but I suppose there were others before the Tuetons who decided matters in the same way.
Dr. COCKBURN: Greece and Rome.
Mr. BARTON: And others before them. Wherever you found a tribe congregated together the affairs of
that tribe were settled by their little referendum, and we may go back to the cave-dwellers, who were quite as
familiar with their referendum as with their megatherium. How does that recommend the referendum to us?
We are told that we have gone back 100 years to the time when men were imprisoned for sedition by
advocating short Parliaments and manhood suffrage, but if it is a sin to go back 100 years, which I claim we
have not done, what term must be applied to that sort of political research which with a political spade and
mattock goes to dig up the referendum from amongst the bones of the megatherium.
Mr. ISAACS: My hon. friend misunderstood me. My advocacy of the referendum rests on its utility and its
application to our Constitution.
END QUOTE
QUOTE
Mr. BARTON: This Act if passed will be agreed to by the Imperial Parliament-the sovereign Parliament of
Great Britain.
END QUOTE
QUOTE
Mr. MCMILLAN:
It is reasonable for us to go to our people and tell them that, under Federation and not unification, certain
principles must be allowed, and that we have introduced into the Lower House by the principle of the
initiation of financial legislation, all the main elements of the sovereignty of that House, which sovereignty
would be sufficient for all practical purposes.
QUOTE
QUOTE
Mr. BARTON: Because the Bank of Australia failed, and the Bank of Australasia did not.
Amendment negatived; clause as read agreed to.
Clause 2.-This Act shall bind the Crown and the Executive Officers of the Commonwealth, and its
provisions referring to Her Majesty the Queen shall extend to Her heirs and successors in the Sovereignty of
the United Kingdom of Great Britain and Ireland.
Mr. HIGGINS: I cannot quite understand what is the meaning of the words:
Binding the Crown and the Executive Officers of the Commonwealth.
I should think the object was to show that the Act was to bind the Crown in its prerogative. I object to
having the executive officers treated under different laws to those to which ordinary people are treated.
Ordinary people are bound by any Act under the Imperial Parliament, and why should the executive officers
not be bound? All we want to say is to bind the Crown. I would suggest that the words:
The Executive Officers of the Commonwealth be left out.
Mr. REID: It is for the impeachment of Ministers.
Sir GEORGE TURNER: You would get put on the roost then.
The CHAIRMAN: Does the hon. member for Victoria suggest any amendment?
Mr. HIGGINS: No, but I decline as one of Her Majesty's subjects to have the executive officers of the
Commonwealth treated as some higher class of beings than other persons. Executive officers are bound by
the law, no matter what is said.
Mr. BARTON: May I ask my hon. friend whom, he takes to be indicated by the executive officers of the
Commonwealth? Does he take it to be Ministers or those who act in execution of the laws of the
Commonwealth?
Mr. HIGGINS: I want to find out.
Mr. BARTON: What is intended is this. That the Act shall extend to bind the Crown, that is to the extent to
which it affects the prerogative it shall be effectual. Then it extends to the executive officers of the
Commonwealth, so far as I understand the expression, in this way, that wherever, by any provision in this
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Act, an ordinary executive officer is affected as to the performance of a duty, he may not be enabled to
escape from the performance of that duty by setting Up the prerogative of the Crown.
Mr. HIGGINS: I might mention that one of the matters which foreign writers have admired most of all in
our English Constitution is that there is no distinction in the Constitution between any executive officer and
any ordinary subject. DeLolme, Montesquieu, and all of them have pointed out that there has never been any
distinction made between persons who hold high distinctions and those who do not. I only wish to prevent the
inference that that strong principle of constitutional law is being forgotten in Australia. We should not use
words which are not required. This Act is binding in the ordinary way on all persons, and all that we have to
express is that it should be binding on the Crown. I move:
That the words "and the Executive Officers of the Commonwealth" be left out.
Mr. SYMON: I think the hon. member is perfectly right. If the object is to bind the prerogative of the
Crown that is done by the earlier words of the section.
END QUOTE
QUOTE
Mr. BARTON: It is not in the judiciary's power, as given in this Bill. But the question whether, what
appears on the face of a law is within the provisions of the Constitution or not, is a totally different one, and
that question alone the arbiter of the Constitution has a right to decide. I desire to adhere to the compromise
of 1891. I have been endeavoring to do so against some delegates, who, however, will now find me faithful in
adhering to it on their behalf. Where there are matters not matters of procedure-where the effective rights of a
[start page 585] component part of the Constitution are involved-the Constitutional principle is that the arbiter
of the Constitution-must be allowed to protect those rights. You have not it so in England because the
Parliament there is Sovereign, but you have it in the Federal Constitution, because you have a Parliament that
is only a part of the Constitution, and that Constitution must protect those provisions of the Constitution
which are threatened with infringement. I shall resist all amendments in these respects because I consider the
principles, which are altogether principles of justice, ought to protect Parliament in the exercise of its internal
powers, and protect the people as to what is on the face of a law a breach of the Constitution
END QUOTE
QUOTE
Sir EDWARD BRADDON: I think that the amendment which the hon. member has proposed must be considered in
connection with clause 8, page 4 of the Bill, which provides:
The privileges, immunities, and powers of the Senate and of the House of Representatives respectively, and of the
Committees and the members thereof respectively, shall be such as are from time to time declared by the Parliament, and
until declared shall be those of the Commons House of Parliament of the United Kingdom, and of the Committees and the
members thereof respectively, at the establishment of the Commonwealth.
If the hon. member's amendment is to include the power of punishment it will scarcely be necessary. The effect of the
decision of the Privy Council to which my hon. friend has alluded must be read in connection with the Constitutions of
the several colonies, which were affected at the time of the pronouncement of these decisions. In New South Wales, and I
think in Tasmania, what exists at the present time is a Legislature as distinct from a Parliament. A Sovereign Parliament
has punishing power. A Legislature which is created by Act of Parliament, and with the equivalent powers conferred
upon it, as they are conferred by section 8, has, in the case of New South Wales and Tasmania, no power except such as
can be gathered from the necessary implication of the words of the Constitution.
END QUOTE
QUOTE
Mr. GLYNN: Well, what is the use of them? You are going to fix an Executive Council that is not required.
Todd, the leading authority on parliamentary government in the colonies, says we should stick to the
principle of having only Cabinet Ministers in the Council. The Queen's Privy Council is retained more for the
honor than for its use. At one time the Privy Council, with the Sovereign, was the legislative body. The
monarch called the Council together whenever it was considered necessary, but as time went on the
legislative function of the Council was taken over by the people, and the Privy Council was kept up simply as
an honor. The Council has not been called upon, except as regards the members of the Cabinet, to discharge
any executive function since it signed the Utrecht. I say that, under this proposal, we will be putting in the
Constitution the possibility of having an Executive Council who can sign proclamations and advise the
Governor-General, but who still need not be in the slightest degree responsible to the Parliament.
END QUOTE
QUOTE Sir EDWARD BRADDON:
The Privy Council does not sit during the long vacation, nor will the Supreme Court of Australia sit
continuously. For these and other reasons I should be sorry to see the appeal, as of right to the Privy Council,
p20 10-3-2016 Hearing date (22-2-2016?) Ballarat venue Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502
that is now enjoyed in every case of reasonable importance, taken away and conferred upon another tribunal
which holds out no one advantage over the Judicial Committee. If the Supreme Court of Australia is to be
constituted a Court of Appeal, I should say let it be left optional to each of the colonies to adopt it as its Court
of Appeal by its own legislative enactment, or else let the Supreme Court have only concurrent jurisdiction
with the Judicial Committee, leaving the suitor to elect to which tribunal he will appeal. This would leave the
matter optional with the colony or the suitor, but do not let the Constitution take away the right of the subject
to appeal for justice to the Sovereign.
END QUOTE
QUOTE
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
QUOTE
Mr. BARTON: No. It has the effect of the maintenance of the States' individuality-that the State is
absolutely sovereign with regard to the internal regulation of its own traffic, just as sovereign as the
Parliament is with regard to its general powers in maintaining equality of trade; and therefore, unless there is
a conflict between that internal regulation and the sovereign power of the Parliament, the State stands
supreme.
END QUOTE
QUOTE
Mr. WALKER: With all due deference to my hon. friend Mr. Barton, I cannot forget that I presented a
petition from several thousand inhabitants of New South Wales asking that there should be some recognition
of the Divine Sovereignty in this Constitution. It is within the knowledge of most of the members of this
Convention that in the Church of England there have been prayers that the deliberations of this Convention
might tend to the benefit of the whole of these colonies. I know that has also been done in other churches, and
therefore I do think that in a sense it is true there has been a public, desire for God's blessing upon our work. I
would remind this Committee that at the opening of the Convention, or shortly after, the President read a
telegram he received from the Secretary or State for the Colonies, on behalf of Her Majesty, in which, if I
remember rightly, there is an allusion to the guidance of Divine Providence. It seems to me only fair that this
motion should be considered. I may say that I have the authority of the Premier of New South Wales, Mr.
Reid, also that of Mr. Carruthers and Sir Joseph Abbott, for saying that, had they been here, they would have
supported Mr. Glynn in his proposal. It seems to me that there will be no harm in mentioning here that at the
Convention in Bathurst the following clause was carried unanimously:
That this Convention, acknowledging the government of this world by Divine Providence, commends the
cause of Australian Federation to all those who desire to promote the material, moral, and social advancement
of the people of Australia.
END QUOTE
QUOTE
An HON. MEMBER: How can you force a man to take what he is not agreeable to take?
The Hon. H. DOBSON: You do not force him to take anything. But by giving [start page 189] him a quid
pro quo-a sovereign for a sovereign-and by giving him interminable stock, and the better security of the
commonwealth, you give him a slight advantage.
The Right Hon. Sir G. TURNER:The Hon. H. DOBSON: I quite agree that that is so; and, therefore, I am inclined to think that the quid pro
quo we will have to give will be a little more than you otherwise would give.
END QUOTE
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QUOTE
Amendment (Hon. E. BARTON) agreed to:
That the words "the Constitution, of the Commonwealth of Australia" be omitted, with a view of inserting
the following words:-"the Commonwealth of Australia Constitution Act."
Clause, as amended, agreed to.
Clause 2. This act shall bind the Crown, and its provisions referring to her Majesty the Queen shall extend to
her heirs and successors in the sovereignty of the United Kingdom of Great Britain and Ireland.
The Right Hon. Sir G. TURNER (Victoria)[10.48]: I should like to call attention to these words, "This act
shall bind the Crown." We know we have to send this bill to the Imperial Parliament to be passed. I cannot
see why these words should be inserted. Of course the act will not bind the Crown unless the Crown is
mentioned. But throughout the whole of the bill the Crown will be mentioned, and therefore the Crown will
be bound. Sir Samuel Griffith has drawn attention to this matter. He says:
This section begins with the words "This act shall bind the Crown"-an expression which is at least unusual
in statutes, and which is surely unnecessary. How can it be suggested that an act in which the Crown is
continually mentioned, and which establishes a new dominion under the Crown, does not bind the Crown?
I fully concur with these remarks. I certainly would urge upon the hon. gentleman that be should omit these
words.
The Hon. R.E. O'CONNOR (New South Wales)[10.49]: The hon. member will admit that it should be put
beyond question that every portion of this act binds the Crown. It is true there are a number of sections which
expressly bind the Crown, but this provision is inserted in order that it should be put beyond all doubt that
every portion of the constitution binds the Crown. Although the form of expression is unusual, it has this to
recommend it, it is very concise and carries out exactly our meaning. I see no reason for omitting the words.
END QUOTE
QUOTE
Mr. WISE:
The equal vote allowed in the senate is in this view at once a constitutional recognition of the
sovereignty remaining in the states, and an instrument of the preservation of it. It guards them againstwhat they meant to resist as improper-a consolidation of the states into one simple republic, and on the
other hand the weight of the other branch counterbalances an undue preponderance of state interests
tending to disunion. Another and most important advantage arising from this ingredient is the great
difference which it creates in the elements of the two branches of the legislature.
END QUOTE
QUOTE The Hon. I.A. ISAACS:
Hon. members do not need me to remind them that the two sets of governmental organs referred to are, the
federal government, having charge of those matters which are of common import, and the state governments,
which have charge of matters which are purely provincial. At pages 408 to 410, Dr. Burgess says:
I do not think that it need be feared that the doctrine of the sovereignty of the several states will again
seriously threaten this development.
The Civil War fixed the principle of our polity, that the nation alone is the sovereign, that the nation
alone is the real state. We do still hear, indeed, the phrase "sovereignty of the states within their respective
spheres": but this only signifies that we have not yet invented the new forms of expression to fit the new
order of things. All that we can now mean by the old phrase is: that realm of autonomy reserved to the
states by the sovereignty of the nation declared through the constitution.
END QUOTE
QUOTE
The Hon. I.A. ISAACS: That really was because at the time the American Constitution was formed the
exclusive right of the House of Commons in financial matters had not been thoroughly established!
Mr. GLYNN: It is at all events a justification. Mr. Bryce goes further than saying it is merely a justification;
he says it was one of the reasons for this power being granted in all state constitutions. Therefore, my
allegation on that point was correct. But Bryce goes on to the point out that you cannot possibly have coordinate powers wherever there is responsibility to either one or two houses. We know that that applies to the
British Constitution. We have at times the responsibility of the two houses, and we know this responsibility
has led to continuous changes of ministries. He says:
The United States is the only great country in the world in which the two houses are really equal and coordinate. Such a system could hardly work, and, therefore, could not last if the executive were the creature of
either or both, nor unless both were in touch with the sovereign people.
END QUOTE
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10-3-2016
QUOTE Mr. TRENWITH:
Having in view the influence of this proposal upon the possible success of this federal movement, I should
like briefly to review the attitude of the people of Australia with reference to their rights and powers as
citizens. In each of the Australian colonies we began with a comparatively restricted franchise, and we
developed a system of plural voting. In several of the colonies the franchise has been made complete,
unrestricted, and plural voting has been abolished; thus we see the tendency is to demand in the states equal
rights as citizens. There can be no disputing that that tendency is growing. It has been recognised that that
tendency is growing, so that the principle of manhood suffrage, and the possibility of adult suffrage have
been placed in this bill. Now, let us look at what we are doing. We are creating a dual citizenship, a
citizenship which makes a man a citizen of his state and a citizen of the commonwealth. Experience has
shown us that the citizens in the state will not brook unequal citizenship-they will not brook one voter having
more power than another voter. We have acknowledged that to be so by creating, with reference to the
election of senators and members of the house of representatives equal powers to the states within their states.
Now, have we any right to assume that when we create another form of citizenship the commonwealth
citizenship the same man who would not brook unequal citizenship in the state will submit to unequal
citizenship in the commonwealth?
The Hon. H. DOBSON: It is a dual concern!
Mr. TRENWITH: I am dealing with the true form of citizenship. From the inception of the
commonwealth, if we are successful in establishing one and it depends largely upon whether we deal wisely
or unwisely with this proposal whether we shall be successful when we have established the commonwealth,
every man inside the commonwealth, in addition to being a, citizen of a state, is a citizen of the nation that is
created out of this effort.
The Hon. H. DOBSON: You want the citizen of the state to be merged into the citizen of the nation!
Mr. TRENWITH: I want him to retain his dual position; but, in relation to it, to maintain a proper
principle of equality with each other citizen. As a citizen of the state equal with any other citizen of the state,
and the citizen of the commonwealth equal with any other citizen of the colony.
END QUOTE
QUOTE
Mr. HIGGINS (Victoria)[3.14]: I had not meant to speak in this general debate, because I intended to
confine my remarks to the specific proposals which, I understand, will be brought forward for the prevention
of deadlocks; but, having regard to the course which the debate has taken, I think I should avoid
misunderstanding better by speaking now, when, as it seems to me, we are approaching nearer and nearer to
the dilemma which I feared from the very start of our deliberations in Adelaide. The dilemma appears to be
although it is not, I am happy to say, quite expressed yet; and I hope it will never be a real and final dilemma
that the larger states will say, "We cannot federate unless you leave the sovereignty at any rate, in the final
result in the mass of the people." The smaller states will say, "We cannot federate if you do put the
sovereignty in the final result in the people as a whole."
I feel, when we approach a dilemma of that sort, that we should use language of the greatest moderation. It is
a stage at which the greatest self-restraint is necessary, if we are to bring out any good result from our
deliberations.
END QUOTE
QUOTE
Mr. MCMILLAN.I do not want it to be presumed for one moment that we desire to give to the Federal Parliament the right to
interfere in trade disputes and in the ordinary business and commerce of the country. The less the
Government has to do with these things the better, and the more clearly it is understood that the Government
is not to interfere excepting for the preservation of law and order the sooner these disputes will be likely to
end.
END QUOTE
QUOTE
Mr. GLYNN (South Australia).-In connexion with the point raised by Dr. Quick that this provision might
lead to an amendment of the Constitution otherwise than under clause 121, I would like to suggest that the
reference would be as to a specific point. It might be to settle a particular matter of legislation, but not a
general power. But we are still in this dilemma: That the state might, by referring the matter to the state
Parliament, deprive itself of the right of repeal, and thus take away the general power of legislation
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from the state Parliament. As I understand, a state Parliament cannot at present abrogate its own
powers. It might pass a particular Act or it might repeal an Act, but here the Parliament of the state is
giving away some power without the consent of the people of the state. We are giving power to the state
Parliament to give away their sovereign powers without the consent of their people.
Mr. DEAKIN.-To commit political suicide.
END QUOTE
QUOTE
Sir EDWARD BRADDON (Tasmania).All the people from end to end of the colonies profess the greatest possible loyalty to the Throne and to the
Sovereign who sits upon it. We all, I believe, desire to remain members of the great British Empire, and we
wish to continue British subjects with all the rights of British subjects, and of those rights this appeal to the
Privy Council is a very considerable one. I would repeat what was urged at the Convention in 1891, that by
depriving the people of these colonies of the right of appeal to the Privy Council, we should be sapping the
foundation of that Constitution, which is avowedly a Constitution under the Crown.
END QUOTE
QUOTE
Mr. ISAACS (Victoria).-I hope we shall agree to Dr. Quick's proposal. I do not consider the case of
Germany or the United States and the question of inserting a definition of citizenship in this Constitution as
at all analogous. What they were doing there was this: They were creating a new sovereign state, above
which, of course, from the very nature of the case, there was no superior. In connexion with the creation of a
new state a sovereign State-they felt it necessary in Germany to make some provision for an Imperial
citizenship. As to the United States, they omitted, although creating a sovereign State, to define what was
citizenship of that new State-the nation-and they found it necessary, certainly through the negro question, to
define at a later time what a citizen was. But here we do not stand in the same position. We have the
citizenship of the British Empire on the one hand, and the citizenship of the state on the other. What we
want to do is, not to insert a definition of citizenship of the Commonwealth in the Constitution, but to give
power to the Parliament to provide against any contingencies which may arise, but which are out of our range
of vision at present. We wish to provide for that possible case, and at the [start page 1760] same time not to
create a definition either too extensive or too narrow. What we should do, therefore, is to follow the course
proposed by Dr. Quick, and simply insert power to legislate with regard to Commonwealth citizenship. If
that is found to be unnecessary, it will never be acted upon, but, if it is found to be necessary, it can be acted
upon to the extent of the necessity; and the definition can also be altered if it is found on trial to be either too
wide or too narrow. I have, therefore, much pleasure in supporting the proposal.
Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick, and I trust that it will
be carried. I cannot conceive that in the adoption of legislation on this subject Parliament would do aught else
than make the definition uniform and of general application. If there was any necessity for making that clear,
the insertion of the words "uniform citizenship of the Commonwealth" would accomplish that, but I hardly
think it is necessary. I am impressed with the importance of taking power as occasion arises to define
what shall constitute citizenship of the Commonwealth; and the Bill at present is altogether deficient in
regard to giving any power to the Commonwealth Parliament to legislate on this subject.
END QUOTE
QUOTE Mr. WISE.I deny altogether that to oppose the referendum is to show disrespect to the sovereignty of the people,
because I utterly decline to admit that trust in the people is best proved by a frequent summons to the ballotbox, or that you best vindicate the sovereignty of the people by a perpetual procession to the polling booth. I
trust the people, I know the people should rule; but history and experience alike show that the people rule
best when they are free to make their choice of their instruments, and that they rule most to their own
advantage when those instruments have, through the institutions of the country, become competent to govern
and have fitted themselves to satisfy the requirements of a free people.
END QUOTE
QUOTE
Mr. ISAACS.-If measures were rejected, they were rejected by both the states, and the people. My friend
(Mr. Glynn) is now talking of federal laws, whereas I am talking of constitutional questions. In relation to
federal laws, the matter does not go to the people and to the states, but to the people only. That is because
both Houses have agreed-and, both Houses having agreed, it is not a question of settling dead-locks, but a
p24
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question of putting the matter to the sovereign people by way of veto, just its matters are now put to the
Crown here by way of veto.
END QUOTE
QUOTE
Mr. MCMILLAN.-We all recognise the sovereignty of the people, and their will.
END QUOTE
QUOTE
Mr. REID.-Yes. The sovereignty of the states is preserved in one clause and is taken away in the next. The
states retain their sovereignty over subjects that are left to them only so long as they do not [start page 2273]
come into conflict with the Commonwealth law. The moment they do that the state sovereignty goes down.
END QUOTE
I will now quote material provided to me including emails regarding sovereign

citizen/domestic terrorist:
QUOTE
Re: domestic terrorist
Jim <jim.sovereign@optusnet.com.au>
Today at 5:53 PM (9-3-2016)
Gerrit H.
To
Message body
Gerrit,
No doubt about it, you're a bad boy and "domestic legal terrorist" in the way you terrorise the judiciary and
bureaucracy. Who do you think you are exposing all the corruption, fraud and rot in the system? Haven't you
got anything better to do with your time in retirement? [grin]
A prosecutor once accused me with a similar line to the one your quoted: "You are one of the persons who
hold the law applies to everyone else but you." I replied, "Man made law applies to no human against their
free will and consent. I did not create any of the laws nor am I the owner of any laws so why should they
apply to me if I do not agree with them?" The prosecutor just stared at me and didn't offer any further reply,
and neither did the magistrate try and enter the argument. That taught them not to judge a book by its cover. _Jim
----- Original Message ----From: Mr Gerrit H. Schorel-Hlavka O.W.B.

To: David Rode
Cc: Mr G. H. Schorel-Hlavka O.W.B.
Sent: Wednesday, March 09, 2016 2:46 PM
Subject: Re: domestic terrorist
David,
much appreciated the link and details. It now dons to me that he (His Honour Mullaly J) perceive me as one
of those "sovereign citizens" as he commented as I recall it "You are one of the persons who hold the law
applies to everyone else but you." This without any evidence before the court to justify his comment. And
while I specifically seek the enforcement of the rule of law against anyone, including judges/lawyers. As such
I am not at all as His Honour Mullaly J made me out to be.
p25
10-3-2016
Gerrit
Constitutionalist & Consultant
MAY JUSTICE ALWAYS PREVAIL
Mr. G. H. Schorel-Hlavka O.W.B., GUARDIAN
(OFFICE-OF-THE-GUARDIAN)
107 Graham Road, Viewbank, 3084, Victoria, Australia
Ph (International) 61394577209
.
Email; inspector_rikati@yahoo.com.au
The content of this email and any attachments are provided WITHOUT PREJUDICE, unless specifically
otherwise stated.
If you find any typing/grammatical errors then I know you read it, all you now need to do is to consider the
content appropriately!
A FOOL IS A PERSON WHO DOESN'T ASK THE QUESTION BECAUSE OF BEING CONCERNED
TO BE LABELLED A FOOL.
END QUOTE
QUOTE
RE: domestic terrorist
People
jacqui cornwell <jacquic122@hotmail.com>

Today at 4:25 PM (9-3-2016)
Mr Gerrit H. Schorel-Hlavka O.W.B.
To
Message body
Well perhaps when those who are meant to uphold the "law" actually follow it then people would not
question it so much now but when there are 2 sets of rules applied then they create the reason why people
choose to be free. After all why do you need permission - if you have passed a driving test then you have
shown competency so what difference does paying for a piece of plastic make to that. It is simply creating a
level of bureaucracy and job creation doing meaningless stuff that produces nothing useful. And speed
cameras rarely prevent deaths only cause accidents and are simply about revenue raising/control with alot of
police officers being trigger happy thugs. Sorry but that has been my experience they cause breaches of the
peace rather than keep them and always side against law abiding individuals if a shire or power company etc
is involved and on that note I speak from experience.
Like you I do not advocate violence or stupidity but the basic premise to do no harm to anyone and to help
my fellow man where possible.
We all know the courts are nothing but cash registers and most so called "laws" are so complex no one can
understand them and with some 65,000 (so I am told exist) it is not unreasonable to ask how anyone is
supposed to know them. I am an intelligent individual but I cannot understand most of the Acts that I have
read as they are complex and long winded. If we all follow the basic 10 commandments we would do well
in society as a whole as they cover everything needed to live peacefully and in harmony with each other as
God intended us to do - i.e Thou shalt not worship false idol and thou shalt have no other God but me so
courts attempt to usurp him as it he who will judge our actions when we pass from this life for he shall judge
both the quick and the dead and he who so ever worships only me will have everlasting life. Hence you are
not a sovereign citizen you are a Christian who is carrying out Christ's teachings.
You are a credit to those who seek balance and fairness in the judicial system. Magistrates and all public
servants should take a leaf out of your book.
p26
10-3-2016
Jacqui
Date: Wed, 9 Mar 2016 03:46:20 +0000

From: inspector_rikati@yahoo.com.au
To: rodewinsone@hotmail.com
CC: inspector_rikati@yahoo.com.au
Subject: Re: domestic terrorist
David,
.
Gerrit
.
.
otherwise stated.
END QUOTE
QUOTE
Re: domestic terrorist
People
John Barry Myers <rebdoc1@bigpond.net.au>

Today at 4:14 PM
Mr Gerrit H. Schorel-Hlavka O.W.B.
Dr Yaacov, John B. Myers
To
CC
Message body
Good noW! BH
Dera Gerrit, Of course not, they are the thugs, and their actions and language are proof. We ought to be able
to sue them, but in which court, which judge or Tribunal. Theyre all corrupt adnblame others who are not. A
p27
10-3-2016
total revolution of the justice system and System of Evaluated decisions is required in the next election,and to
expose the corruption in the Tribunals, Boards and courts.
Be well and joyful. Regards to Olga, Its Adar, the month in which we take our enemies to court, and there
are two of these month sin this , leap, year, so double opportunity, and sixty days of joy, BH,
Yours sincerely,
Yaacov, BH, noW!, Good noW!, 5776.
On 9 Mar 2016, at 2:46 pm, Mr Gerrit H. Schorel-Hlavka O.W.B. <inspector_rikati@yahoo.com.au> wrote:
David,
.
Gerrit
.
.
otherwise stated.
END QUOTE
I will now reproduce a copy of the content of the correspondence I alluded to above;
QUOTE 20160308-G. H. Schorel-Hlavka O.W.B. to ICACs Operation Ricco -etc
ICAC
8-3-2016
Level 7, 255 Elizabeth Street, Sydney NSW 2000, Australia

(GPO Box 500 Sydney, New South Wales, 2001, Australia)
Phone 02 8281 5999 (Australia) + 61 2 8281 5999 (overseas) 1800 463 909 (Toll Free), Facsimile 02 9264 5364
TTY 02 8281 5773 (teletypewriter for hearing and speech impaired only)
Email icac@icac.nsw.gov.au
Ref: 20160308-G. H. Schorel-Hlavka O.W.B. to ICACs Operation Ricco -etc
Sir/Madam,
As a CONSTITUTIONALIST I have my concerns as to the purported legal position
of municipal/shire councils and how it uses monies from so called rate payers.
I will below try to explain some basics. Albeit Operation Ricco is about Botany Bay
Council my issue is regarding any council but nevertheless has relevance to Operation Ricco.
http://www.news.com.au/finance/business/other-industries/i-felt-like-a-kid-at-willy-wonkas-factory-former-botanybay-council-manager-tells-icac/news-story/0e1c9883f7cf420eb669399b8ea2f832
QUOTE
p28
10-3-2016
ICACs Operation Ricco is investigating claims Mr Goodmans brother Gary, who was the councils chief
financial officer and a former lover of Ms Baccam, conspired with others to defraud at least $4.2 million of
ratepayers funds between 2009 and 2015.
Under questioning by his solicitor Martin Dunne, Mr Goodman admitted making a reference to the film Willy
Wonka and The Chocolate Factory.
And you felt like a boy who had been given the key to the factory? Mr Dunne asked.
Yes, Mr Goodman replied.
END QUOTE
Below I have quoted my submission (which I was advised has been accepted) and that I view
there ought to be a Royal Commission to deal with the issues I raised, this, as while you may be
investigating Botany Bay Council it will not alter the defective so called system as the real
problems are not addressed.
QUOTE 20160307-G. H. Schorel-Hlavka O.W.B. to The secretary Environment and Planning Committee-SUBMISSION-etc
This is why we need the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) a constitutional
council that advises the Government, the People, the Parliament and the Courts as to the true meaning and
application of the constitution and which can take to task before the courts any government or delegate before
the courts without citizens so to say risking their home security while the offender uses taxpayers monies.
END QUOTE 20160307-G. H. Schorel-Hlavka O.W.B. to The secretary Environment and Planning Committee-SUBMISSION-etc
Too often citizens desire to challenge councils but the problem being that council uses taxpayers
monies to defend against any challenge while the citizen may risk everything if the case is
railroaded, etc.
Therefore the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) a constitutional council that
advises the Government, the People, the Parliament and the Courts as to the true meaning and application of
the constitution and which can take to task before the courts any government or delegate before the courts
without citizens so to say risking their home security while the offender uses taxpayers monies.
Too often citizens desire to challenge councils but the problem being that council uses taxpayers
monies to defend against any challenge while the citizen may risk everything if the case is
railroaded, etc. Therefore the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!)
would be a well-informed organisation that would not be bullied by anyone as it would have the
background research to take on anyone as to unconstitutional conduct. It could stop in its tract
misuse and abuse of public monies, not just with councils but also with governments and its
departments. How the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) would
operate I have canvassed in details in my books published in the INSPECTOR-RIKATI
series on certain constitutional and other legal issues.
Below is a gradual set out so that most people can follow my reasoning to understand why
council rates are unconstitutional.
QUOTE 20160307-G. H. Schorel-Hlavka O.W.B. to The secretary Environment and Planning Committee-SUBMISSION-etc
The Secretary Environment and Planning Committee
7-3-2016
Parliament House, Spring Street

EAST MELBOURNE VIC 3002
epc@parliament.vic.gov.au
SUBMISSION
Ref; 20160307-G. H. Schorel-Hlavka O.W.B. to The secretary Environment and Planning Committee-SUBMISSION-etc
Sir/Madam,
As a COSTITUTIONALIST I find the usage of rate c aping disturbing because it
might be implied that municipal/shire council rates are constitutionally valid, which unlikely not
a single Member of Parliament is aware of it is in violation to s109 of the Commonwealth of
Australia Constitution Act 1900 (UK). Obviously, I do not expect anyone to nilly willy
accept this merely because I stated so above and hence let me explain matters, which will
perhaps give the reader a better understanding about the rates issue.
p29
10-3-2016
Our constitution has embedded certain legal principles, which is that there are different
Parliaments which can legislate. The British Parliament is which in fact passed the
Commonwealth of Australia Constitution Act 1900 (UK) as a constitution act which is
different than any ordinary act, this as it can only be amended with a Constitution Amendment
Act to which I understand no such ever was passed by the British Parliament since federation.
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment
IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (the ECHR) albeit not overriding constitutional law, is
complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is.
In brief the Court held that the European Union legislation would override British domestic law
but not British constitutional laws. As such any legislation by the European Union can be
complimentary to the legal provisions of the Commonwealth of Australia Constitution Act 1900
(UK) but cannot override these constitutional provisions.
Much has been decided by the High Court of Australia since federation, and at times overturned
by the court itself, much because it was ill conceived/ill considered, etc.
.
QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was
very briefly, and I regret to say, insufficiently argued and considered on the last day of the Sydney
sitting..... The arguments which now commend themselves to me as conclusive did not find entrance to
my mind. In my judgment that case was wrongly decided, and should be overruled.
END QUOTE
The Framers of the Constitution made clear:

Convention)
QUOTE Mr. DEAKIN (Victoria).The record of these debates may fairly be expected to be widely read, and the observations to which I
allude might otherwise lead to a certain amount of misconception.
END QUOTE
Just that many who were delegates in the convention then achieved positions in the High Court
of Australia and elsewhere and so banning the usage of the Hansard records was the perfect
vehicle to pervert the course of justice, and so pretend that constitutional provisions were
different then what was actually intended.
To just give an example was the 1967 con-job referendum of ss51 (xxvi) of the constitution to
amend this section purportedly to give Aboriginals equal voting rights and citizenship, etc.
Oh, boy what a deception this was!
.

QUOTE
Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal
natives shall not be counted.
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose
in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to
be debarred from voting.
Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal
population is too small to affect that in the least degree.
p30
10-3-2016
Mr. BARTON: It is only for the purpose of determining the quota.
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up
the people. I can point out one place where 100 or 200 of these aboriginals vote.
Mr. DEAKIN: Well, it will take 26,000 to affect one vote.
Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that
when we come to divide the expenses of the Federal Government per capita, if he leaves out these
aboriginals South Australia will have so much the less to pay, whilst if they are counted South
Australia will have so much the more to pay.
Clause, as read, agreed to.
END QUOTE
What the Framers of the Constitution were referring to was that those Aboriginals who had
attained colonial franchise and those who would further gain State franchise would all be
protected within s41 of the constitution.
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
41 Right of electors of States
No adult person who has or acquires a right to vote at elections for the more numerous House of the
Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth
from voting at elections for either House of the Parliament of the Commonwealth.
END QUOTE
As such the so called white only voting rights that purported to deprive Aboriginals since
about 1908 from voting were unconstitutional.
Hence, all that was needed was one lawyer stand up and challenge the constitutional validity of
the legislation. Regretfully this never eventuated and Aboriginals and other electors alike were
duped in voting in a con-job ss51(xxvi) referendum that was to make it worse for them. After all
ss51(xxvi) was specifically inserted in the constitution for the Commonwealth to legislate against
foreign inferior coloured races as to protect Australian job security. Clearly Aboriginals
were not foreign nor could be legislated against to protect Australian job security.
I will avoid quoting numerous sections of the Hansard to further underline this safe to say my
books published in the INSPECTOR-RIKATI series on certain constitutional and other legal
issues canvas this and other issues extensively. They are available in the Australian national
Library at Canberra.
..However, the judiciary has no power to amend or modernize the Constitution to give effect to what
Judges think is in the best public interest. The function of the judiciary, including the function of this
Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which
they expressed that intention. That necessarily means that decisions, taken almost a century ago by
people long dead, bind the people of Australia today even in cases where most people agree that those
decisions are out of touch with the present needs of Australian society.
":.. The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers"
Gaudron J (Wakim, HCA27\99)
"... But in the interpretation of the Constitution the connotation or connotations of its words should
remain constant. We are not to give words a meaning different from any meaning which they could have
p31
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borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.
"
Windeyer J (Ex parte Professional Engineers' Association)
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27
QUOTE
Constitutional interpretation
1.
The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional
interpretation is not a search for the mental states of those who made, or for that matter approved or
enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in
the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at
Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what - on the best evidence available - the
authors of the text in question intended to say. That is an exercise in what I have called
constructive interpretation[54]. It does not mean peeking inside the skulls of people dead
for centuries. It means trying to make the best sense we can of an historical event someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
END QUOTE
We also should consider the following:

.

QUOTE
Mr. CARRUTHERS:
END QUOTE
.

QUOTE
exercise a liberal discretion in striking out words which they do not understand, and that they will put
in words which can be understood by persons commonly acquainted with the English language.
END QUOTE
END QUOTE
Therefore the constitution and so its interpretation must be in the words of the Framers of the
Constitution and not be perverted to serve some alternative purpose that may suit whomever in a
contemporary manner.
We also have to consider:
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
p32
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securing absolute freedom to a people than that, unless you make a different kind of Executive than
that which we contemplate, and then overload your Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference.
Under this Constitution he has his voice not only in the, daily government of the country, but in the
daily determination of the question of whom is the Government to consist. There is the guarantee of
freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
one has sought to strengthen. How we or our work can be accused of not providing for the popular
liberty is something which I hope the critics will now venture to explain, and I think I have made their
work difficult for them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
determine questions arising under this Constitution, and with all other questions which should be dealt
with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
well.
END QUOTE
QUOTE Sir EDWARD BRADDON.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
.

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
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One would therefore find that decisions such as Sue v Hill, WorkChoices, Sykes v Cleary,
Mabo, etc, were well outside the judicial powers of the High Court of Australia in regard of
major/critical parts of those judgments.
But rather then get stuck further in these and other issues let us return to the rate issue.
.
https://jade.barnet.com.au/Jade.html#!article=61502
QUOTE H. L. DEMDEN v F. PEDDER High Court of Australia
The Commonwealth and the States are, with respect to the matters which under the Constitution are within
the ambit of their respective legislative or executive authority, sovereign States, subject only to the
restrictions imposed by the Imperial connection and the provisions of the Constitution, either expressed or
implied. Where, therefore, the Constitution makes a grant of legislative or executive power to the
Commonwealth, the Commonwealth is entitled to exercise that power in absolute freedom, and without any
interference or control whatever except that prescribed by the Constitution itself.
END QUOTE
Again; , either expressed or implied.

As such we must consider the legal principles embedded in the constitution and even in Sydney
Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 (26 April 1904) the
court referred to what was intended by the convention to apply to constitutional provisions. As
such, all and any legislative powers and other executive powers must be considered as to what
the Framers of the Constitution intended.
Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 (26 April 1904)
QUOTE
But to get at the real meaning we must go beyond that, we must examine the context, consider the
Constitution as a whole, and its underlying principles and any circumstances which may throw light upon the
object which the Convention had in view, when they embodied it in the Constitution. This is a sound rule in
the interpretation of Statutes, and is well explained by Lord Blackburn in the River Wear Commissioners v.
Adamson , 2 App. Cas., at p. 763, as follows:"In all cases the object is to see what is the intention
expressed by the words used. But, from the imperfection of language, it is impossible to know what that
intention is without inquiring further and seeing what the circumstances were with reference to which the
words were used, and what was the object, appearing from those circumstances, which the person using them
had in view; for the meaning of words varies according to the circumstances with respect to which they are
used." Before examining the words of the section, it will be useful to advert to the circumstances which the
Convention had in view in framing this section, and their purpose and object in relation to those
circumstances.
END QUOTE
The High Court of Australia in Sydney Municipal Council v Commonwealth [1904] HCA 50; (1904) 1 CLR 208
(26 April 1904) held that municipal/shire councils charging rates were in fact exercising delegated State land
taxation powers .
The Tax Institute's 27th National Convention
DG Hill Memorial Lecture
Tax and the Constitution
Chief Justice Robert French AC
14 March 2012, Canberra
QUOTE
The Court distinguished between impermissibly tacking extraneous provisions onto a law imposing taxation
and inserting in a taxing statute provisions for the assessment, collection and recovery of that tax. 1 A law
containing provisions of that nature was still 'a law imposing taxation.' 2
(2004) 220 CLR 388, 419 [69].

p34 10-3-2016 Hearing date (22-2-2016?) Ballarat venue
In Permanent Trustee the Court referred not only to British constitutional history but also to the Record of
the Debates of the Constitutional Conventions of the 1890s, which drafted and settled the text of the
Constitution.
It was not until 1988 that the High Court permitted resort to the Convention Debates of the 1890s in order
to understand the meaning of words in the Constitution. The restriction dates back to a decision of the Court
in 1904 in Municipal Council of Sydney v Commonwealth.3 That was another tax case. It was about the
rateability of land previously owned by the Government of New South Wales which had become vested in
the Commonwealth. Section 114 of the Constitution applies not only to prohibit the imposition of taxes by
the Commonwealth on State property, but also to prohibit the imposition of taxes by the States on
Commonwealth property. The Commonwealth claimed its protection. The Attorney-General of New South
Wales wanted to refer in argument before the High Court to a statement of opinion which had been expressed
by a delegate at the Convention Debates about the operation of s 114. The Attorney himself had been a
delegate. The members of the Court, Griffith CJ, Barton and O'Connor JJ, all of whom had also been
delegates, would not allow him to do so. Justice O'Connor treated the terms of the Constitution like those of
a written contract, and said:
We are only concerned here with what was agreed to, not with what was said by the parties in
the course of coming to an agreement.4
Over the years this court-imposed restriction led to a rather artificial approach to interpretation of the
Constitution. It also led to some absurdities and amusing moments. In the course of argument in the
Concrete Pipes Case,5 which concerned the scope of the corporations power of the Commonwealth conferred
by s 51(xx), counsel Mr Lyons, responding to a question from the Bench, acknowledged that he was not
permitted to refer to the Convention Debates but went on to say what they showed. Mr Ellicott who was on
the other side, described Mr Lyons' reference as 'not permissible' and added:
But all I want to say is that if they were looked at, one would find the contrary.
END QUOTE
The High Court of Australia in Sydney Municipal Council v Commonwealth [1904] HCA 50;
(1904) 1 CLR 208 (26 April 1904) held that Sydney City Council within s114 of the
constitution was exercising the delegated powers of the State land taxation powers.
While we often hear judges claiming that the judiciary is the 3rd part of the government, the truth
is that that might have been so with a colonial sovereign Parliament but since federation all
colonial sovereign: Parliaments became State constitutional Parliaments and the judiciary
by this became 3rd part of the constitution.
This also because if one check the State letters patents issued at the time of federation they refer
to an impartial administration of justice!
QUOTE Sir HENRY PARKES:
(2.) A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal
for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final.
(3.) An executive, consisting of a governor-general and such persons as may from time to time be
appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend
2
(2004) 220 CLR 388, 419 [70].

(1904) 1 CLR 208.
4
(1904) 1 CLR 208, 213.
5
Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
p35 10-3-2016 Hearing date (22-2-2016?) Ballarat venue
3
upon their possessing the confidence of the house of representatives, expressed by the support of the
majority.
END QUOTE
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
END QUOTE
.
What appears to be grossly overlooked is that s123 of the constitution is the equivalent for the
states as what is s128 for the Commonwealth. As such, where the States are created within s1906
of the constitution subject to this constitution then this applies to all legal principles
embedded in the constitution. One is that there is a division between the legislative powers of the
Commonwealth and those of the States as to avoid both to legislate upon the same subject
matters. S109 does provide that where the Commonwealth legislate within its legislative powers
or incidental to it then it excludes the states from any further legislative powers.
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
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?
Mr. BARTON.-Not after this power of legislation comes into force. 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
QUOTE
My only desire is to give power to the Federal Parliament to achieve a scheme for old-age
pensions if it be practicable, and if the people require it. No power would be taken away
from the states. The sub-section would not interfere with the right of any state to act in
the meantime until the Federal Parliament took the matter in hand.
END QUOTE
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Numerous other such statements can be quoted but again I view those already quoted should be
sufficient to get the message, that once the Commonwealth commences to legislate then this is
the end of the legislative powers of the States forever. The constitution doesnt provide any
mechanism to return legislative powers from the Commonwealth to the states. Ss51(xxxvii) is as
French J (Now French CJ) also made clear a mechanism for the Commonwealth to accept
referral of legislative powers and not for the States being authorised to do so. This is because of
the separation of powers the States cannot refer legislative powers and by this the associate
judicial powers to the Commonwealth unless within s123 of the constitution a State referendum
approves such amendment to the State constitution to reduce both legislative as well as judicial
powers.
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 anyand 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
.
No constitutional Parliament can deprive a subsequent Parliament of its legislative powers and
as such unless the State electors approved to refer legislative and associated judicial powers to
the Commonwealth any purported reference of legislative powers is null and void.
.

QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but
the general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the
question of ultra vires arising after a law has been passed.
[start page 2004]
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.
END QUOTE
QUOTE
Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject he
will see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court
the court is bound to give an interpretation according to the strict hyper-refinements of the law. It may
be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which
I do not care much about. The court may say-"It is a good law, but as it technically infringes on the
Constitution we will have to wipe it out." As I have said, the proposal I support retains some remnant of
parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each other's laws.
END QUOTE
The Commonwealth on 11 November 1910 commenced the Land Tax Office (the forerunner of
the ATO) and as such by s109 of the constitution all State land taxation became null and void.
This means that also as from 11 November 1910 all delegated land taxation powers to
municipal/shire councils became null and void. After all councils no longer held any
delegated land taxation powers. While the commonwealth in 1952 abolished Land Taxation
but with a proviso that no further land taxation could be applied, in 1953 it then abolished this
p37
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1952 act. But then subsequently abolished the 1953 act which then effectively re-instated the
1952 provisions that no further land taxes could be applied.
In my communication the then then Premier Kirstine Kaneally government of NSW it then was
claimed that the State had obtained again land taxation powers, just that it failed to show within
which constitutional provisions, as I know of none to exist.
Even if purportedly the Commonwealth had provided somehow legislation that allowed the states
to raise land taxation on its behalf then all land taxation (including rates) would have to be
uniform throughout the Commonwealth of Australia, and this clearly never eventuated.
.

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
.

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
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be necessary for the
Federal Parliament to make them commence at a certain amount at once. We have pretty heavy duties in
Victoria, and if the uniform tariff largely reduces them at once it may do serious injury to the colony. The
Federal Parliament will have power to fix the uniform tariff, and if any reductions made are on a
sliding scale great injury will be avoided.
END QUOTE
.

QUOTE Mr. BARTON.But it is a fair corollary to the provision for dealing with the revenue for the first five years after the
imposition of uniform duties of customs, and further reflection has led me to the conclusion that, on the
whole, it will be a useful and beneficial provision.
END QUOTE
QUOTE Mr. BARTON.On the other hand, the power of the Commonwealth to impose duties of customs and of excise such as it may
determine, which insures that these duties of customs and excise would represent something like the average
opinion of the Commonwealth-that power, and the provision that bounties are to be uniform throughout
the Commonwealth, might, I am willing to concede, be found to work with some hardship upon the states
for some years, unless their own rights to give bounties were to some extent preserved.
END QUOTE
QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties shall be uniform
throughout the commonwealth, and that no tax or duty shall be imposed on any goods exported from one
state to another;
END QUOTE
QUOTE The CHAIRMAN.Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and that no tax or duty
shall be imposed on any goods passing from one state to another.
END QUOTE
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10-3-2016
QUOTE Mr. BARTON (New South Wales).That all the words after the first word "taxation" in the second sub-section be omitted, with a view to
inserting the following words-"but not so as to discriminate between states or parts of states, or between
persons or things passing from one state to another."
The amendment was agreed to.
The clause, as amended, was agreed to.
END QUOTE
Then, on 16-3-1898 is appears to have been amended, without further discussion but approved
off by voting, from;
Taxation; but not so as to discriminate between states or parts of states, or between persons
or things passing from one state to another.
To
Taxation; but not so as to discriminate between states or parts of states
It was claimed that in substance there was no change. Hence, both versions ought to be taken as
having the same meaning.
This is a critical issue as the wording;
or between persons or things from one state or another
then clearly entails that there can be no difference in taxation between persons, and as such
neither one person having a tax free income, partly or wholly while another having the same
income is required to pay more tax.
QUOTE
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95 in its present form.
What I am saying however, is that it should be made certain that in the same way as you provide that the
Tariff or any taxation imposed shall be uniform throughout the Commonwealth, so it should be
provided with reference to trade and commerce that it shall be uniform and equal, so that the
Commonwealth shall not give preference to any state or part of a state. Inasmuch as we provide that all
taxation, whether it be customs or excise duties, or direct taxation, must be uniform, and inasmuch as
we follow the United States Constitution in that particular-in the very same way I argue that we should
protect the trade and commerce sub-section by not doing anything which will limit its effect. That is the real
logical position.
END QUOTE
The following is what later became s92 of the constitution;

QUOTE Mr. BARTON (New South Wales).That all the words after the word "taxation" where it is first used be struck out, and that the following words
be substituted:-"but not so as to discriminate between states or parts of states, or between goods passing from
one state to another."
END QUOTE
Hence, any claims that free intercourse somehow includes the right of a lawyer of one state to
practice in another state has got absolutely nothing to do with s92 as this was never as such
intended by the Framers of the Constitution.
Again:
.

QUOTE
Mr. CARRUTHERS:
END QUOTE
.
p39
10-3-2016
QUOTE
exercise a liberal discretion in striking out words which they do not understand, and that they will put
in words which can be understood by persons commonly acquainted with the English language.
END QUOTE
END QUOTE
Therefore one must look at the plain language of the constitution and not fanciful lawyers
interpretations.
.
Another issue is that ss51 is nothing more but a section that provides legislative powers for the
Commonwealth. Section 52 provides that it is exclusive legislative powers, whereas s51 is that
the States can continue to legislate up till the time the Commonwealth commences to do so and
then no new laws can be enacted. The constitution specifically provides in s106 for the
creation of the States subject to this constitution as they are the Local Government while the
Commonwealth is the Central Government
.

QUOTE
Mr. MCMILLAN: There is another question which, to a certain extent, I think is connected with my
contention in favour of a strong central government. There is in the centre of this great continent, which you
may call Central Australia, a large area of land that adjoins three or four colonies. From its peculiar position,
from the smallness of its rainfall, it will have to be dealt with in the future separately, from the other portions
of Australia. It is not likely with an enterprising people such as we have in these colonies, with every obstacle
going down before the race to which we belong that we shall allow the and wastes of the centre of this
continent to remain as they are for many years to come. There is no doubt that a system of conservation of
water and irrigation must be introduced into that great tract, and if that is done at all it must be done by a
united Australia. Consequently there should be some machinery in the central government by which the
country in the centre of this continent maybe dealt with differently from other parts of the continent.
END QUOTE
QUOTE
Mr. CARRUTHERS:
Not to have legislation merely to protect the people lower down the river Murray; but it is within the
cognisance of this Committee that the hon. member has proposed that the Federal Government should
undertake the work of cutting a deep water channel at the Murray mouth, so that large ships may come in and
out of the Murray with freedom, and that if the Federal Parliament does not do this, authority may be given to
the local Government to do it He knows that if the channel is cut, the water will flow away much more
freely than before, and so be of no benefit to the settlers on the river, but all this is to be done for the benefit
of the colony of South Australia only, so that traffic may flow through its territory.
END QUOTE
QUOTE
Dr. COCKBURN:
We know the tendency is always towards the central authority, that the central authority constitutes
a sort of vortex to which power gradually attaches itself. Therefore, all the buttresses and all the ties
should be the other way, to assist those who uphold the rights of the states from being drawn into this
central authority, and from having their powers finally destroyed. The whole history of federation in
America, whether it be the United States or Canada, has proved this: that the tendency is towards
centralisation, and away from that local government which is inseparable from freedom. I have
heard it said that those who advocate state rights are taking a conservative view of the question. I
would like to know since what time have centralisation and democracy been associated? Those who
advocate state rights advocate local government, under whose shadow alone democracy can exist.
There is nothing in common between centralisation and democracy, and if you handicap a house,
which is erected, to preserve state rights, what have you to prevent the establishment, in this huge
island of Australia, of a strong central government which is local only to one portion of the continent,
and as far as the rest of the continent is concerned is distant and central? I maintain that a central
p40
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government, just inasmuch as it never can be associated with the power of the people, is inseparably
associated with tyranny, arising either from ignorance or design-frequently from ignorance-because
a central and distant government can never properly appreciate the local conditions for which it is to
legislate. I [start page 708] am surprised that any one in this Convention should for one moment say
that to strengthen in every way the rights of the states, as such-to protect in every way the local
institutions-is the conservative mission. The whole history of federation has proved it is otherwise. It
was in the name of state rights, when the question of the Constitution of America was being
discussed, that the most fervent appeals to liberty that ever stirred the human breast were made, and
all those opposed to state rights were the conservatives, the monarchists of that time. The strongest
upholders of state rights from time to time have been those in favour of government by the people,
and it is only when you have state rights properly guarded, and safeguard local government, that you
can have government by the people. Government at a central and distant part is never government
by the people, and may be just as crushing a tyranny under republican or commonwealth forms as
under the most absolute monarchy. I do hope that hon. members will not allow themselves to be
hoodwinked in this matter. It seems that the crushing majority in favour of the state rights that are
essential to federation, which we had at the commencement of this discussion, has dwindled away. I
maintain that unless the state rights are in every way maintained-unless buttresses are placed to
enable them to stand up against the constant drawing towards centralisation-no federation can ever
take root in Australia. It will not be a federation at all. It will be from the very start a centralisation,
a unification, which, instead of being a guardian of the liberty of the people, will be its most distinct
tyrant, and eventually will overcome it.
END QUOTE
QUOTE
Dr. COCKBURN: Local freedom and government by the people are inseparable.
END QUOTE
QUOTE
Mr. BARTON.-If you refer to clause 105, you will see that it can only be done with the consent of the
state.
Dr. COCKBURN.-On the other hand, Sydney might object to have her harbour and 10 miles roundabout
taken away by the Federal Parliament, and its administration withdrawn from the local Government.
Mr. BARTON.-Clause 105 is quite clear on that point.
Dr. COCKBURN.-I would like to be sure of that. Would there not be some right of pre-eminent powers in
the Federal Parliament, unless it was restricted by this Act, to take any land anywhere it chose?
Mr. ISAACS.-Yes; so there ought to be.
[start page 258]
END QUOTE
It must be clear that the constitutional meaning of local government refers to State
government. As such any State legislation to purportedly create some local Government as
some other level of government is without constitutional authority, in fact in violation of s109 of
the constitution also. This as one cannot have some council making a by-law that would be in
conflict of s109 but somehow deemed to be outside s109 application because the council; is
not the State. As the Framers of the Constitution made clear municipal councils were
incorporated bodies. Incorporated bodies cannot operate as a form of government. In fact the
very separation of powers that constitutionally is required for both Federal and States entities do
not exist in municipal/shire councils.
Also, both Federal and State must operate that all taxation must be placed into Consolidated
Revenue funds and can only be drawn by appropriation bills if passed by the respective
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Parliament. Clearly municipal/shire councils have no such system in place and if anything the
current NSW ICAC Operation Ricco investigation into the millions of dollars (Botany Bay
Council) allegedly fraudulently taken from funds ought to be a clear warning that this kind of
fraud can be perpetrated unchecked in numerous councils. In fact it is a way to syphon of billions
of dollars that should be paid into Consolidated Revenue Funds without any Appropriation Bills
and so without any check and balances and allow corruption to flourish.
.
In my view, council rates are unconstitutional for the above set out.
I am with Buloke Shire Council (Victoria) charges rates but then also charged $360 a year for
garbage collection regardless this is not used. As such rates isnt for service provided as
otherwise garbage collection should be part of the rates.
For sure States have legislated for Local Government referring to municipal/shire councils
but as indicated above it is and remains to be ULTRA VIRES because it is a purported level of
government , legislator, etc, that is not permitted by the constitution. In fact any purported State
constitution that was amended since federation without the approval of the relevant State electors
by way of State referendum is ULTRA VIRES. As such any State legislating for a purported
local government exceeded its legislative powers, as the constitution specifically provides only
for Federal and State legislature and the Territories are for that deemed to be quasi States.
.

QUOTE Mr. OCONNOR (New South Wales).Of course, when I speak of a state, I include also any territory occupying the position of quasi-state,
which, of course, stands in exactly the same position.
END QUOTE
It is indeed totally absurd that somehow a municipal/shire council could restrict its citizens by
by-laws that are not applicable to citizens in other councils and so rob the citizens of equality.
Obviously, if rates are unconstitutional since 11 November 1910 then as the Framers of the
Constitution made clear that any rates wrongly collected have to be refunded to the tax payer.
The pursuance of municipal/shire councils to be recognised in the constitution, something I was
one of many to successfully oppose, is that it would have to have separation of powers which
clearly doesnt exist with such councils.
Despite what the High Court of Australia may have stated otherwise, S96 is not a way for
everything but was inserted at the Premiers conference only as to enable the Commonwealth to
assist a State that was in dire financial strife to lend it monies, and within the confines of
constitutional requirements. It would be absurd for s96 to be allowed to be used to for example
circumvent s116.
.

QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.
END QUOTE
Therefore I view that municipal/shire councils can only charge a citizen upon presentation of a
bill the real; cost of services rendered to each particular citizens. I see absolutely no justification
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for a council to charge citizens for major highway wear and tear merely because the state fails to
cover it all, where the citizen may never use those particular highways. Too much has been
shafted to municipal/shire councils because the State Ministers by this could unload plenty at
cost of citizens in certain areas without providing sufficient finances for particular councils.
Councillors being it for grand standing or otherwise accept more power even if this cause the
financial suffering of citizens in their area. That should stop!
Also as Buloke Shire Council proved to do is to use the Country Fire Authority Act 1958 for
ulterior purposes and blatantly disregard the safety of citizens and fire fighters but use this in a
fraudulent manner to enrich itself on fines allegedly to enforce State legislation.
This is why we need the OFFICE-OF-THE-GUARDIAN (Dont forget the hyphens!) a
constitutional council that advises the Government, the People, the Parliament and the Courts as
to the true meaning and application of the constitution and which can take to task before the
courts any government or delegate before the courts without citizens so to say risking their home
security while the offender uses taxpayers monies.
The answer is therefore that municipal/shire councils can only charge a citizen within the
council area for actual services provided and further seek the State Government to provide a
perhaps pro-rata payment to provide other non-chargeable services, which then by Appropriation
bills are taken from the Consolidated Revenue Funds.
It means no more nonsense of councillors travelling overseas at cost of those residing within the
shire/municipality, as citizens should not have to pay for that and unlikely would the State
government provide funding for that.
I stress again that the above set out is very limited but for the sake to keep it short I have
therefore restrained myself as not to include reams of paperwork on quotations in addition to
what already was referred to. Still, (again) those interested to read more extensive and avoiding
to purchase any of my books in the INSPECTOR-RIKATI series on certain constitutional and
other legal issues can check out my blog at www.scribd.com/inspectorrikati or just go along to
the Australian National Library at Canberra.
This document is not intended and neither must be perceived to refer to all details/issues.

Our name is our motto!
(
)
Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
The above is merely so to say the tip of the iceberg, but anyone with a genuine interest to stop
the rot (so the fraud) should support a Royal Commission as we are in a need to clamp it all
down, and not that one fraudulent case may be investigated while numerous others remain
undetected. We need to draw it all back upon what is constitutionally permissible and monies are
properly accounted for, as enshrined in the constitution and avoid the kind of vortex Willy
Wonka and The Chocolate Factory that draws in many, as the attraction is too great to resist.
Prevention is therefore better than the follow up to deal with fraud, etc.
This document is not intended and neither must be perceived to refer to all details/issues.
Awaiting your response,
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

Our name is our motto!)
(
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END QUOTE 20160308-G. H. Schorel-Hlavka O.W.B. to ICACs Operation Ricco -etc
If it is good enough for the judiciary to get together or otherwise conspire how to deal with selfrepresented litigants/so called sovereign citizens deemed domestic terrorist then it better
consider factual reality that it is often a source of problems. Here we have judges who seek to
organise themselves without having themselves even the basic understanding as to their judicial
powers on a constitutional basis and then attack an unrepresented litigant based on their ill
conceive/ill-considered views.What we have is that judicial officers from their point of view, no
matter how misconceived this may be to some or a large extent are seeking to deal with matters
without involving people who may not be judicial officers but may have a far better
understanding how to address matters appropriately. Many a person becomes disillusioned, in
particular when they are feeling losing their case but view they ought to be on the winning side.
Also misunderstandings/misconceptions can cause added frustration and can cause them to lose a
case where they could have succeeded. Combined with lawyers making false/misleading
statements at the bar table and preparing deceptive Affidavits as to pervert the course of justice
with judicial officers far too often too impatient to appropriately deal with these issues result that
people then seek to resolve disputes in their own way.
The courts are too complex in rules and regulations that even legal practitioners such as those
lawyers of Buloke Shire Council are getting lost in it and forget/overlook basic legal
requirements. Yet, you seldom ever hear the court to raise these issues with lawyers because they
are too much concentrating upon self-represented litigants/accused/defendants.
While pre-hearings (including pre-appeal hearings) are supposed to attend to the parties being
ready to proceed, and what, if any, issues are there to be resolved for any party not being able to
proceed, it appeared to me that His Honour Mullaly J simply lacked the ability to even conduct a
proper pre-appeal hearing. His Honour Mullaly J didnt even bother to deal with what documents
were before the courts so to say following a check list (of things to be done) and mark off items
as they continue with the hearing.
.
Let me be honest about it, that His Honour Guest J once checked me on this during a hearing
when he as I recall it stated; Mr Schorel-Hlavka you are not addressing the Full Court, in this
His Honour was aware I would make statements so that in case the matter where to go on appeal
I would have laid the grounds for an appeal and specifically had the transcript including my
statements to let the Full Court become aware of certain issues. However ordinary persons
wouldnt be aware of this and so may not make certain statements and on appeal this can be fatal.
A judge may respond with Yes when the unrepresented litigant made a statement, and to the
unrepresented litigant the judge appeared to agree, but a Full Court may argue that the judge
merely acknowledged the statement and didnt intent to convey to agree. Yet, when as litigant in
person states Yes upon a statement of a judge not to indicate to agree but to indicate having
heard what the judge stated, then the full court held on appeal that the saying of Yes was to be
held that the appellant therefore had agree with the trail judge and the appeal therefore is baseless
and dismissed. The same where legislation provides for A . or . B. or C. a Full Court
held that or did mean and and not or in the alternative, and as such dismissed the appeal.
Clearly plain English reading would not come to that or could mean and but judges tend to
fabricate their own version of interpretation to railroad a valid appeal and as such cause havoc to
a party who is as such railroaded.
Then we have where a party such as in a custody case can present a solid case only for the judge
to make some crystal ball prediction that he doesnt think the father could in the long term
manage to be a custodian faster because of his excellent work record. Even the opponent lawyer
(some years later) gave the understanding the judges was totally unfair to say this, in particular
where shortly after this judgment the father gained custody of another child and cared for her as a
single parent.
p44
10-3-2016
It is this kind of judicial or better to state unjudicial conduct that causes many problems but
generally parties who become their victims have little recourse to this. Appeals may be far too
expensive to pursue and the risk of a railroading of the appeal is not an if but a likely reality.
.
In my submission what is needed are lawyers who albeit working with the courts are there to
give certain advise to unrepresented parties , so that a person unknown to how litigation is can
attend to such a lawyer and given time by the lawyer to explain matters, without the lawyer
becoming involved in representing this person. A lawyer would in my view save bundles of time
for the court, because then unrepresented litigants/defendants/accused may get some proper
information as to what to do and what to expect. For many the attendance to a court hearing is
worse than doing any exam and yet the courts expect them to conduct themselves in a competent
manner following all legal technicalities while the very legal practitioners getting paid to
represent their parties are excused in general no matter the amount of errors/failures they make.
http://www.austlii.edu.au/au/cases/cth/HCA/1986/11.html
BROWN v. THE QUEEN [1986] HCA 11; (1986) 160 CLR 171 No. F.C. 86/010 (20 March 1986)
QUOTE
3. The question for decision is whether s.80 contains an imperative and indispensable requirement that the
trial must be by jury whenever the accused is charged on indictment with an offence against a law of the
Commonwealth, or whether the section is intended to secure for the benefit and protection of any person so
charged a right or privilege which the accused may waive if the law governing the conduct of the trial permits
it. The argument that the requirement is indispensable and cannot be waived is an obvious enough one. The
words of s.80 appear to be both clear and mandatory; read literally, they appear to mean that "if there be
an indictment, there must be a jury", as Higgins J. said in R. v. Archdall and Roskruge; Ex parte Carrigan
and Brown (1928) 41 CLR 128, at p 139, and they do not expressly admit any exception to that rule.
4. It then becomes necessary to consider the purpose which the framers of the Constitution had, or must be
supposed to have had, in including the provisions of s.80 in the Constitution. The requirement that there
should be a trial by jury was not merely arbitrary or pointless. It must be inferred that the purpose of the
section was to protect the accused - in other words, to provide the accused with a "safeguard against the
corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge": Duncan v.
Louisiana (1968) 391 US 145, at p 156 (20 L.Ed.2d 491, at p 500). Those who advocate the retention of the
jury system almost invariably place in the forefront of their argument the proposition (sometimes rhetorically
expressed but not without some truth) that the jury is a bulwark of liberty, a protection against tyranny and
arbitrary oppression, and an important means of securing a fair and impartial trial.
END QUOTE
This then brings us to the next point why is the matter not placed before a jury? After all if the
indictment by summons is deemed appropriate then a jury should deal with the matter. I have
published in the past that the constitution has embedded the legal principle of a jury and the
States cannot undermine this right by any form of legislation.
I submit that if I am to be dealt with regarding an alleged criminal offence then I desire/elect to
have it heard before a jury, as I for one cannot trust judges, as I have too much experiences how
they often by hook or by crook railroad cases, including pre-determining orders days before the
hearing has been completed. Not to overlook, without making any admissions implied or
otherwise, a jury can apply nullification. HANSARD 31-1-1898 Constitution Convention Debates
Mr. WISE (New South Wales).- QUOTE that it would become the duty of every citizen to
exercise his practical power of nullification END QUOTE
This ADDRESS TO THE COURT supplement 4 should be considered together with the
ADDRESS TO THE COURT (incorrectly referring to a 22-2-2006 hearing which was indicated
for 22-2-2016) ADDRESS TO THE COURT supplement 1 and ADDRESS TO THE
COURT supplement 2 and ADDRESS TO THE COURT supplement 3.
This written submission is not intended and neither must be perceived to address all relevant
issues and oral supplement may be made. After all it is unknown to me what, if any, other matter
may arise before the hearing is held.
Appellant
p45
10-3-2016
G. H. Schorel-Hlavka O.W.B.

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Page 1 AP 2502 ADDRESS TO THE COURT Suppl 4, Hearing date 22-2-2016 (or alternative date if allocated)

ADDRESS TO THE COURT (Written submissions) Supplement 4

Elliott Stafford and Associated

Melinda Hampshire Melinda.Hampshire@courts.vic.gov.au , registry.ballarat@countycourt.vic.gov.au

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

David Rode <rodewinsone@hotmail.com>

David Rode <rodewinsone@hotmail.com>

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Lets consider what sovereign/sovereignty constitutionally that is stands for.

Therefore to assume that a person claiming to be a sovereign citizens is then a domestic

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

If the information/legislation is too burdensome for an unlettered person to

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

HANSARD 17-3-1898 Constitution Convention Debates

it requires that "the whole of our law, written or unwritten, is

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Failing to request leave to serve out of time full brief.

What was the matter before the Court?

Hansard 3-3-1898 Constitution Convention Debates

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

HANSARD 1-4-1891 Constitution Convention Debates

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

Hearing date (22-2-2016?) Ballarat venue

Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502