20150113-g. h. schorel-hlavka to buloke shire council care of j groves

8/10/2019 20150113-G. H. Schorel-Hlavka to Buloke Shire Council Care of J Groves

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p1 13-1-2015 G. H. Schorel-Hlavka O.W.B.

INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD

A 1stedition limited special numbered book on Data DVDISBN 978-0-9803712-6-0PLEASE NOTE: You may order books in the INSPECTOR-RIKATI seriesby making a reservation, See alsoHttp://www.schorel-hlavka.com Blog atHttp://www.scrib.com/InspectorRikati

Buloke Shire Council 13-1-2015C/o J Groves C/o [email protected]

Re: Infringement Notice -Fire danger etcSir/Madam,5

I will add to my previous correspondence that were the matter to go before thecourts, something I would prefer not to eventuate, then if the magistrate (not that I concede themagistrate were to do so) were to make an order against me then I would seek that the magistratereduces any monies payable against the monies Buloke Shire Council owns me forunconstitutional/illegal rates it so far charge me.10Buloke Shire Council (formally also being Whycheproof Shire Council) in my view has no

constitutional/legal powers to charge rates.I quote below a correspondence that was forwarded on 13 January 2015 to Senator CoryBernardi in which I set out that the moment the commonwealth legislate upon a certain subjectlisted within s51 then it becomes an exclusivelegislative powers.15.

QUOTE LAND TAX ABOLITION C1952A00081

LAND TAX ABOLITION.No. 81 of 1952.[Assented to 6th November, 1952.]20

B E it enacted by the Queen's Most Excellent Majesty, the Senate, and the House ofRepresentatives of the Commonwealth of Australia, as follows :-

1. This Act may be cited as theLand Tax Abolition Act 1952.2. This Act snall be deemed to have come into operation on the first day of July, One thousand ninehundred and fifty-two.253. Land tax shall not be levied and paid for the financial year which commenced on the first day ofJuly, One thousand nine hundred and fifty-two, or for any subsequent financial year.4. Section fifteen of theLand Tax Assessment Act 1910-1952does not apply in respect of the financial year

which commenced on the first day of July, One thousand nine hundred and fifty-two, or in respect ofany subsequent financial year.30

END QUOTE LAND TAX ABOLITION C1952A00081

While the Commonwealth abolished the payment of land taxation it did however also show:QUOTE LAND TAX ABOLITION C1952A00081

3. Land tax shall not be levied and paid for the financial year which commenced on the first day of35 July, One thousand nine hundred and fifty-two, or for any subsequent financial year.END QUOTE LAND TAX ABOLITION C1952A00081

This part of the law remains in force and so also the right of uniformtaxation (land tax)

throughout the Commonwealth, and no land taxation can be applied and any State40(delegated municipal/shire council rates are therefore in violation of this part of the act!Further, constitutionally while the States can refer to the Commonwealth within s51(xxxvii)legislative powers the constitution (Commonwealth of Australia Constituti on Act 1900 (UK)doesnt allow for a reversal of legislative powers.Further, In Sydney Counci l v Commonwealth (1904) the High Court of Australia held that45council rates were a delegated State power of land taxation.
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At that time State land taxation was valid however when the Commonwealth commenced theLand Tax Office on 11 November 1910 then State land taxation and so the delegatedmunicipal/shire council rates no longer ware legally permissible.

Nevertheless municipal/shire councils continue to charge rates (a form of land taxation) indefiance of s109. As the Framers of the Constitution made clear any taxation collected without5legal justification has to be refunded.I recall in the past having raised with Buloke Shire Council the issue of unconstitutional rates andas such Buloke Shire Council having nevertheless ignored this I view would have a case toanswer.

10Hansard 7-3-1898Constitution Convention DebatesQUOTE Mr. HOWE.-

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 QUOTE15

Clearly it is only until the Commonwealth legislates upon a subject that the states haveconcurrent legislative powers. The moment the Commonwealth commenced to legislate itwas a different legislative area, that of the Commonwealth. Only the Commonwealth could have

re-introduced any land tax system. And it can only do so in a uniform manner. Hence, it20 couldnt retrospectively validate non-uniform rates.

THE ABN CONNECTION OF THE COURTS WITH THE PROSECUTOR ETC.

STATE OF VICTORIA DEPARTMENT OF JUSTICE ABN: 32 790 228 95925www.abr.business.gov.au/SearchByAbn.aspx?SearchText=32+790+228+959This extract is based on information supplied by businesses to the Registrar of the Australian BusinessRegister. Neither the Registrar nor the Federal Government guarantee this information is accurate, up todate or complete. Consider verifying this information from other sources.

30www.abr.business.gov.au/SearchByAbn.aspx?SearchText=32+790+228+959ABN: 32 790 228 959 View ABN history Last modified: 02 Sep 2010 ABN status: Active from

01 Nov 1999QUOTE

Trading Names:35DEPARTMENT OF JUSTICEIMES

Infringement Management & Enforcement Services

Sheriffs Office Victoria

RTBA - Residential Tenancies Bond Authority40Coroners Court of VictoriaOffice of the Special Investigations MonitorVictorian Government Solicitor's OfficeRegistrar of Births Deaths & Marriages VictoriaRegistry of Births Deaths & Marriages45OESC - Office of Emergency Services CommissionerCAV - Consumer Affairs VictoriaEnforcement ManagementMPPO - Major Procurement Program OfficeProfessional Standards Council50BEST - Bureau of Emergency Services TelecommunicationsVCATDispute Settlement CentreRoad Safety Enforcement TechnologyVictim Support Agency55Corrections VictoriaSentencing Advisory CouncilJUDICIAL COLLEGE OF VICTORIA
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BOOKMAKER & BOOKMAKERS CLERK'S REGISTRATION COMMITTEEGAMBLING RESEARCH PANELLIQUOR LICENSING VICTORIARACING APPEALS TRIBUNALTRADE MEASUREMENT VICTORIA5THE OFFICE OF PUBLIC PROSECUTIONS

PRIVACY VICTORIAOFFICE OF THE VICTORIAN PRIVACY COMMISSIONERVICTORIAN LAW REFORM COMMISSION

ADULT PAROLE BOARD VICTORIA10 ASSET CONFISCATION OFFICEBUSINESS LICENSING AUTHORITYCONSUMER CREDIT FUNDCOUNCIL AGAINST VIOLENCE

COUNTY COURT OF VICTORIA15DONOR TISSUE BANK OF VICTORIAESTATE AGENTS COUNCIL

MAGISTRATES COURT VICTORIAMOTOR CAR TRADERS GUARANTEE FUND CLAIMS COMMITTEEOFFICE OF THE PUBLIC ADVOCATE20PROSTITUTION CONTROL ACT MINISTERIAL ADVISORY COMMITTEE

SUPREME COURT OF VICTORIA

VICTORIA STATE EMERGENCY SERVICEVICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

VICTORIAN COMMUNITY COUNCIL AGAINST VIOLENCE25VICTORIAN GOVERNMENT SOLICITORVICTORIAN INSTITUTE OF FORENSIC MEDICINE

END QUOTE

No impartial judiciary!30

I have been for long as a CONSTITUTIONALIST an outspoken critic as to the diversionindeed hijacking of our judicial system and the business relationship between the Department ofJustice, the courts and even the Prostitution Control Commission..

35 Fancy that the Justice Department litigate against the Prostitution Control Commissionbeforeany court of or tribunal where all three are part of the same Australian Business Number (ABN)entity!.

Judges and indeed any lawyer admitted to the bar as a legal practitioner should hang their heads40in shame if they cooperate in this kind of hijacking of our legal system. It is in my view adishonourable conduct no decent Australian would want to participate in.

But, let not just me say this. Let see what a retiring judge has to say about this, albeit havingbeen kept silent until he is about to retire.45

From The Age

http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html

QUOTE

The corporatising of our courts

Retirement speech of John K. Phillips, Supreme Court of Victoria50

March 24, 2005
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In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of thecourt's independence.

For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting andrewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to

bite my tongue.5

I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, andespecially as I grew more senior, I have watched with some concern a change emerge in the perception of this

court by others and some blurring of essential distinctions. I want to speak briefly of that now because I havebeen unable to say much about it until now and when my resignation becomes effective, I fear that nobodywill listen.10

As we all know, the independence of the judiciary is a cornerstone of our constitutional system,

particularly the independence of this court, which must, from time to time, tell the political arms what theycan and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while Ihave been sitting here, I have seen what appears to me to be some erosion of this court's independence.

One of the most public examples recently was the refusal of the executive to accept the decision on15remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing bothParliament and the executive from the invidiousness of the decision-making process over judicial salaries and

so ensuring the independence of which I am speaking.

Less well known was the refusal of earlier governments to allow that the court's own chief executive officerbe appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately20answerable to the Department of Justice, which is what happened.

That appears now, if I may say so, to have been but part of a movement towards this court's becomingabsorbed into that department, and it is that to which I want to draw attention in particular; for such amovement must be reversed if this court is to have, and to keep, its proper role under the constitution.

This court is not some part of the public service and it must never be seen as such. Established as a court of25plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the thirdarm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to controland to limit those other arms according to law and to that end to stand between those other arms and thecitizen. Hence the emphasis on the court's independence, especially from the executive.

Yet within the Department of Justice this court is now identified and dealt with - would you believe - as30"Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately

includes all three tiers of the court structure and VCAT.

This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribedby departmental regulation, even if a part of those fees is redirected to the court by the department at itsdiscretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in35disregard, if not in defiance, of the convention that such matters are for rules of court.

And perhaps most troubling of all: the judges' computers, which were provided by and through thedepartment, are but part of the departmental network. I do not say that departmental officers ordinarily availthemselves of the access that that affords; one hopes the department has some controls in place. But access is

possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major40litigant in this court, and sometimes on matters of critical import to the wider community.

Nobody is suggesting that the executive would ever seek to influence a judge's decision directly,otherwisethan by argument in open court, but what has been happening is more insidious. What is evolving is a

perception of the court as some sort of unit or functionary within the Department of Justice, a perceptionwhich is inconsistent with this court's fundamental role and underlying independence.45

Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and

its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different


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from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply notthe case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and itmust be restored if the proper constitutional position is not 2to be subverted.

The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and5ideally, without hope of additional gain or reward from anyone, including any other arm of government.Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properlyso called, exercises administrative functions but not judicial power, and many things flow from that. Such a

tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibilityof renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is10fixed independently of the executive.

You will see, now, how far the distinction between court and tribunal has become blurred. While theVictorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of membersappointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when,in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is15altogether inconsistent with such a form of tenure.

There is talk now of acting judges for this court, and again, because this is a court which is exercising judicialpower, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court fora limited time or purpose; it is altogether different to institutionalise such temporary appointments at thediscretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively20small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably freefrom any taint of bias or corruption; let it remain that way. A judge must be, and beseen to be, impartial andso must eschew all other interests which might one day give rise to conflict or the appearance of bias.

In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals passlike shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in25one sense that is no more than the reverse side of the commitment, the total commitment, which is demandedof the appointee.

John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address tothe court.

END QUOTE30

Constitutionally there is a division between the Judiciary and the legislators and executives. NoAttorney-General has the constitutional powers to interfere with the judiciary but neverthelessthe former Attorney-General Robert Hulls and the Police Minister at the time signed a chargewith TENIX SOLUTIONS MIE Pty Ltd that it now can actually access court computers and use35them to issue Magistrate Court of Victoria court orders as well as warrants, all without any opencourt hearing. As such the corruption into the judicial system is rife, because the government

bodies allow a private corporation to not just access court files but to even issue (albeitunconstitutionally) court orders and warrants.

40 His Honour refers to being the third arm of Government, rather than the 3 rd arm of thesovereign State. No judiciary can be part of the Government because this infringes upon the

independence of the judiciary.In my submission no judicial officer of any court/tribunal can rely upon using any computersystem unless such a computer system is only accessible by the person using it having a special45

personal access key for this and prohibit anyone else to have access to the data stored on it aswell as to access it for any other purposes.I know too well how dangerous computer access can be to strangers, this as I used to purchase

broken down computers (some decades ago) and repair them and then where they previousbelonged to lawyers has access to all their client files, etc. That is also why I learned about the50

rot lawyers are up to in litigation!


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.

There can be absolutely no doubt that the security of the judiciary and so its independence havebeen severely compromised and these proceedings no longer can be completed in satisfactionthat it is not without undue interference. In my view any judicial officer who were nevertheless

proceed to make orders/judgments against an accused would disgrace his/her oath of office (if5there was any in the first place) and otherwise act in clear violation of his duties as a sentry.

Hansard 1-3-1898Constitution Convention Debates

QUOTE

Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?10

Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member

of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a

sentry. As regards a law passed by a state, every man in the Federal Parliament will be a

sentry, and the whole constituency behind the Federal Parliament will be a sentry.

END QUOTE15

We must also consider:.

Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention),20QUOTE Mr. OCONNER(New South Wales).-

Because, as has been said before, it is [start page 357] necessary not only that the administration of justice

should be pure and above suspicion, but that it should be beyond the possibility of suspicion;END QUOTE

25We can no longer hold that the judiciary is above suspicion because clearly the ABN number hasindeed a more sinister application then just referring to a taxation status.So what was its real purpose then other then perhaps Government control over judicial decisionsand access to computer network to dictate any judicial decisions?

30

A judicial officer may have prepared a judgment and orders that an accused is not guilty andhave his reason of judgment set out on his computer and then the next morning when he ius todeliver his judgment and orders finds that someone has replace part of the content and the orderswere issued that now the accused was found guilty.In my submission the courts and the tribunal must immediately suspend all and any litigation and35quarantine its computer network and remove it all together from any Government Department. Itmust be within the judiciary system accessible only to relevant authorised persons within the

judiciary system and no one else..

The Chief Justice of any court ultimately is to be held legally responsible for what goes on in the40Courts and this cannot eventuate if Government Department can intrude and indeed interfere inthe judicial processes..

Chief Justice is to submit to the Parliament directly what operating cost he/she deems requiredfor running the Court under his/her control and this should be the only outsiders contact it should45have, where Parliament determines what level of financial support it is providing and leave allother organisational matter upon the authority of the relevant Chief Justice.It should not be so and with the revelation by John D. Phillips J of the Supreme Court ofVictoria we no longer can afford this to continue..50There is a lot more in the statement of John D. Phillips J but I will not attend to this at thismoment, safe to say any FAIR MINDED PERSON would have grave concerns as to theintegrity of our judicial system.

.


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Hence I submit that without any proper security no judgment/orders can be relied upon being theproduct of the judiciary officer without the interference of outsiders or one of the parties havingaccess to the computer system to manipulate the orders/reason of judgment.

Again, the issue is not if it actual occurs as that is not for me to prove at all, the issue is that5the appearance to the general community is that the government controls or can control

the judiciary as to what it may decide.

KI NG v. JONES ; M cEWEN v. HACKERT ; JONES v. JONES. (1972) 128 CLR 221Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4), Gibbs(5) and Stephen(6)JJ.10QUOTE Barwick C.J.(1)

10. There are some basic propositions of constitutional construction which are beyond controversy. Thewords ofthe Constitutionare to be read in that natural sense they bore in the circumstances of their enactment

by the Imperial Parliament in 1900. That meaning remains, beyond the reach of any Australian Parliament,subject only to alteration by the means provided bys.128of the Constitution. The connotation of words15employed inthe Constitution does not change though changing events and attitudes may in somecircumstances extend the denotation or reach of those words. These propositions are fully documented in thereported decisions of this Court which has the task of finally and authoritatively deciding both the connotationand the denotation of the language ofthe Constitution.(at p229)

END QUOTE20

I understand that at one time the High Court of Australia seemed to take the notion that the Statesare not subject to separation of powers, I view that s106 stipulates subject to this constitutionenforces the separation of powers. The quotation below also does so!

25Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

You would turn judicial questions into political questions. You would proclaim-"Here is a question

between the state and the Commonwealth; here is a political question"; and you would make the30Judges partisans.It is one of the great advantages of private persons being able to raise these points,and not the states or the Commonwealth, that you keep the judicial bench free from the taint of

political partisanship.END QUOTE

35 The usage of the wording and not the states or the Commonwealth clearly includes the states,where this is followed by that you keep the judicial bench free from the taint of political partisanship.!

Numerous other quotations indicates to me a separation of powers within the states beingapplicable. Indeed it would be sheer and utter nonsense for States not to be subject to theseparation of powers where in fact they are created within s106 subject to this constitution40which includes the legal principle of separation of powers.

Uni versity of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others[1984] HCA 74; (1984) 158 CLR

447 (22 November 1984QUOTE45

In its express stipulation of invalidity, the section has no parallel in the Constitutions of the United

States or Canada and there is little point in looking to decisions of the Supreme Courts of thosecountries for assistance in the resolution of the question involved in the present case

END QUOTE50


447 (22 November 1984QUOTE

18. Although in argument much was made of Windeyer J.'s description of some "deeming" provisions, ofwhich s.6A is an illustration, as involving a "statutory fiction" in Hunter Douglas Australia Pty. Ltd. v. Perma55Blinds[1970] HCA 63;(1970) 122 CLR 49, at p 65, it is a notion which merely contributes anotherdimension of confusion to the question now under discussion. As his Honour pointed out, it is a convenientdrafting technique for reducing the verbiage of an enactment, its effect being to prescribe the way in which a

matter is to be adjudged. Generally speaking, no special legal consequences flow from Parliament's use
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of a deeming provision which involves a statutory fiction, though particular problems do arise in

connexion with statutory definitions - see Muller v. Dalgety& Co. Ltd.[1909] HCA 67;(1909) 9 CLR693, at p 696. It is because Parliament is sovereignand its legislative powers are plenarythat there is nogeneral objection to the enactment of laws which provide for a statutory fiction. It is not a ground of

invalidity unless the provision takes the form of a provision to oust the jurisdiction of the Court to5determine constitutional facts on which the exercise of legislative power may depend(AustralianCommunist Party v. The Commonwealth[1951] HCA 5;(1951) 83 CLR 1). Here, of course, the question ofinconsistency is one of law, requiring an ascertainment of the Commonwealth legislative intention for whichs.6A makes specific provision.

END QUOTE10


447 (22 November 1984QUOTE

3. In the course of argument on behalf of the respondents, the submission was made thats.109of the15Constitutionwas designed to ensure supremacy of valid Commonwealth laws and that it would be anomalousif such a provision were to be interpreted in a way which would detract from the parliamentary sovereignty ofthe Commonwealth. Even if that were the sole function served bys.109,that assertion would have little forcesince, on any approach,s.109enhances the supremacy of Commonwealth laws by directly invalidating Statelaws to the extent of any inconsistency. More important, the submission fails adequately to acknowledge that20

the Australian Federation was and is a union of people and that, whatever may be their immediate operation,the provisions of theConstitutionshould properly be viewed as ultimately concerned with the governanceand protection of the people from whom the artificial entities called Commonwealth and States derive theirauthority. So viewed,s.109is not concerned merely to resolve disputes between the Commonwealth and

a State as to the validity of their competing claims to govern the conduct of individuals in a particular25area of legislative power. It serves the equally important function of protecting the individual from the

injustice of being subjected to the requirements of valid and inconsistent laws of Commonwealth and

State Parliaments on the same subject.The section expressly provides that, in such a case, the law of theCommonwealth "shall prevail" and that the law of the State "shall, to the extent of the inconsistency, beinvalid". In its express stipulation of invalidity, the section has no parallel in the Constitutions of the30United States or Canada and there is little point in looking to decisions of the Supreme Courts of those

countries for assistance in the resolution of the question involved in the present case.In cases in thisCourt, it has been established that the word "invalid" ins.109should be read in the limited sense of

"inoperative" and that, when inconsistency ends, the State law again becomes operative. The decisionsto that effect, while perhaps making the ascertainment of the law sometimes more difficult, leave intact the35essential protection whichs.109affords a person faced with the competing, and conceivably impossible,demands of inconsistent Commonwealth and State laws. In that predicament, he or she cannot be subjected tothe ordeal of being legally required to comply with both. For so long as inconsistency exists,s.109of theConstitutiondeprives the State law of its validity with the consequence that he or she has the

constitutional right to ignore it.40

END QUOTE

Hansard 1-3-1898Constitution Convention DebatesQUOTE

Mr. GORDON.-45Once a law is passed anybody can say that it is being improperly administered, and it leaves open thewhole judicial power once the question of ultr a viresis raised.

END QUOTE

AndHansard 1-3-1898Constitution Convention Debates50QUOTE

[start page 1683]Mr. SYMON.-It is not a law if it is ultra vires.

END QUOTE55

Imperial Acts Application Act 1980 No. 9426

consolidation incorporating amendments up to Act 1984 No. 10087
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Laws applicable in the State of VictoriaDivision 3Justice and Liberty

[1297] 25 Edward I (Magna Carta) c. XXIX5

No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties or free customs, or beoutlawed or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful

judgement of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any

man either justice or right.10[1351-2] 25 Edward III St. V c. IV

Item, whereas it is contained in the great charter of the franchises of England that one shall be imprisoned norput out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is accordedassented, and stablished, that from henceforth none shall be taken by petition or suggestion made to our Lord15the King, or to his council, unless it be by indictment or presentment of good and lawful people of the sameneighbourhood where such deeds be done, in due manner, or by process made by writ original at the commonlaw; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, andforejudged of the same by the course of the law; and if any thing be done against the same, it shall beredressed and holden for none.20

[1354] 28 Edward III c. III

Item, that no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, norimprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law.25

[1368] 42 Edward III c. III

. . . It is assented and accorded, for the good governance of the commons, that no man be put to answerwithout presentment before justices, or matter of record, or by due process and writ original, according to the30old law of the land; And it any thing from henceforth be done to the contrary, it shall be void in the law, andholden for error.

Marriage of Baines (No. 2)(1981) 7 Fam LR 232 at 237;-

"We recognise that each party is entitled to a Fair and Proper trial and to an adequate35opportunity to adduce relevant evidence and to test the quality and veracity of theevidence adduced by the other party."

Sorell v Smith(1925) Lord Dunedin in the House of LordsIn an action against a set person in combination, a conspiracy to injure, followed by40actual injury, will give good cause for action, and motive or instant where the act itself isnot illegal is of the essence of the conspiracy.

Bringinshaw v Bringinshaw(1938) 60 CLR 336 at 361,362Not inexact proof, indefinite testimony or indirect inference (By prosecution)45

Re: Ratten(Vic Full Supreme Court) (1974) VR201 at 214Fair Trial Present Evidence

The Victorian Police Guide Fifth Ed. 196950P156 2nd last Paragraph: Accordingly where the person does not regularly plead guilty,

all the material allegations of fact and of law are put in issue or in question

Magistrates Court Act 1989, Act 51/1989 Section 27(1).Descriptions in charge:55

(1) A charge must describe the offence which the defendant is alleged to havecommitted and a description of an offence in the words of the Act or subscription


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of an offence in the words of the Act or subordinate instrument creating it, or insimilar words, is sufficient.

(2) A charge must identify the provision of the Act or subordinate instrument (if any)that creates the offence, which the defendant is alleged to have committed.

5Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998)

Dawson J pointed out in Hunter Resources Ltd v Melville when discussing thestatutory provision in that case: "substantial compliance with the relevant

statutory requirement was not possible. Either there was compliance or therewas not."10

The reasoning of Fullagar J in Clayton v. Heffron(supra) in relation to the provisions ofs 5Bofthe Constituti on Act 1902 (NSW) is mater ial in this context:

"A manner and form are prescribed by section 5B, and that manner and form must beobserved if a valid law is to be produced. Any prescription of manner and form may be15repealed or amended, but, while it stands, the process prescribed by it must be followed.That was decided Trethowan's case and I think that the whole of what is prescribed bysection 5Brelates to manner and form. It does not seem to me to be possible to say that someof the requirements of the section are matters of manner and form while others are not. The

section describes one entire process - a series of steps, one following on another - and only20the completion of the entire process can produce a valid law." (Supra at 262)

It must be clear that the Infringement Notice of 16 November 2014 fails to set out which offencewas complained about according to which specific laws.The validity or the lack thereof of the Infringement Act also must be considered where the25Victori an Constituti on Act 1975 was never approved by the State electors by way of Statereferendum!HANSARD 10-03-1891Constitution Convention DebatesQUOTE

Dr. COCKBURN:All our experience hitherto has been under the condition of parliamentary30sovereignty. 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 arenot 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 the35power of changing its constitution at its own will. Again, instead of parliament being supreme, theparliaments 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 dispensedwith, 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 interpreter40of the constitution.

END QUOTE

As such, unless a amendment to the old Colonial Constitution of Victoria was approved by State

referendum, since federation, no such validity exist and the old colonial constitution applies for45so far not in conflict with the Commonwealth of Australia Constituti on Act 1900(UK).One only has to look at the number of Members of Parliament who are authorised to sit whileholding an office for profit and you find that they violate the constitution act of the colonyVictoria. Even (without conceding the validity of the Victorian constitution act 1975) the currentnumber of Members of Parliament exceeds the number of Members of Parliament entitled to50hold an office for Profit, because a secretary is nevertheless an office for profit.But, where the Victorian Constitution Act 1975 itself is ULTRA VIRES as not having beenapproved by state referendum then this place in question also which pieces of legislation areactually validly enacted?
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The Infringement Act in my view is not a valid act as for example it provides for anInfringement Registrar under the cover of the magistrates court, that invested with federal

jurisdiction must be an OPEN COURT, but clearly the Infringement Court is nothing but acomputer without any open court sittings.As a matter of fact Civic Compliance Victoria is nothing but a trademark of the State of Victoria5and is operated by a private company as if it is a business entity and has a bank account withWestpac as Civic Compliance Vicnot being a registered business entity at all.In fact the then Attorney General Robert Hulls and the minister of Police lacked in my view any

powers to allow a private corporation to mascaraed as the Magistrates Court of Victoria, theSheriffs Office, the Victorian Police and to access the Magistrates Court of Victoria court files.10

As I raise various constitutional issues regarding the C ommonwealth of Australia ConstitutionAct 1900 (UK) then the Magistrates Court of Victoria can only deal with this matter invokingfederal jurisdiction. This means that it cannot operate under the Infringement Act as it is notan act that provides for separation of powers, in that the act dictates to an Infringement15Registrar to make an order upon documents having been provided by the InfringementManagement Service (whomever it is) without allowing any input of the accused..


QUOTE20 Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision onthe point. All that is intended is that there shall be some process of law by which the parties accused

must be heard.

Mr. HIGGINS.-Both sides heard.25END QUOTE

This is a legal principle embedded in the constitution and the states created within s106 of theconstitution subject to this constitutionare therefore bound by this legal principle.It means that the Infringement Act is invalid/ULTRA VIRES if not in total then for a30considerable extend.

Below I quote a correspondence to Senator Cory Bedrnardi which in brief sets out certainconstitutional issues, which also may be of assistance to understand the above.

35QUOTE 20150113-G. H. Schorel-Hlavka O.W.B. to Senator Cory Bernardi - Re 18c etc

WITHOUT PREJUDICESenator Cory Bernardi [email protected]

40Cc: Bill [email protected]

Mr Tony Abbott PM C/o [email protected] Andrews Premier [email protected] George [email protected] [email protected] Clive [email protected] [email protected]

Ref; 20150113-G. H. Schorel-Hlavka O.W.B. to Senator Cory Bernardi - Re 18c etc

Cory,50as a CONSTITUTIONALISTand retired Professional advocate (where I also represented

solicitors and barrister in litigation) I desire to explain what the true meaning and applicationstands for in regard of certain issues.

http://www.abc.net.au/newsradio/content/s4160760.htm 55

QUOTE
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Senator Cory Bernardi calls for new debate on racial vilificationSouth Australian Senator Cory Bernardi has renewed calls for changes to the RacialDiscrimination Act to allow unfettered debate of terrorism and other issues.

The government last year dropped plans to abolish provisions in Section 18c of the Actwhich make it illegal to "insult offend or humiliate" people on the basis of race.5

Senator Bernardi argued for those provisions to be scrapped. He now wants that issue re-opened.

"Any suggestion that we shouldn't have freedom of speech or shouldn't be able to discusscontroversial issues because we're going to insult and offend some others I think handsthose who want to stifle our freedoms a victory," he told ABC NewsRadio's Marius10Benson.

"I'm not prepared to do that under any circumstances. I want to see this country maintainedas a harmonious one and I want to protect and preserve the freedoms that we have."

END QUOTE15And I wrote to you

QUOTEFrom: Cory Bernardi

To:[email protected]:

Date:Monday, January 12, 2015 07:04 pmSubject:Message Acknowledgement from CoryBernardi.comThanks for the message you sent to me today via my website.

20Due to the high volume of correspondence I receive it isn't possible to respond to every message personally, however

please be assured your communication will have been received and read by me.

Thanks again for getting in touch.25

Cory BernardiLiberal Senator for South Australia

30Your message:

First Name

Gerrit Hendrik

Last Name

Schorel-Hlavka O.W.B.

Email

[email protected]

State
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Victoria

Purpose

Comment/Other

Question/Comment

Cory, as a CONSTITUTIONALIST I take the position that the Framers of the Constitution embed in theconstitution political and religious liberty as well as that the Commonwealth had no legislative powers as to

race issues against the "general community".If you provide an email address I will set it out in more detail, quoting the Framers of the Constitution.

END QUOTE

I will now attend to this matter.

Re Wakim; Ex parte McNall y; Re Wakim; Ex parte Darvall ; Re Brown; Ex parte Amann; Spi[1999] HCA 275(17 June 1999)

QUOTE

Constitutional interpretation

1. The starting point for a principled interpretation ofthe Constitutionis the search for the intention of its

makers[51].That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional10interpretation 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 atFordham 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 - the15authors of the text in question intended to say. That is an exercise in what I have calledconstructive interpretation[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 -someone, or a social group with particular responsibilities, speaking or writing in a

particular way on a particular occasion."20

END QUOTE

Hansard 2-2-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE Mr. DEAKIN(Victoria).-25

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

Hansard3-4-1891Constitution Convention Debates30QUOTE

Mr. DEAKIN:I think it is unkind, when struggling with one misfortune, to be reminded of another. Thedifficulty of dealing with taxation cannot be mitigated by remembering that we have an upper house. I rosesimply to point out that if these debates are, as they will be, criticised by the enemies of federation, it isdesirable that our language should be as accurate as possible, and we should hasten to explain even apparent35misconceptions which may arise from the language of hon. members.

END QUOTE

The Commonwealth of Australia Constituti on Act 1900(UK) was drafted by the Framers of theConstitution considering the following:40.


Mr. CARRUTHERS:This is a Constitution which the unlettered people of the community ought to be able to understand. 45

END QUOTE
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.


QUOTE Mr. SYMON(South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position which Mr. Barton hasdescribed, of choosing or setting up a code of laws to interpret the common lawof England. This5Constitution 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, andit 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 whole10time 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 QUOTE15

Hansard8-3-1898Constitution Convention DebatesQUOTE

Mr. ISAACS.-We want a people's Constitution, not a lawyers' Constitution.END QUOTE

20HANSARD18-2-1898Constitution Convention DebatesQUOTE Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of its Constitution,END QUOTE

25HANSARD 17-3-1898Constitution Convention Debates

QUOTEMr. BARTON.- Of course it will be argued that this Constitutionwill have been made by the Parliament ofthe United Kingdom.That will be true in one sense, but not true in effect, because the provisions of this

Constitution,the principleswhich it embodies, and the details of enactment by which those principles30are enforced, will all have been the work of Australians.

END QUOTE

HANSARD 17-3-1898Constitution Convention DebatesQUOTE35

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

40And we also should consider the following:Hansard27-1-1898Constitution Convention DebatesQUOTE

Mr. BARTON.-We are going to suggest that it should read as follows:-

the people of any race for whom it is deemed necessary to make any laws not applicable to the general45community; but so that this power shall not extend to authorize legislation with respect to the affairs ofthe aboriginal race in any state.

Mr. ISAACS.-My observations were extended much further than that. The term general community" Iunderstand to mean the general community of the whole Commonwealth. If it means the generalcommunity of the whole Commonwealth, I do not see the meaning of saying that the Parliament of the50Commonwealth shall have the exclusive authority to do that, because any single state would have the right todo it under any circumstances. If it means less than that-if it means the general community of a state-I do notsee why it should not be left to the state. We should be placed in a very awkward position indeed if any

particular state is forbidden to pass any distinctive legislation in certain well-known instances. For instance, ifVictoria should choose to enact that Afghans shall only get hawkers' licences under certain conditions which55


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are not[start page 228] applicable to Europeans she may be debarred by this sub-section from doing so. I donot know how it will affect our factory law in regard to the Chinese which does not operate beyond theconfines of Victoria at all.

Sir EDWARD BRADDON.-Why single out the Afghans?

Mr. ISAACS.-If any other race possess the same characteristic as the Afghans I will put them in the same5class. At all events, the expression general community" means the whole community of the Commonwealth. Ido not think that this has any application. If it is to have any application at all, it seems to me to be intended to

debar the state from passing legislation-necessary legislation, but purely confined to that state. I do not thinkthat that sub-section ought to be there at all if that is the meaning of it.

Mr. BARTON(New South Wales).-I think the original intention of this sub-section was to deal with10the affairs of such persons of other races-what are generally called inferior races, though I do not know

with how much warrant sometimes-who may be in the Commonwealth at the time it is brought into

existence, or who may under the laws of the Commonwealth regulating aliens come into it. We have

made the dealing with aliens, which includes a certain degree of coloured immigration, a power of the

Commonwealth, and we have made the dealing with immigration a power of the Commonwealth, so15that all those of the races who come into the community after the establishment of the Commonwealth

will not only enter subject to laws made in respect to their immigration, but will remain subject to any

laws which the Commonwealth may specially devise for them.There is no reason why the Commonwealthshould not have power to devise such laws.

Sir GEORGE TURNER.-An exclusive power?20

Mr. BARTON.-It ought to have an exclusive power to devise such laws.

Sir GEORGE TURNER.-If it does not exercise it can the state exercise it?

Mr. BARTON.-Once the Commonwealth legislates with reference to the question of aliens andimmigration, its legislation displaces the state law.

END QUOTE25

Therefore, it should be clear that any race law enacted by the Commonwealth of Australia cannotbe held against the general community.The problem we have however is that the judges of theHigh court of Australia are appointed regardless they may never have previously dealt withconstitutional issues, and hence they have their learner (P-Plate) while already deciding30constitutional issues. In Universi ty of Wol longong v Mohamed Naguib Fawzi Ahmed Metwall y& others[1984] HCA 74; (1984) 158 CLR 447 (22 November 1984) the High Court of Australiawas dealing with s109 and its meaning. And seems to have relied upon numerous precedents,even so they were handed down at a time the High Court of Australia didnt allow the Hansard to

be used, which it changed since the Tasmania Dam case. Many past decisions made without35considering the Hansard records were then misinterpreted and as such the High Court of

Australia relying on them clearly is a continued error. Moreover, judges tend to refer to what themeaning of words are in other jurisdiction rather than to consider what it was that the Framers ofthe Constitution stated and as such is applicable.The High Court of Australia therefore hold that s51 is providing concurrent legislative powers40It argued that one has to consider words in the way it is used in other countries and that Statescan continue to legislate but Section 109 provides that the Commonwealth law is overriding.Reality is that s109 has the purpose that where there is existing colonial/State law and theCommonwealth commences to legislate within its legislative powers or incidental to it then s109applies. As the Framers of the Constitution made clear that concurrent legislative powers only45exist until the Commonwealth commences to legislate then as like s52 it becomes exclusivelegislative powers.


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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 QUOTE5


Mr. BARTON(New South Wales).-If this is left as an exclusive power the laws of the states willnevertheless remain in force under clause 100.10

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 makeno new laws,but the necessity of making these new laws will beall the more forced on the Commonwealth.

END QUOTE15.


The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the

power, the states must retire from that field of legislation. 20END QUOTE.

Hansard 30-3-1897 Constitution Convention Debates

QUOTE Mr. REID:

We must make it clear that the moment the Federal Parliament legislates on one of those points25enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two

laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal

criticism, because there is no doubt, whatever that the intention of the framers was not to propose any

complication of the kind.END QUOTE30.

Hansard 30-3-1897 Constitution Convention Debates

QUOTEThe Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the

commonwealth with any more duties than are absolutely necessary. Although it is quite true that this35power is permissive, you will always find that if once power is given to the commonwealth to legislate

on a particular question, there will be continual pressure brought to bear on the commonwealth to

exercise that power. The moment the commonwealth exercises the power, the states must retirefrom

that field of legislation.END QUOTE40.


Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it willbe exercised.45

END QUOTE

The latter quotation makes it very clear that the moment the commonwealth commences tolegislate upon a certain subject within s51 then it no longer is a concurrent legislative power but

becomes an exclusive (for the Commonwealth) legislative power. Hence, other than as totaxation issues where the Commonwealth has not exercise taxation in certain areas all other50subject within s51 of the constitution are and remain to be indefinitely exclusive Commonwealth

powers.


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I will not go into details of numerous other cases but safe to say that for example Victorian lawsregarding speed cameras usage are unconstitutional where those speed cameras were not

verified by the Commonwealth of Australia.

Hansard 1-3-1898Constitution Convention Debates5QUOTE

Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power?

Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member

of a state Parliament will be a sentry, and, every constituent of a state Parliament will be asentry. As regards a law passed by a state, every man in the Federal Parliament will be a10sentry, and the whole constituency behind the Federal Parliament will be a sentry.

END QUOTE

We have for example professional truck drivers who are booked for speeding by equipment thatis not constitutionally valid and some lo\se their earning abilities, lose their family and even end15up committing suicide and this all while politicians in the Parliament are more interested forthemselves to have this government sponsored terrorism continue then to stand up and be a realsentry..

I on 19 July 2006 comprehensively defeated the Commonwealth of Australia in the County Court20of Victoria in both cases on compulsory voting aster a 5 year epic legal battle. As such, I provedin court matters and may state that despite about 50 submissions by me on numerousconstitutional issues not a single Attorney-General challenged my submissions!Details were published in CHAPTER 03 NOT VOTING IN BANANA REPUBLIC of my

book:25

INSPECTOR-RIKATI & What is the -Australian way of life- really?A book on CD on Australians political, religious & other rightsISBN 0-9751760-2-1 (prior to 1-1-2007) ISBN 978-0-9751760-2-3

One of those issues I raced was the Racial Discrimination Act being unconstitutional. I am aware30of the decision of KOOWARTA V_ BJELKE-PETERSEN(1982) 153 CLR 168

ADDRESS TO THE COURT, Part 3County Court of Victoria, Case numbers T01567737 & Q10897630

QUOTE35

FOREIGN AFFAIRS- EXTERNAL AFFAIRS-TREATIES

KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168

COURT40High Court of AustraliaGibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6)

and Brennan(7) JJ.

41. In Koowarta v. Bjelke-Petersen, I would allow the demurrer. (at p207)45

42. In Queensland v. The Commonwealth, I would declare thatss. 9and12oftheRacial Discrimination Act 1975(Cth), as amended, in so far as thosesections apply within the State of Queensland, are outside the powers of theParliament of the Commonwealth and are invalid. (at p207)50

In my view, for what it is worth, Gibbs CJ was correct, that the external affairs powerscouldnt extend the powers provided for in Section 51 of the Constitution. Indeed, the
http://www.schorel-hlavka.com/http://www.schorel-hlavka.com/http://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.scrib.com/InspectorRikatihttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s12.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s12.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s12.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s12.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s9.htmlhttp://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


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framers made clear that without referendum the commonwealth couldnt give itself more

legislative powers!The case KOOWARTA V. BJELKE-PETERSEN (1982) 153 CLR 168 was howeverdecided against Gibbs CJ.Indicating that the judges really didnt bother to read the Debates as otherwise they would5have been aware that the framers strictly curtailed Commonwealth legislative powers to beonly varied by way of Section128!

END QUOTE

We have to consider the following also:10

Hansard2-3-1898Constitution Convention Debates;QUOTE Dr. QUICK.-

The Constitution empowers the Federal Parliament to deal with certain external affairs, among whichwould probably be the right to negotiate for commercial treaties with foreign countries, in the same way as15Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon the

citizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start

page 1753] could only act for and on behalf of its citizens. END QUOTE

20

HANSARD21-1-1898Constitution Convention Debates

QUOTE

Mr. BARTON.-It has been suggested that this sub-section is embraced in the preceding one-"Externalaffairs and treaties." That is arguable; it is quite possible that it may be true; but there are a very largenumber of people who look forward with interest to the Commonwealth undertaking, as far as it can as part25of the British Empire, the regulation of the Pacific Islands. It may be, I think, as there is a doubt as towhether the one thing is included in the other, and as there are a large number of people who are interested inthis question, that it is better in deference to their views to leave the words as they are. As the subsection maydo some good, and can do no harm, I think that the objection should not be pressed.

END QUOTE30

Again it was stated The Constitution empowers the Federal Parliament to deal with certainexternal affairs and proper reading of the debates was that this related to existing legislative

powers the Commonwealth was provided with in s51 and s52 of the constitution and nototherwise.35

One cannot have that one section prohibits race legislation against the general community andthat somehow then external affairs were to be to allow race legislation against the general

community..40Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and theConstitution gives it no power to legislate in regard to that question-the Ministers for the time being in each45state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, fromthe Federal Government as a subsidy for our schools," and thus they might wink at a violation of theConstitution, 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 this50provision 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

55And also consider:

.


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Page 19





QUOTE Sir EDWARD BRADDON.-

When we consider how vast the importance is that every wordof 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,5we 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.10Hansard 8-2-1898Constitution Convention Debates

QUOTEMr. 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 shouldmake us very careful of following too slavishly the provisions of the United States Constitution, or any other15Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so usedthe material they found in every Constitution before it, and probably they felt that they would be incurring agreat deal of responsibility in leaving out provisions which might be in the least degree applicable. But it isfor us to consider, looking at the history and reasons for these provisions in the Constitution of the UnitedStates, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr.20Carruthers) that we should be very careful of every wordthat we put in this Constitution, and that we shouldhave no word in it which we do not see some reason for. Because there can be no question that in time tocome, when this Constitution has to be interpreted, every wordwill be weighed and an interpretation given toit; and by the use now of what I may describe as idle words which we have no use for, we may be giving adirection to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that25there is some reason for every clauseand every wordthat goes into this Constitution.

END QUOTE.


QUOTE Mr. BARTON.30

If we are going to give the Federal Parliament power to legislate as it pleases with regard to

Commonwealth citizenship, not having defined it, we may be enabling the Parliament to pass legislation

that would really defeat all the principles inserted elsewhere in the Constitution, and, in fact, to play ducks

and drakes with it. That is not what is meant by the term "Trust the Federal Parliament."

END QUOTE35

From the above it must be clear that the Commonwealth cannot get though some backdoormanner any additional legislative powers such as by way of using external affairs powers. .

Hansard 2-3-1898Constitution Convention Debates;40QUOTE Dr. QUICK.-

The Constitution empowers the Federal Parliament to deal with certain external affairs, among whichwould probably be the right to negotiate for commercial treaties with foreign countries, in the same way as

Canada has negotiated for such treaties. These treaties could only confer rights and privileges upon thecitizens of the Commonwealth, because the Federal Government, in the exercise of its power, [start45page 1753] could only act for and on behalf of its citizens.

END QUOTE.


QUOTE Mr. THYNNE:50

I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

One of the characteristics of a federation is that the law of the constitution must be either legally

immutable or else capable of being changed only by some authority above and beyond the ordinary

legislative bodies, whether federal or state legislatures, existing under the constitution.


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END QUOTE.

Hansard 6-3-1891Constitution Convention DebatesQUOTE Mr. THYNNE:

The constitution of this federation will not be charged with the duty of resisting privileged classes, for5the whole power will be vested in the people themselves. They are the complete legislative power of thewhole of these colonies, and they shall be so.From[start page 106] them will rise, first of all, the federalconstitution which we are proposing to establish, and in the next place will come the legislative powers of theseveral colonies. The people will be the authority above and beyond the separate legislatures,and the

royal prero

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