131229-mr g. h. schorel-hlavka o.w.b. to victorian police obl 1106575301 legal issues etc

8/13/2019 131229-Mr G. H. Schorel-Hlavka O.W.B. to Victorian Police OBL 1106575301 Legal Issues Etc

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Page 1 29-12-2013 Re: COMPLAINT - etc INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVDA 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0

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WI THOUT PREJUDICEVictorian Police Chief Commissioner of Police 29-12-2013Victoria Police Centre, G.P.O Box 913Melbourne, VIC, 3001, AUSTRALIA 5C/o [email protected] OBL 1106575301

Cc: D. Napthine MP Premier of Victoria [email protected] Brendan Facey Director, Infringement Management & Enforcement Services (Sheriff)

[email protected] 10Ian Grey Chief Magistrate , Magistrates Court of Victoria233 William Street Melbourne Vic 3000, C/o [email protected]

Dr Richard Brittain LLB, Executive Officer, Legal Metrology, National Measurement Institute, Department ofInnovation, Industry, Science and Research Email: [email protected] 15M Hoyle , Quality and client support Coordinator , Civic Compliance Victoria GPO Box 1916, Melbourne VIC 3001 [email protected]

M r Robert Cl ark MP Attorney-General [email protected] 20

Mr G. H. Schorel-Hlavka , MAY JUSTICE ALWAYS PREVAIL ®Email: [email protected]

COMPLAINT Ref: Measurements-etc Sir,25

As you may recall from my 23-2-2011 correspondence I objected to the alleged speedingclaim by the Victorian Police. It should be stated that so far after nearly 3 years the VictorianPolice still has not provided me with details as to the instrument it claimed was used to measurethe alleged speed. No details if the camera, if that was used, was fitted onto a motor vehicle orother vehicle or was mounted on a pole, etc. No information was provided to me, as to if the30instrument was certified to be in accordance with the legal requirements of the NationalMeasurement Act 1960 and so which person purportedly provided such certification/verificationand to which applicable legislative provision.

In Agar v Dolheguy & Anor [2010] VSC 506 (11 November 2010) decision the Supreme Courtof Victoria held that the State parliament of Victoria validly could legislate as to speed detection35equipment where the Commonwealth had not done so. Despite what Dr Richard Brittain LLBExecutive Officer, Legal Metrology National Measurement Institute Department of Innovation,Industry, Science and Research stated in his email to me dated 18 November 2013, I do not agreewith certain claims he makes. For your information I have below reproduced his email to me as Iview this is appropriate to do so. Indeed, I have certain serious concerns as to some of the content40of the National M easur ement Act 1960 (as amended) but will not at this time go into thosedetails as I intend to follow through with the Federal Government about certain issues. Save tosay that as a CONSTITUTIONALIST I hold the view that no matter what the Commonwealthmay or may not permit a State to do it cannot do so in violation of the constitution. Despite Agarv Dolheguy & Anor [2010] VSC 506 (11 November 2010) I maintain that the Framers of the45Constitution were very clear about matters and as an example they stated:

Hansard 27-1-1898 Constitution Convention Debates

mailto:[email protected]


















http://mail.schorel-hlavka.com/edgedesk/cgi-bin/compose.exe?id=018d0b78196cdf8fe2bb44167860ae6efc21&new=&xsl=compose.xsl&[email protected]


















QUOTEMr. 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

5Hansard 27-1-1898 Constitution Convention DebatesQUOTE

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?10

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 beall the more forced on the Commonwealth.

END QUOTE15

Hansard 28-1-1898 Constitution Convention DebatesQUOTE

Mr. GLYNN (South Australia).- I desire to call the attention of the leader of the Convention to anapparent vagueness in the word " exclusive ," to which reference has not yet been made. The word"exclusive," no matter at what time the power arises, whether on the coming into being of the20Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe doesmean, that the power of the state to legislate ceases. On the question of whether the exclusive powerunder this provision comes into being with the establishment of the Commonwealth, I would call theattention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusivepower arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties25being vested in the Federal Parliament, but the second paragraph says-

But this exclusive power shall not come into force until uniform duties of customs have been imposedby the Parliament.

It would appear that without that limitation the exclusive power would come into force at once, and the position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255]30stands the state could no longer legislate with regard to Chinese.

Mr. BARTON .-If the exclusive power is given without any restriction, I think it would arise immediatelyon the establishment of the Commonwealth.

END QUOTE35

Hansard 28-1-1898 Constitution Convention DebatesQUOTE

Mr. GLYNN .-There seems to be some doubt as to whether the exclusive power arises upon theestablishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to

be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be40 postponed until legislation takes place. But may you not then have a concurrent power, and may not thecompetence of the local Legislature to legislate in the matter be continued as long as the legislation is not incontradiction of federal legislation?

Mr. DEAKIN .-That is the point.

Mr. GLYNN .-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the45exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may onlycome into being on the passing of legislation, may it not still be said that on the passing of exclusivelegislation the power of the local Parliaments to legislate is extinguished, but that on the passing ofconcurrent legislation that power does not cease?





Mr. REID (New South Wales).- I think that enough has now been said on this subject by honorablemembers both sides of the chamber, and I have only a very few remarks to offer. It appears that if thesub-section remains where it is state laws will be valid until federal legislation, but the states will not beable to alter or improve those laws during the possibly long interval between federation and federallegislation. Under these circumstances, as we leave to the states for an indefinite time the power of5maintaining the laws they have, we should grant to them the power of improving those laws. It wouldrecommend the Constitution more to a large number of persons if we put the sub-section in clause 52,thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislatesfor all.

END QUOTE10.Hansard 22-9-1897 Constitution Convention Debates QUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises thepower, the states must retire from that field of legislation. 15

END QUOTE.Hansard 30-3-1897 Constitution Convention DebatesQUOTE Mr. REID:

We must make it clear that the moment the Federal Parliament legislates on one of those points20enumerated in clause 52, that instant the whole State law on the subject is dead . There cannot be two

laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbalcriticism, because there is no doubt, whatever that the intention of the framers was not to propose anycomplication of the kind.

END QUOTE25.Hansard 30-3-1897 Constitution Convention DebatesQUOTE

The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load thecommonwealth with any more duties than are absolutely necessary. Although it is quite true that this30power is permissive, you will always find that if once power is given to the commonwealth to legislateon a particular question, there will be continual pressure brought to bear on the commonwealth toexercise that power. The moment the commonwealth exercises the power, the states must retire fromthat field of legislation.

END QUOTE35.Hansard 2-3-1898 Constitution Convention Debates QUOTE

Mr. OCONNOR .-Directly it is exercised it becomes an exclusive power , and there is no doubt that it will be exercised.40

END QUOTE

Section 109 provides for existing State legislation that was enacted prior to the Commonwealthhaving commenced to legislate on a subject matter and this includes any Colonial Act that wasamended after federation, whereas s108 of the constitution applies to any Colonial Act in force at45the time of federation but not having been amended since then but provides for the right of aState to amend such Colonial law.I am well aware that the general misconception is that s51 is concurrent powers in that both theState and the Commonwealth can legislate on the same subject matter and in any conflict thens109 applies, however this is misunderstood because as the Framers of the Constitution made50clear “ no new laws ” and as such the concurrent legislative powers only exist until theCommonwealth commences to exercise its legislative powers. When it does then it becomes anexclusive legislative power and the States must retire from this field/subject.“No new laws ” must include no amendments to existing legislation that was on foot prior to theCommonwealth commencing to legislate. In Agar v Dolheguy & Anor [2010] VSC 506 (1155

November 2010) decision the Supreme Court of Victoria THE Court completely failed toconsider the above issues and as the High Court of Australia itself stated:.





part of its jurisdiction and that s. 51 (xxxix) does not authorize the reconstitution of a state court invested withfederal jurisdiction under s. 77(iii) or of the organization through which its powers and jurisdiction are exercised.Accordingly s. 12(5) and ss. 23 and 24 as they then stood, were held ultra vires and voidEND QUOTE

Therefore all and any orders/warrants issued by the Registrar of the Infringement Court I5maintain are without legal force and so ULTRA VIRES . It also means that police officersassisting the Sheriff Office to stop and retain motor vehicle drivers for purpose of thoseunconstitutional orders/warrants to be enforced in my view is aiding and abetting and a

conspiracy to pervert the course of justice, etc.There are various parts commencing with section 18 of the National M easur ements Act 1960 (as10amended) which makes it an offence to use measuring instruments in the manner that appears tome the Victorian Police is using it.

While it appears to me that the Victorian Police, the Sheriffs Office, and others may not care lessas to breaches of law in the end where this matter ultimately be adjudicated upon by a true courtof law then no excuses can exist for the Victorian Police a, the Sheriff ’s Office and/or others as15to that they didn’t know. Indeed I have spent nearly 3 years so far to try to get some sense intoeveryone but it seems to me that even Dr Richard Brittain LLB is not able or willing to be openminded and consider the details I provided..QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 27820

The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty isto 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 Iconceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, Itis not, in my opinion, better that the court should be persistently wrong than that it should be ultimately25right..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 circumstancescountervailing the primary duty of giving effect to the law as the court finds it, the real opinion of the court30should be expressed.

END QUOTE AndQUOTE 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 the35 paramount and sworn duty of this court to declare the law truly....

END QUOTE

As I proved in the past a police officer had tampered with the infringement notice and altereddetails that was placed before the court that had not been shown on the infringement notice

provided to the driver and as such, only a fool could accept that an court could determine the40innocence or guilt of an accused without the accused having been given an opportunity to bemade aware what details actually was placed before the court and given an opportunity tochallenge this alleged evidence. It is what we refer to as being NATURAL JUSTICE what it isabout.

I will now quote the email content received from Dr Brittain, Richard LLB albeit again stress45that I do not and must not be seen to agree with the content thereof.

QUOTE 18-11-20913 EMAIL Dr Richard Brittain LLB

On Monday, 18 November 2013 3:05 PM, "Brittain, Richard" <[email protected]>wrote: 50Dear Mr. Schorel-Hlavka,

I refer to your e-mail of 10 November 2013 (below) and I would make the following responses to the issuesyou have raised:

http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
























1. Your submission is very extensive and I am unable to provide a detailed response to it. It also contains asubstantive amount of material from overseas which is likely to be inapplicable and ultimately you may havemisapprehended the law as it applies to this field. I would also make the following comments which I hope mayhelp to clarify the correct legal position for you:5

General Comments

2. The Constitution reserves certain responsibilities to the Commonwealth whilst the residual remain the

responsibility of the States.103. Under this distribution the regulation of traffic speed is a responsibility of the States (and Territories) whilstthe Commonwealth gives effect to Australia’s international measurement treaty obligations and facilitates thenational measurement system and its infrastructure.

154. Where State and Territory traffic regulators use measurement as a means of regulating traffic speed the field isoverlaid by Commonwealth measurement law provided by the national measurement legislation.

5. Section 10 of the National Measurement Act 1960 (Cth) provides that when it is necessary to show thatmeasurements are correct this can be done by showing that they have been made in terms of the relevant Australian20legal units of measurement by one of the eleven (11) means (options) detailed in paragraphs (a) to (k) of thatsection. This is described as showing that the measurements are legally traceable.

6. The legal traceability provisions of section 10 only apply when they are enlivened i.e. a necessity has beenestablished. This of course is a matter for the courts to determine in each individual situation.25

The National Measurement Legislation

7. The National Measurement Act 1960 (Cth) (the Act) and its subordinate legislation have the following roles:30

i. G iving effect to Australia’s treaty obligations wrt measurement i.e. the Treaty of the Metre and the OIML Convention including with respect to SI units.

ii. Prescribing Australian legal units of measurement for use in Australia.35

iii. Providing means by which measurement can be made and shown at law to be made interms of Australian legal units of measurement when it is necessary to do so i.e. that they are legally traceable.

iv. Facilitating the national trade measurement system in Australia by requiring inter alia that all measuring instruments in ‘use for trade’ are verified i.e. shown to be correct by being checked against legall y40traceable standards in compliance with section 10 of the Act. A precondition of verification of measuringinstruments in ‘use for trade’ is that they are of a pattern that is approved for ‘use for trade’. The net effect of this isto make all measuring instruments in ‘use for trade’ subject to a mandatory metrological control system under theAct consisting of pattern approval and verification.

45v. The Act also provides infrastructure for the metrological contr ol of ‘legal measuring

instruments’ i.e. measuring instruments used to determine physical quantities for law enforcement purposes,demonstrating compliance (or non-compliance) with a threshold or limit set by law (Commonwealth or State or

Territory) or that are or maybe a relevant issue in legal proceedings. This consists of pattern approval andcertification that can make these instruments ‘certified measuring instruments’ under the Act and its regulations. 50This metrological control system is not mandated by the Act as ‘legal measuring instruments’ are not regulated bythe Act or the NMI. It is made available to regulators other than the NMI as part of the fulfilment of Australia’streaty obligations wrt measurement.

State Traffic Legislation55

8. Whilst the national measurement legislation provides facilities for the pattern approval of legal measuringinstruments operated under State law. It is not mandatory and its absence neither vitiates the measurement made bysuch instruments nor does it render them inadmissible.

60





We shall not only look to the Federal Judiciary for the protection of our interests, but also for the just interpretation of the Constitution:

END QUOTE

HANSARD 9-2-1898 Constitution Convention Debates5QUOTE

Mr. HIGGINS .-No, because the Constitution is not passed by the Parliament. END QUOTE.

HANSARD 1-3-1898 Constitution Convention Debates 10 QUOTEMr. GORDON .- The court may say-" It is a good law, but as it technically infringes on the Constitution

we will have to wipe it out. "END QUOTE

15Hansard 2-2-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN (Victoria).-

The record of these debates may fairly be expected to be widely read, and the observations to which Iallude might otherwise lead to a certain amount of misconception.

END QUOTE20

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA27 (17 June 1999)QUOTE

Constitutional interpretation25

1. The starting point for a principled interpretation of the Constitution is the search for the intention of itsmaker s[51] . That does not mean a search for their subjective beliefs, hopes or expectations. Constitutionalinterpretation is not a search for the mental states of those who made, or for that matter approved orenacted, the Constitution. The intention of its makers can only be deduced from the words that they used inthe historical context in which they used them [52] . In a paper on constitutional interpretation, presented at30Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinio n[53] :

"We must begin, in my view, by asking what - on the best evidence available - theauthors of the text in question intended to say. That is an exercise in what I have calledconstructive interpretatio n[54] . It does not mean peeking inside the skulls of people deadfor centuries. It means trying to make the best sense we can of an historical event -35someone, or a social group with particular responsibilities, speaking or writing in a

particular way on a particular occasion."

END QUOTE

Do keep in mind that after a 5 year epic legal battle I comprehensively defeated the40Commonwealth in FAILING TO VOTE that it was unconstitutional to compel anyone to vote,in the County Court of Victoria on 19 July 2006. As such, despite that about everyone still hasthe notion that voting is compulsory, the truth is that I defeated the Commonwealth upon this..HANSARD 1-3-1898 Constitution Convention Debates 45QUOTE

Mr. GORDON .- The court may say-" It is a good law, but as it technically infringes on the Constitutionwe will have to wipe it out. "

END QUOTE50

Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention ) (Re Section 96 of the Constitution )QUOTE Mr. OCONNOR .-

In this case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE55

http://www.austlii.edu.au/au/legis/cth/consol_act/c167/



http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=




















As I disputed the validity of the Infringement Act 2006 then the legislation is ULTRA VIRES Ab Initio unless a court pronounces against it. Hence the current enforcement in disregard of thiscannot and shouldn’t be maintained. Hansard 8-3-1898 Constitution Convention DebatesQUOTE5

Mr. ISAACS .-No. If it is ultra vir es of the Constitution it would, of course, be invalid. END QUOTE

It appears to me that the Victorian Police, so to say, should come clean and provide therelevant details I requested long ago. Also, when did it serve me with a summons to attend10to court (the Infringment Court), etc.

Hansard 8-2-1898 Constitution Convention Debates QUOTE

Mr. OCONNOR .-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All15that is intended is that there shall be some process of law by which the parties accused must be heard.

Mr. HIGGINS .-Both sides heard. Mr. OCONNOR .-Yes; and the process of law within that principle may be [start page 689] anything the state

thinks fit. This provision simply assures that there shall be some form by which a person accused will have anopportunity of stating his case before being deprived of his liberty. Is not that a first principle in criminal law20now? I cannot understand any one objecting to this proposal.END QUOTE

Below an indication that all Commonwealth law m ust be “ uniform ” and cannot allow for

State legislation that is non-uniform as part of Commonwealth law!25

HANSARD 28-1-1898 Constitution Convention DebatesQUOTE Sir JOHN DOWNER It has been thought well that there should be a uniform law throughout Australia in respect to the citizens ofAustralia, and it was considered that this provision should be put into a separate clause giving exclusive30powers, in order to emphasize the fact that the Federal Parliament should legislate upon this matter.

END QUOTE

Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the National35Australasian Convention)QUOTE

Mr. BARTON (New South Wales).-I have prepared an amendment with regard to this sub-section, which puts thematter into a form which would express the intention of the Convention, whilst avoiding a difficulty. Honorablemembers will recollect the difficulty that arose over the construction of words equivalent to " uniform throughout40the Commonwealth " in the United States of America. Although no actual decision has been given, a doubt has beenraised as to the meaning of the word "uniform." The celebrated income tax case went off as to the directapportionment of taxation amongst the people according to numbers, and this point was not decided, but a great dealof doubt has been thrown on the meaning of the word in the judgment of Mr. Justice Field. I think that although theword "uniform" has the meaning it was intended to have-"one in form" throughout the Commonwealth-still there45might be a difficulty, and litigation might arise about it, and prolonged trouble might be occasioned with regard tothe provision in case, for instance, an income tax or a land tax was imposed. What is really wanted is to prevent adiscrimination between citizens of the Commonwealth in the same circumstances. END QUOTE

50This correspondence is not intended and neither must be perceived to set out all issues and ordetails and neither has anything been stated in order of priority.

Awaiting your response, G. H. Schorel-Hlavka O.W.B. ( Friends call me Gerrit )

MAY JUSTICE ALWAYS PREVAIL ®55.

(Our name is our motto! )

131229-mr g. h. schorel-hlavka o.w.b. to victorian police obl 1106575301 legal issues etc

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