20151231-schorel-hlavka o.w.b. to associate mr garry mcintosh to his honour mullaly j county court...

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p1 31-12-2015 © G. H. Schorel-Hlavka O.W.B.

INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVDA 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0

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Mr Garry McIntosh, Associate to His Honour Mullaly J. 31-12-2015 [email protected]

Cc: Mr Peter Kidd CJ County Court of Victoria, [email protected] Buloke Shire Council [email protected] Daniel Andrews Premier Victoria [email protected] Mr Martin Pakula, [email protected] & [email protected] Elliott Stafford and Associated [email protected] County Court of Victoria [email protected]

Re: 20151231-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J County Court of Victoria-Re APPEAL-

15-2502-The court's lack of integrity-etc

Sir,

the meaning of “integrity” of the court should be known to you, but if you do notunderstand/comprehend this then I suggest/recommend you consult a proper dictionary.His Honour Mullaly Jas I perceived it had a computer screen before him and yet I had no cluewhat His Honour Mullaly J was considering that were as details on his screen. In particularwhere I view His Honour Mullaly J was bullying me that the law was applying to everyone butmyself, then what details/information did His Honour Mullaly look at on the computer screenthat I was unaware of?As I did submit to His Honour Smither J when I was representing lawyer Mr Johnson QC that Ididn’t know if the solicitor of the opponents was typing on her laptop instructions to His Honour

onto his screen what ruling to make. This as His Honour Phillips J just before retirement from theSupreme Court of Victoria made known that the government had access to the court computers.

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

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

March 24, 2005QUOTE

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

particularly the independence of this court, which must, from time to time, tell the political arms

what they can and cannot do according to law. As a court we will rarely, if ever, be popular with

politicians, but while I have been sitting here, I have seen what appears to me to be some erosion of

this court's independence.

END QUOTE

Clearly, the wording “As we all know, the independence of the judiciary is a cornerstone of our

constitutional system” indicates that this justice held there was a “separation of powers” within

state level.

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

QUOTE

The corporatising of our courts

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

March 24, 2005

In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of 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 hadto bite my tongue.

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

perception of this court by others and some blurring of essential distinctions. I want to speak briefly ofthat now because I have been unable to say much about it until now and when my resignation becomeseffective, I fear that nobody will listen.

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

particularly the independence of this court, which must, from time to time, tell the political arms whatthey can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians,

but while I have been sitting here, I have seen what appears to me to be some erosion of this court's

independence.

One of the most public examples recently was the refusal of the executive to accept the decision onremuneration handed down by the tribunal established by the Parliament for the very purpose of freeing

both Parliament and the executive from the invidiousness of the decision-making process over judicialsalaries 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 executiveofficer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and beultimately answerable to the Department of Justice, which is what happened.

That appears now, if I may say so, to have been but part of a movement towards this court's becoming

absorbed into that department, and it is that to which I want to draw attention in particular; for such 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 courtof plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court isthe third arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, isto control and to limit those other arms according to law and to that end to stand between those other armsand the citizen. Hence the emphasis on the court's independence, especially from the executive.

Yet within the Department of Justice this court is now identified and dealt with - would you believe

- as "Business Unit 19" within a section labelled "courts and tribunals", a section which

indiscriminately includes all three tiers of the court structure and VCAT.

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

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 ordinarilyavail themselves of the access that that affords; one hopes the department has some controls in place. Butaccess is possible, and that seems to me altogether inappropriate when the state, in one form or another, isthe major litigant in this court, and sometimes on matters of critical import to the wider community.

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Nobody is suggesting that the executive would ever seek to influence a judge's decision directly,otherwise than by argument in open court, but what has been happening is more insidious. What isevolving is a perception of the court as some sort of unit or functionary within the Department of Justice,a perception which is inconsistent with this court's fundamental role and underlying independence.

Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structureand its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as nodifferent from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That issimply not the case; yet the distinction between a court and a tribunal has been steadily undermined over

the years, and it must be restored if the proper constitutional position is not 2to be subverted.

The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all,and ideally, without hope of additional gain or reward from anyone, including any other arm ofgovernment. Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, atribunal, properly so called, exercises administrative functions but not judicial power, and many thingsflow from that. Such a tribunal may be an arm of the executive; its members may be appointed for fixedterms, with the possibility of renewal at the discretion of the executive; and the need is not so great, to seethat their remuneration is fixed 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 alarmwhen, in addition to its administrative work, that tribunal was given some judicial power to exercise, forthe latter is altogether inconsistent with such a form of tenure.

There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial power, such would be anathema. It is one thing to tolerate the occasional acting appointment tothis court for a limited time or purpose; it is altogether different to institutionalise such temporaryappointments at the discretion of the executive. Judges of a court properly so called must have security oftenure or, in a relatively small community like this in Victoria, the whole system is put at risk. Our courtshave been remarkably free from any taint of bias or corruption; let it remain that way. A judge must be,and be seen to be, impartial and so must eschew all other interests which might one day give rise toconflict or the appearance of bias.

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

John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewelladdress to the court.

END QUOTE

And. Considering that there was no “evidence” before His Honour Mullaly J on the pre-appeal

hearing then on what legal basis was it that His Honour Mullaly J made his comment?As I prove/exposed in another case there the lawyers filed their cost charges and by this provedthey had about 9 calls to the judicial officers and on 2 occasions orders were issued as resultwithout any formal application let alone any hearing to justify such orders being issued. As such,fraternizing of a judge with a party is not unknown to me.His Honour Mullaly claimed that the magistrates Court doesn’t need any “evidence” in an ex

parte (criminal) case, whereas the documentation I have indicates the magistrate can onlyconsider the full brief if it was served upon the defendant at least 14 days prior to a hearing.Well, I was never properly/lawfully served with any full brief up to the date of this writing, andas such if His Honour Mullaly J was looking at his computer screen that may have displayed tascanned copy or other copy of the full brief then His Honour Mullaly J was considering



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communication from the other party without my knowledge and as such can in my view bedeemed to have been fraternizing with the prosecutor. In my view the “integrity” of the court is

placed in question when a judicial officer is looking at a computer screren without either/both ofthe parties being able to see the same details. It is a matter of NATURAL JUSTICE that a

judicial officer must not consider something that may affect the courts consideration that isunbeknown to either or both parties..

QUOTE 20151130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J County Court

of Victoria-Re APPEAL-15-2502-LEGAL PROCEDURES-Bigotery His Honour Mullaly J upon that then considering the ADDRESS TO THE COURT that contained mywritten submissions including once again an OBJECTION TO JURISDICTION would never even have

been aware that I requested also for a brief, which even despite the orders of His Honour Mullaly J to be posted via Australia Post by no later than 9 November 2015 still has not been provided at the date of thiswriting, but instead a purported concoction of a brief was provided that for example refers to a 18 March2013 hearing date whereas the alleged offence was claimed to be on 17 November 2014!

END QUOTE 20151130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CountyCourt of Victoria-Re APPEAL-15-2502-LEGAL PROCEDURES-Bigotery

The question then also arises was His Honour Mullaly J looking at his screen that displayed acopy of the “full brief” even so it had never been served upon me? And so was His HonourMullaly J considering a reference to an 18 March 2013 hearing date that was fictitious?

Did His Honour Mullaly J order for the prosecutor to serve a copy of the “full brief” (if it was oncourt file, that is) as was filed by the prosecutor or was His Honour Mullaly J. simply referringto some full brief not knowing if it ever existed at all?Was His Honour Mullaly J in effect ordering a copy of the full brief that His Honour held shouldhave been on court file, but wasn’t? Perhaps never existed then at all? Then again how could HisHonour Mullaly J order something that didn’t exist? Obviously if the “full brief” was on court file and it was referring to the 18 March 201 3 hearingdate then I view the Magistrates Court of Victoria was deceived/misled also, in addition that theMagistrates Court of Victoria was considering something in violation to the court rules as it (thefull brief) had not been served upon me.If you consider this is the professionalism of the court then I view you better get re-educated asto what “integrity” stands for. Even I with my self- professed “crummy English” understand thatit doesn’t mean the rot I am subjected to. Generally this kind of rot more reflects the modus operandi how a court/lawyers operates and tome this is of grave concerns.The same with the “Notice of A ppearance”, as I understand it from the prosecutor legalrepresentatives:

QUOTE 20151221-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06-Re APPEAL-15-2502 -Re Failure tocomply with court order-etc

We apologise for the delay in providing same but note that a Notice of Appearance had been filed

with the court on 13 October 2015 and we had not been notified that an alternative form was

required by the registry.QUOTE 20151221-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06-Re APPEAL-15-2502 -Re Failure tocomply with court order-etc

No copy of the alleged 13 October 2015 Notice of Appearance was served upon me and as suchthe question is was any alleged Notice of Appearance filed at all on 13 October 2015 with theCourt? And if so did the Prosecutor seek leave to serve out of time a copy, where it was notserved at all?It appears to me the prosecutor seeks to use an excuse as to an incorrect form being used as tofile the Notice of Appearance out of time, without seeking “Leave to file and serve out oftime”, and the question arises then was this some result of fraternising between the court and the

prosecutor? Who discovered the alleged incorrect form being used, and if this was



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all copies of this e-mail and any attachments.Our organisation respects the privacy of individuals. For a copy of our privacy policy please goto our website or contact us.END QUOTE

END QUOTE 20151221-Schorel-Hlavka O.W.B. to ES&a Your ref LA-05-06-Re APPEAL-15-2502 -Re Failure tocomply with court order-etc

It appears to me that what His Honour Mullaly J needs is some kind of a shopping list. Meaninghe needs to have in front of him a WHAT TO DO” list so His Honour can competently dealwith matters. After all should a presiding officer not first check if the parties claiming to appear

before him have a legal standing. Is next Santa Claus so going to appeal and His Honour MullalyJ will assume he has a legal standing because after all he (I assume) believed in Santa Claus as achild, and perhaps still does?Does the court have a “CHECK LIST” that requires court staff/a judicial officer to mark each

item as to have been complied with including if a Notice of Appearance was filed?I used to be in management and for my workers I did provide a CHECK LIST so they couldfollow this as to the specific issues to be attended to, and surely one could expect a judicialofficer to be at least as competent as ordinary employees to manage to perform such a task?

Well, it appears to me the County Cour t of Victoria “integrity” is in tatters at the very least because obviously what ordinary employees may be able to competently do some judicial officerseems to me to lack this ability.Once a 16 year boy asked for a job and his experiences was sheep herding in New Zealand. Iasked him to show me what was 1 inch. He showed me and I indicated that everything else Iwould teach him. Within 6 months he was if not equally then better than the machine setterswhop were doing it for more than 35 years. I wonder then if a 16 year old sheepherder can learnso far that within 6 months is the best setter in the company of expensive machinery then surelyone could expect a judicial officer doing no more but what he is supposed to be experienced in todo better?If His Honour Mullaly J cannot even manage basic legal issue then I view he better gets himself

a job that is within his mental abilities. As a party appearing before the court I am entitled tohave a fair minded judicial officer who is competent in the job., and not so to say some amateurwho lacks proper understanding of legal procedures. After all, despite my written submissions inthe ADDRESS TO THE COURT such as to OBJECTION TO JURISDICTION His HonourMullaly J didn’t seem to understand/comprehend that he had no judicial powers to order any

hearing De Novo but could only order a JURISDICTIONAL HEARING, but as there was no Notice of Appearance then who was the Prosecutor? Did His Honour Mullaly J appoint himselfto be the prosecutor and hence his what I deem vile and bullying attack upon me as I understoodit that the law applies to everyone else but to me?As His Honour Mullaly J failed to order a JURISDICTIONAL HEARING the De Novo hearing has no legal validity, this is because the cpoiurt cannot circumvent the OB JECTION TO

JURISDICTION. And if His Honour Mullaly J lacks competence in being able to read/understand/comprehend what the OBJECTION TO JURISDICTION stands for then I view he

better goes so to say back to the kindergarten and start all over.

It appears from the courts email that no incorrect form was filed as claimed by ES&a lawyersand as such this would be another deception as to seek to deceive me as to file and serve out oftime without bothering to seek “Leave to file and serve out of time”. And this clearly underlines how the courts allow itself to be misused and abused and so to say arethe playground of lawyers.

Despite that on 2-12-2015 I did provide a copy of the 30 October 2015 orders nevertheless weeks

later on Sunday 20 December 2o015 ES&a lawyers requested a COPY. This means they never



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read my correspondence and yet did charge for it before the magistrates Court of Victoria in anearlier hearing, and despite being then provided on 21 December 2015 with another copy theystill didn’t apply for “leave to serve out of time” the ‘full brief”, this even so they failed to

comply with the 30 October 2015 orders of His Honour Mullaly J. As such again it appears to methat so to say His Honour Mullaly (and so those assisting him) are acting as a puppet-on-a-stringfor ES&a lawyers to do whatever suits the prosecutor rather than to conduct matters in a properlegal manner.As I indicated in my “20151227-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to

His Honour Mullaly J County Court of Victoria-Re APPEAL-15-2502-How the courts are

misused-etc” regarding Mr John Murray Abbott then the court was grossly deceived with a

fictitious debt. For sure the court had court rules and in that manner cannot be blamed beinggrossly deceived by lawyers who are OFFICERS OF THE COURT having been deceptive, butthe lack of “integrity” is there where when then I notified an OFFICER OF THE COURT about this with evidence to prove this gross deception the court fails to act immediately uponthis.

QUOTE 29-12-2015 EMAIL

RE: JOHN ABBOTT Re 7 August 2015 AGC correspondencePeople

John Abbott

Dec 29 at 4:08 AM

To

'Mr Gerrit H. Schorel-Hlavka O.W.B.'

Hide

Message body

Thank you Gerrit, I have read the nine pages and appreciate the interest and effort you are taking andmaking on my behalf as well as seeking justice.

I am considering taking action against Gadens and joining GE given GE’s misconduct in the matter.

The question is:

1. Do I approach the County Court to review the case based on new evidence (letter fromGE);

2. Do I appeal the matter by first seeking to file out of time based on the said new evidenceand the fact that the matter may include fraud and thus the time element does not apply;?

It seems to me that the first approach should be to the County Court to review – your thoughts please.

Yours

John

END QUOTE 29-12-2015 EMAIL

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Well, reality is that the moment I notified an OFFICER OF THE COURT, being in this casethe Associate to His Honour Mullaly J then it is now in the hands of the court to prove its“integrity” that it will immediately, without undue delay, deal with this matter. If the associate

fails to notify the court then he can be deemed to condone the alleged deception and so become part of it as if he participated in it. Likewise any other OFFICER OF THE COURT.

We do however have another major issue at hand.For example when a Bill passed through both Houses of Parliament is granted Royal Ascent then

ordinary it is an Act of Parliament. Really? Not if it turns out that the passing of the bill was inviolation of the constitution! Indeed, the Cross Vesting Act in HCA 27 of 1999 was held by theHigh Court of Australia to violate the constitution and as such was ULTRA VIRES.

ADDRESS TO THE COURT, Part 2County Court of Victoria, Case numbers T01567737 & Q10897630

QUOTE

VICTORIA v. THE COMMONWEALTH AND CONNOR; NEW SOUTH WALES v. THECOMMONWEALTH; QUEENSLAND v. THE COMMONWEALTH; WESTERNAUSTRALIA v. THE COMMONWEALTH (1975) 134 CLR 81

Following the avermentthe proclamation continues: "Now therefore, I (The Governor-General in office)does by this my Proclamation dissolve the House of Representatives”? (At p129)

If the Senate were in fact dissolved, and if thereafterwrits for an election were issued, the election was held and a new Parliamentwas summoned to meet, I can see no difficulty in holding that the newParliament would have validly assembled. This of course is not to suggestthat this Court could not intervene to uphold the Constitution and prevent an

invalid proclamation for the dissolution of the Senate from being giveneffect. However, these questions need not be fur ther discussed.

END QUOTE

When Senator Woods was declared to be the successful candidate in a political election and thegovernor-General had him sworn in as a Senator nevertheless the High Court of Australia(rightly or wrongly) held that he was not eligible to be a Member of parliament and voided hiselection, and so the declaration by the Electoral Commission and the Governor-Generalaccepting him as a Senator was all invalid.And bye o bye didn’t I warn Buloke Shire Council long before it instituted litigation against methat I was about citizenship? Well ES&a lawyers representing or allegedly representing BulokeShire Council claimed about $1,700 cost regarding my writings, which I view was a fraudulentcharge and so perverted the course of justice. You see, ES&a Lawyers didn’t realise that with mywritings if they claim cost for it then they indicate to have read and consider its content, notmerely counting pages to charge. As such it had a legal obligation to set out the relevant issues tothe court on 20 August 2015 and 17 September 2015 as well as before His Honour Mullaly J on30 October 2015.In particular where on each occasions I provided my written submission in an ADDRESS TOTHE COURT regarding the OBJECTION TO JURISDICTION they were obligated to presentrelevant details to the court on each occasion. This they failed in my view to do!.

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)

QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his

clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he

honourably can' because his duty is not only to his client. He has a duty to the court which is



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paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or

his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It is

the cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly

conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support

it. He must produce all relevant authorities, even those that are against him. He must see that his clientdiscloses, if ordered, all relevant documents, even those that are fatal to his case. He must disregard the

specific instructions of his client, if they conflict with his duty to the court. END QUOTE

As I did set out the issue of CITIZENSHIP then this is very relevant because as indicated abovelaws such as the purported Cross Vesting Act and the purported appointment of Senator Woodsturned out to be in violation of the constitution. Then was the appointment of

judges/magistrates/judicial registrars constitutionally permissible one has to ask?Again, every facet of legality is in question once I made my OBJECTION TO JURISDICTIONand yet I am not aware that Buloke Shire Council and/or its purported legal representatives

provided any shred of evidence to prove that for example such appointments are legally valid.There ought to be no doubt that in ACE v Schorel-H lavka there was an s78B NOTICE OFCONSTITUTIONAL MATTERS and the County Court of Victoria upheld both appeals.Hence it is beyond the ability of the State of Victoria (so Buloke Shire Council on its behalf) toseek to re-litigate the same issues. I comprehensively defeated them all on the issue of

CITIZENSHIP!I submitted that the State of Victoria has no CITIZENSHIP laws and as such I cannot accept any

judicial officer is validly appointed as a judge/magistrate/judicial registrar.


QUOTE

Hansard 6-3-1891 Constitution Convention Debates

Mr. THYNNE:

The union of these colonies must take place in either one or two ways, namely, either by aunification under one all-powerful parliament, or by a federation which gives to the centralfederal parliament certain limited powers and reserves to the other parliaments all other

powers. As I think we may be in danger of overlooking some of the first principlesconnected with federation, I may be pardoned if I briefly define some of the characteristicsof a federation. I shall quote from Mr. Dicey's recent work, which is very clear in itslanguage. 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 statelegislatures, existing under the constitution.

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..



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Whatever else may be said with respect to previous decisions - and it is necessary here toconsider the principals upon which a court should act in particular cases - so much at leastemerges 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 lawas the court finds it, the real opinion of the court should be expressed.”

It is a matter of fact that I was issued with a “Certificate of Australian Citizenship ” No.

ME9401317C on the 28th day of March 1994. I do not believe that the Commonwealth Directorof Public Prosecutions contest the issue of this certificate.The certificate states;QUOTE

COMMONWEALTH OF AUSTRALIAAustralian citizenship Act 1948

Certi f icate of Austral ian Citizenship

GERRIT HENDRIK SCHORELBorn on 7 th June 1947

having applied for a Certificate of Australian Citizenship, having satisfied the conditions prescribed by the Australian Citizenship Act 19448 for the grant of such Certificate

and having undertaken to fulfil the responsibilities of a citizen.

I the Minister for Immigration and Ethnic Affairs,Grant this Certificate of Australian citizenship to the abovenamed applicant who is

an Australian citizen on and after 28 th March 1994.

Issued by the authorityOf the Minister

For Immigration andEthnic Affairs.END QUOTE

By marriage, on 28 March 2001, I became Gerrit Hendrik Schorel-Hlavka

Talbot v. Janson, 3 U.S. 133 (1795)

Yet, it is to be remembered, and that whether in its real origin , or in its artificial state,

allegiance , as well as fealty, rests upon lands , and it is due to persons. Not so , with

respect to Citizenship , which has arisen from the dissolution of the feudal system and is

a substitute for allegiance, corresponding with the new order of things. Allegiance and

citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of

compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;

allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a

badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is

freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive.

Citizenship may be relinquished; allegiance is perpetual. With such essential

differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it

can neither serve to controul, nor to elucidate. And yet, even among the nations, in

which the law of allegiance is the most firmly established, the law most pertinaciously

enforced, there are striking deviations that demonstrate the invincible power of truth ,



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and the homage, which, under every modification of government, must be paid to the

inherent rights of man.

AndThese are tacit acknowledgments of the right of expatriation, vested in the individuals; for,though they are instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious thatshe cannot do so without recognizing his right of expatriation to be superior to theEmpress's right of allegiance. But it is not only in a negative way, that these deviations insupport of the general right appear. The doctrine is, that allegiance cannot be due to twosovereigns; and taking an oath of allegiance to a new, is the strongest evidence of

withdrawing allegiance from a previous, sovereign. And

The power of naturalizing has been vested in several of the state governments, and it

now exists in the general government; but the power to restrain or regulate the right

of emigration, is no where surrendered by the people; and it must be repeated, that,

what has not been given, ought not to be assumed. It may be said, however, that such

a power is necessary to the government, and that it is implied in the authority to

regulate the business of naturalization. In considering these positions, it must beadmitted, that although an individual has a right to expatriate himself, he has not a

right to seduce others from their country. Hence, those who forcibly, or seductively,

take away a citizen, commit an act, which [p*143] forms a fair object of municipal

police; and a conspiracy or combination, to leave a country, might, likewise be

properly guarded against. Such laws would not be an infraction of the natural right of

individuals; for, the natural rights of man are personal; he has no right to will for

others, and he does so, in effect, whenever he moves the mind of another to his

purpose, by fear, by fraud, or by persuasion. And

But naturalization and expatriation are matters of internal police; and must depend

upon the municipal law, though they may be illustrated and explained by theprinciples of general jurisprudence. It is true, that the judicial power extends to a

variety of objects; but the Supreme Court is only a branch of that power; and

depends on Congress for what portion it shall have, except in the cases of

ambassadors, &c. particularly designated in the constitution. The power of declaring

whether a citizen shall be entitled in any form to expatriate himself, or, if entitled, to

prescribe the form, is not given to the Supreme Court; and, yet, that power will be

exercised by the court, if they shall decide against the expatriation of Captain Talbot .

Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen,

is independent of every social obligation. In time of war, it would be treason to

migrate to any enemy's country and join his forces, under the pretext of expatriation.

1 Dal l. Rep. 53 , and, even in time of peace, it would be, reprehensible (say the writerson the law of nature and nations) to desert a country labouring under great

calamities. So, if a man acting under the obligations of an oath of office, withdraws to

elude his responsibility, he changes his habitation, but not his citizenship. It is not,

however, private relations, but public relations; private responsibility, but public

responsibility; that can affect the right: for, where the reason of the law ceases, the

law itself must, also, cease. There is not a private relation, for which a man is not as

liable by local, as by natural, allegiance;--after, as well as before, his expatriation: He

must take care of his family, he must pay his debts, wherever he resides; and there is

no security in restraining emigration, as to those objects, since, with respect to them,

withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of



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expatriation, that other nations are at war; it must be the country of the emigrant. No nationhas a right to interfere in the interior police of another: the rights and duties of citizenship,to be conferred, or released, are matter of interior police; and yet, if a foreign war couldaffect [p*145] the question, every time that a fresh power entered into a war, a newrestraint would be imposed upon the natural rights of the citizens of a neutral country;which, considering the constant warfare that afflicts the world, would amount to a

perpetual controul. But the true distinction appears to be this:--The citizens of the neutralcountry may still exercise the right of expatriation, but the belligerent power is entitled tosay, "the act of joining our enemies, flagrante bello, shall not be a valid act ofexpatriation." By this construction, the duty a nation owes to itself, the sacred rights of thecitizen, the law of nations, and the faith of treaties, will harmonize, though moving indistinct and separate courses. To pursue the subject one step further: A man cannot oweallegiance to two sovereigns. 1Bl . Com. He cannot be citizen of two republics. If a man

has a right to expatriate, and another nation has a right and disposition to adopt him,

it is a compact between the two parties, consummated by the oath of allegiance. A

man's last will , as to his citizenship, may be likened to his last will, as to his estate; it

supersedes every former disposition; and when either takes effect, the party, in one

case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good

Christians and good republicans, it must be presumed that he rises to another, if notto a better, life and country. An act of expatriation, likewise, is susceptible of variouskinds of proof. The Virginia law has selected one, when the state permits her citizens

to depart; but it is not, perhaps, either the most authentic, or the most conclusive that

the case admits. It may be done obscurely in a distant county court; and even after

the emigrant is released from Virginia , to what nation does he belong? He may have

entered no other country, nor incurred any obligation to any other sovereign. Not

being a citizen of Virginia , he cannot be deemed a citizen of the Uni ted States . Shall he

be called a citizen of the world; a human balloon, detached and buoyant in the

political atmosphere, gazed at wherever he passes, and settled wherever he touches?

But, on the other hand, the act of swearing allegiance to another sovereign, is

unequivocal and conclusive; extinguishing, at once, the claims of the deserted, andcreating the right of the adopted, country. Sir William Blackstone, therefore, considers itas the strongest, though an ineffectual, effort to emancipate a British subject from hisnatural allegiance; and the existing constitution of France declares it expressly to be acriterion of expatriation. The same principle operates, when the naturalization law of theUnited States provides, that the whole ceremony of initiation shall be performed in the

American courts; and if it is here considered as the proof of adoption, shall it not beconsidered, also, as the test of expatriation? If America [p*146] makes citizens in that way,shall we not allow to other nations, the privilege of the same process? In short, to admitthat Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, toadmit, that Americans may be expatriated by an oath of allegiance to France. After this

discussion of principles, forming a necessary basis for the facts in this case, it is insisted,1st, That Talbot was a naturalized citizen of the French Republic at the time of receiving acommission to command the privateer, and of capturing the Magdalena. He left thiscountry with the design to emigrate; and the act of expatriation must be presumed to beregular, according to the laws of France, since it is certified by the municipality of Point a

Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick wasalso, a naturalized citizen of the French Republic, when he purchased the vessel, andreceived a commission to employ her as a privateer.

And



14/26

Page 14




Ballard was a citizen of Virginia , and also of the Uni ted States .

Within the united States of America a person granted naturalization is also granted citizenship,where as the Commonwealth of Australi a Constituti on Act 1900 (UK) does not provide for this.

Section 51(xix) provides for “naturalization”.

As already extensively placed before the magistrates in previous proceedings (upon which I rely before this Court also) some of the “Colonies” (now States) naturalized “aliens” and others didn’t

however each and every Colony did have legislation in regard of citizenship and the rights tofranchise.

The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates made clear that “naturalization” powers would be transferred from the Colonies to the newly to

be formed Commonwealth of Australia, as it would be approved by the British Parliament but“CITIZENSHIP” legislative powers would be retained by the States in the newly formed

Commonwealth of Australia.

Mr Quick proposed to give the Commonwealth of Australia constitutional powers todefine/declare “CITIZENSHIP” but this was defeated/refused by the Delegates!

I took occasion to indicate that in creating a federal citizenship, and in defining the

qualifications of that federal citizenship, we were not in any way interfering with our

position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that.

Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to giveany legislative powers to the commonwealth of australia to interfere with the rights of any personas a British subject.

Hansard 2-3-1898 Constitution Convention Debates;

Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that weare all alike subjects of the British Crown.

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, morecomprehensive, and nobler than that of the states, I would ask why is it not implanted in theConstitution? Mr. Barton was not present when I made my remarks in proposing theclause. I then-anticipated the point he has raised as to the position we occupy as subjects ofthe British Empire. I took occasion to indicate that in creating a federal citizenship,

and in defining the qualifications of that federal citizenship, we were not in any wayinterfering with our position as subjects of the British Empire. It would be beyond the

scope of the Constitution to do that. We might be citizens of a city, citizens of acolony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. Isee therefore nothing unconstitutional, nothing contrary to our instincts as Britishsubjects, in proposing to place power in this Constitution to enable the Federal Parliamentto deal with the question of federal citizenship. An objection has been raised in variousquarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to theeffect that we ought to define federal citizenship in the Constitution itself. I haveconsidered this matter very carefully, and it has seemed to me that it would be mostdifficult and invidious, if not almost impossible, to frame a satisfactory definition. There is



15/26

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in the Constitution of the United States of America a cast-iron definition of

citizenship, which has been found to be absolutely unworkable, because, among other

things, it says that a citizen of the United States shall be a natural-born or naturalized

citizen within the jurisdiction of the United States, and it has been found that that

excludes the children of citizens born outside the limits of this jurisdiction. That

shows the danger of attempting definitions, and although I have placed a proposed

clause defining federal citizenship upon the notice-paper, the subject, seems to me

surrounded with the greatest difficulty, and no doubt the honorable and learned

members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would be the first to attack any

definition, and would be able to perforate it. In my opinion, it would be undesirable to

implant a cast-iron definition of citizenship in the Constitution, because it would be

better to leave the question more elastic, more open to consideration, and more

yielding to the advancing changes and requirements of the times.

Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that theCommonwealth will seek to derogate from it, but I will not place a power in the hands ofthe Commonwealth which will enable them to derogate from it, and if that is not done itwill be merely a dead letter. Is there any citizen of the Commonwealth who is not already a

citizen of the state? State citizenship is his birthright, and by virtue of it he is entitled to thecitizenship of the Commonwealth. When you have immigration, and allow different

people to come in who belong to nations not of the same blood as we are, they become

naturalized, and thereby are entitled to the rights of citizenship.

Sir EDWARD BRADDON.-They are citizens if they are British subjects before theycome here.

Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of

the states, and it is by virtue of their citizenship of the states that they become citizens

of the Commonwealth. Are you going to have citizens of the state who are not citizens

of the Commonwealth?

Mr. KINGSTON.-In some states they naturalize; but they do not in others.

Mr. WALKER .-Is not a citizen of the state, ipso facto , a citizen of theCommonwealth?

END QUOTE

ADDRESS TO THE COURT, Part 2

County Court of Victoria, Case numbers T01567737 & Q10897630QUOTE

The Hansard records of the 2 March and 3 March 1898 Constitutional Convention Debates made clear that “naturalization” powers would be transferred from the Colonies to the newly to

be formed Commonwealth of Australia, as it would be approved by the British Parliament but“CITIZENSHIP” legislative powers would be retained by the States in the newly formedCommonwealth of Australia.

Mr Quick proposed to give the Commonwealth of Australia constitutional powers todefine/declare “CITIZENSHIP” but this was defeated/refused by the Delegates!



16/26

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I took occasion to indicate that in creating a federal citizenship, and in defining the

qualifications of that federal citizenship, we were not in any way interfering with our

position as subjects of the British Empire. It would be beyond the scope of the

Constitution to do that.

Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to giveany legislative powers to the commonwealth of australia to interfere with the rights of any personas a British subject.

END QUOTE

As such it was beyond the judicial powers of the High Court of Australia to determine otherwisein Sue v Hi ll ! And again none of the Attorney-Generals challenged any of my extensivesubmissions! As such they are deemed to have accepted the correctness of my submissions!


QUOTE

For the record, it ought to be understood that my naturalization never involved any State official,

as it was done at 55 Kings Street, Melbourne at the then offices of the Immigration Department,and as such unlike most other people my naturalization was purely conducted by Commonwealthof Australia officers, who obviously lacked any constitutional powers to provide me with“franchise” as that was a State matter. It can therefore neither be argued that somehow the stateof Victoria did provide me with “franchise” as it never did. It erroneously relied upon the

ULTRA VIRES Australian Citi zenship Act 1948 as to somehow take it that I was granted“franchise” where clearly this never could be so.

In the Moller v Board of Examiners for L egal Practitioners case it is clear that some “oath ofalliance” was required. Now, if there was some change of “oath of alliance” because of

purportedly the Commonwealth of Australia having become INDEPENDENT then at what time

was the “oath of alliance” taken by lawyers to practice at the Victorian Bar valid? And, when didlawyers already have taken this “oath of alliance” to the British Monarch then make a new “oath

of alliance” to the purported “Queen of Australia”? Or is it that we have lawyers (including

judicial officers) where some have sworn an “oath of alliance” to the LEGAL FICTION of

Queen of Australia while others to the British monarch?

I take the position that it is not relevant what the High Court of Australia may purport to makeout of matters in the Sue v Hi ll case, as ultimately it is ULTRA VIRES where they are makingdecisions that are in conflict to the intentions of the Framers (and so amended by the successfulreferendums) as expressed in the Constitution .I view it is beyond constitutional powers for the High Court of Australia to interfere with

constitutional provisions and as such we are and remain to be British nationals and ultimately itwill be up to the people to decide otherwise.END QUOTE


QUOTE

The term “citizenship” was not at all associated with “nationality” but rather covered any

“subject of the Queen” residing within the Commonwealth of Australia or for that the continentAustralia.



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The terms “Australian citizen”, “Australian citizens” , “Australian citizenship”,

“Commonwealth citizens”, “federal citizen”, “citizen of the Commonwealth” were used ongoing

by the Framers of the Constitution , as shown below, and as such were terms not as to“nationality” but in regard of citizenship as being a resident in the colonies (now States) and the

Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware thatthe term “Australian citizenship” cannot be held to relate to nationality. Neither that there can bean “Australian nationality” merely because some judges happen to desire to make such a

declaration as the proper powers to legislate for this is to follow the procedures within Section128 of the Constitution .

13-02-1890 Re; Australian citizen13-03-1891 Re; Australian citizens25-03-1897 Re; Australian citizens

Re; dual citizenship26-03-1897 Re; citizen of the Commonwealth29-03-1897 Re; Dual citizenship30-03-1897 Re; federal citizen

Re; dual citizenship31-03-1891 Re; Australian citizen

Re; citizen of the CommonwealthRe; dual citizenship

12-04-1897 Re; citizen of the Commonwealth14-04-1897 Re; citizen of the Commonwealth15-04-1897 Re; Dual citizenship15-09-1897 Re; citizen of the Commonwealth

Re; Commonwealth citizenshipRe; dual citizenship

17-09-1897 Re; citizen of the Commonwealth24-01-1898 Re; Australian citizen28-01-1898 Re; Australian citizenship

Re; Commonwealth citizens04-02-1898 Re; citizen of the Commonwealth08-02-1898 Re; Australian citizenship

Re; Commonwealth citizenshipRe; citizen of the CommonwealthRe; federal citizenshipRe; dual citizenship

15-02-1898 Re; citizen of the Commonwealth23-02-1898 Re; citizen of the Commonwealth24-03-1898 Re; citizen of the Commonwealth

01-03-1898 Re; Australian citizensRe; citizen of the Commonwealth

02-03-1898 Re; citizen of the CommonwealthRe; federal citizenshipRe; Commonwealth citizenshipRe; dual citizenship

03-03-1898 Re; citizen of the CommonwealthRe; federal citizenshipRe; Commonwealth citizenship

04-03-1898 Re; citizen of the Commonwealth10-03-1898 Re; Australian citizenship



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END QUOTE

Hansard 28-1-1898 Constitution convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

Mr. KINGSTON.-By its lessees or any one else. Pushed to a legitimate conclusion his argument wouldamount to this: That the state might dictate as to the right with which each person could step ashore on to that

soil. I do not think the matter should be viewed solely with regard to our dealing with alien races, who willchiefly come within the scope and purview of this sub-section. We ought to deal with the matter not on localor provincial, but on broad Australian lines. I know that in this respect I differ a good deal from many withwhom I generally work in sympathy, but the view which I venture to propound is this-that if you do not

like these people you should keep them out, but if you do admit them you should treat them fairly-

admit them as citizens entitled to all the rights and privileges of Australian citizenship.

END QUOTE

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 actwhich is unfavorable to the people having this security, it must in its very essence be a free

Constitution. Whatever any one may say to the contrary that is secured in the very way in which the

freedom of the British Constitution is secured. It is secured by vesting in the people, through their

representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of

securing absolute freedom to a people than that, unless you make a different kind of Executive than

that which we contemplate, and then overload your Constitution with legislative provisions to protect

the citizen from interference. Under this Constitution he is saved from every kind of interference.

Under this Constitution he has his voice not only in the, daily government of the country, but in the

daily determination of the question of whom is the Government to consist. There is the guarantee of

freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every

one has sought to strengthen. How we or our work can be accused of not providing for the popular

liberty is something which I hope the critics will now venture to explain, and I think I have made their

work difficult for them. Having provided in that way for a free Constitution, we have provided for anExecutive 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 willdetermine 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 acourt 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 theConstitution. 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 ofthis 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.

Therefore “Australian citizenship” must be understood and applied as to its true constitutionalmeaning and not otherwise. Hence, it has nothing to do with nationality!



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Page 19





QUOTE

Mr. WISE.-It would give full power to impose a tax on absentees outside theCommonwealth, but not within it. There [start page 675] should be no absentees within theCommonwealth after federation. I do not see, how, after federation, a man can be regarded

as an absentee at Sydney when he lives in Melbourne. If we are to have federation, the ideathat when a man moves from one part of the Commonwealth into another he becomes anabsentee, or ceases to be an Australian, is one that must vanish, and we ought, as far as ourConstitution will permit us, to do everything to make it vanish quickly. It is a survival ofthe old idea that there is a distinctive citizenship in a Victorian, and a distinctivecitizenship in a New South Wales man. That is the idea which I am endeavouring todestroy by supporting the amendment of Tasmania, that Australian citizenship, and thatalone, shall be recognised in every part of the Federation. The way to secure that is to

provide in the clearest terms, as Tasmania suggests, that no local Parliament can have anyauthority to, in any way, abridge the citizenship of an Australian.

Mr. REID (New South Wales).-I really think that the constant attempts which are beingmade to interfere with the rights of the states, in matters which are left to them expressly, is

becoming quite alarming. There are a number of general words already in this Constitutionwhich, I fear, may be used so as to almost destroy the independent powers of legislation ofthe states, with reference to every conceivable subject that they have left to them.

END QUOTE


QUOTE

Dual citizenship is not a dual nationality this as the Framers of the Constitution made clear;

Hansard 2-3-1898 Constitution Convention Debates

Mr. SYMON.-Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship ineach person. There may be two men-Jones and Smith-in one state, both of whom arecitizens 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.

Supreme Court of Victoria - Court of Appeal

Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)

24. Mr Bevan-John's next submissions related to the appellant's personal position. He put itthat the appellant has already publicly and deliberately declared his allegiance toAustralia and that the purpose of his taking the oath has been fulfilled by his pledge upontaking citizenship. He submitted that it was unfair to use the exemptive power under HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" theAct to excuse those who do not want to make any commitment of allegiance toAustralia at all and to deny it in respect of one who has already made the solemn pledgeof that allegiance when he formally undertook Australian citizenship.

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/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/http://www.scrib.com/InspectorRikatihttp://www.schorel-hlavka.com/


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And

32. The requirement which the Court imposes on those seeking admission to practise as barristers and solicitors in this State to take an oath or make an affirmation of allegianceretains a significance which goes beyond the mere academic and the pompous. Young,C.J. explained its importance in Re Miller [1979] V.R. 381 at 383 in terms of the statutoryrecognition given by the Parliament to the oath of allegiance and its administration to

persons carrying out significant functions in this State.

33. To my mind his Honour's comments remain valid, notwithstanding the differences to befound between the terms of HYPERLINK"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/s6.html" s.6 of the HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" LegalPractice Act 1996 and those which existed in s.5 of the Legal Profession Practice Act 1958. As Street, C.J. said in Re Howard [1976] 1 N.S.W.L.R. 641 at 643, the significanceof the oath being administered to those wishing to practise as barristers and solicitors isits reminder to them that their role will be to serve law and justice in the State, of whichthe Sovereign is the fountainhead.

34. It is, therefore, not surprising that the Court, in exercising its role as the ultimatecontroller of the profession, imposes as one of the prerequisites for admission to practisea promise of allegiance and does not lightly entertain applications to exempt persons fromthat obligation. Where, as here, exemption was sought on the grounds of a strongly heldcommitment to a republican model of government and a fear of compromising conscienceand principles if required to take an oath of allegiance, it is equally, in my view, notsurprising that His Honour exercised his discretion against exemption.

Again;He submitted that it was unfair to use the exemptive power under HYPERLINK"http://www.austlii.edu.au/au/legis/vic/consol_act/lpa1996120/" the Act to excusethose who do not want to make any commitment of allegiance to Australia at all and todeny it in respect of one who has already made the solemn pledge of that allegiance whenhe formally undertook Australian citizenship.

What was misconceived was that the “oath of alliance” is not as to “citizenship” but to

“naturalization” in regard of Subsection 51(xix) op the Constitution The oath of alliance to beadmitted to the Bar to practice in the State of Victoria is a different kind of alliance as it relatedto uphold the specific laws of the State of Victoria. The oath of alliance in the State of NSW, for

example, is to uphold the laws of that State when seeking admission to the Bar there.There can be no “oath of alliance” in regard of “Australian citizenship” as referred to by the

Framers of the Constitution as it is obtained “AUTOMATICALLY” when obtaining statecitizenship.

As I perceived it at the time of what I considered to be “naturalization” I made an oath of alliance

to become a subject of the British Monarch and indeed the Dutch Government advised me that by taking up this naturalization I no longer have the Dutch nationality. This being so then clearlythe “oath of alliance” was in regard of the naturalization powers provided for within Subsection

51(xix) to naturalize “aliens” to become British nationals, and as such nothing to do with

“citizenship” as to being to include “franchise”.

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It is not relevant if the intentions of the Commonwealth of Australia is to include “franchise” as

it simply is unconstitutional and so ULTRA VIRES.

Many “aliens” who arrived as children in the Commonwealth of Australia with their parents,who subsequently naturalized, found that years later they never were actually naturalized even sothey were voting in elections. Indeed, the Australian Electoral Commission is on record that

people were found not to be naturalized and so not entitled to vote even so they had filled out acard to be an Australian citizen and so entitled to vote.

What has occurred that often “children” understood, as their parents did, that they were

naturalized at the time their parents were but this was somehow omitted from the documentationto show so. My own 45 year old stepdaughter discovered this only a few years ago! By this,while she considers herself to be an State citizen, and so an Australian citizen and also having

been naturalized, the Commonwealth of Australia however never accept any of this. The Pochicase is another clear example, where Mr. Pochi was deported where the High Court of Australiain 1982 held he was not an “Australian citizens” despite that he had lived for most of this life andhad children here. The High Court of Australia confusing “Australian citizenship” with

“nationality”.

To many “Australian citizenship” remains to be relating to having political rights and nothing todo with nationality, and yet the Commonwealth of Australia keep advertising about “Australiancitizenship” but in real terms may and does in fact refer to some concocted “Australian

nationality” even so no constitutional powers exist in that regard.

Therefore, the fact that I had filled in enrolments cards to vote in Federal elections is of nomeaning where this was done upon misconceptions created by the Commonwealth of Australiaitself to refer to “Australian citizenship” but which in fact was not at all referring to “franchise”

of citizenship as such but to some purported Australian nationality.END QUOTE

ADDRESS TO THE COURT, Part 2

County Court of Victoria, Case numbers T01567737 & Q10897630QUOTE

As was also placed before the Magistrates Court of Victoria the evidence in the ADDRESS TOTHE COURT that the Attorney-General in November 2002 advised me that the State ofVictoria has no legislation to provide State citizenship!

Mr. SYMON.-

As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not

want to place in the hands of the Commonwealth Parliament, however much I may be

prepared to trust it, the right of depriving me of citizenship.

And

Mr. SYMON.-I would not put such a power in the hands of any Parliament. We mustrest 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.



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Therefore, regardless if the Commonwealth of Australia purports to call “nationality” citizenshipit still does not encompass a right to declare/define “CITIZENSHIP” that includes state

citizenship and State franchise.Section 41 of the Constitution is very clear that the right to vote, and it is a right not anobligation, is based upon being a State lector. If therefore, the state or States do not have anyState citizenship, then there neither can be a State franchise right, and so section 41 of theConstitution does not come in play either.

It might be clear that the magistrate on 4-12-2002 upon submission of the CommonwealthDirector of Public Prosecutions held it better that these matters be determined by the High Courtof Australia before any further proceedings were to be dealt with, if at all.As the onus of proving jurisdiction was upon the Commonwealth director of Public Prosecutionthen it had the obligation to have a ruling by the High Court of Australia upon these matters.

The fact that it failed to pursue the matters before the High Court of Australia in my view

was tantamount to abandoning its prosecution against me.

Any notion that somehow I had to pursue the matters before the High Court of Australia isabsurd, as I am not the one who instituted proceedings in the Magistrates Court of Victoria!END QUOTE

ADDRESS TO THE COURT, Part 2County Court of Victo

20151231-schorel-hlavka o.w.b. to associate mr garry mcintosh to his honour mullaly j county court...

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