FORM69-78B-2signed

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FORM 69

NOTICE OF A CONSTITUTION MATTER

O 73 r 1 High Court RulesUNDER SECTION 78B of the JUDICIARY ACT 1903MAGISTRATES COURT AT HEIDELBERG No. of 2002

GERRIT HENDRIK SCHOREL-HLAVKA

Defendantand

AUSTRALIAN ELECTORAL COMMISSION

Plaintiff

NOTICE OF CONSTITUTIONAL MATTER

1.The Defendant

GERRIT HENDRIK SCHOREL-HLAVKA

gives notice that the proceedings involves a matter arising under the constitution or involving its interpretationwithin the meaning of

section 78B of the judiciary Act 1903

.2.That the Defendant objected to the jurisdiction of the Magistrates’ Court at Heidelberg tohear the matters arising of the proceedings instituted by the applicant in regard of mattersrelating to the

PURPORTED

Federal general election on 10 November 2001.3.The said Magistrates’ Court adjourned matter, on 16 September 2002, for hearing of thequestion of “legal jurisdiction” to be heard on 4 December 2002.4.The outline of the case at hand and is as follows;(a)The Defendant was born on 7 June 1947 in Rotterdam, The Netherlands of parents being Dutch nationals and as such, the Defendant by birth was a Dutchnational.(b)The Defendant became lawfully married to his (then) wife Ingrid Maria EdithSchorel on 2 February 1969 and subsequently the had a child born 13December 1969 named Guido Alexander Silvester Sebastien Viggo Schorel.(c)The Defendant was at that time in the Dutch (conscripted) army servingwithin NATO at the (then) Iron curtain in West Germany, and later joined theregular Dutch army, from which he resigned to migrate to Australia, upon theinvitation of the Australian government to do so.This affidavit was filed by the applicant

GERRIT HENDRIK SCHOREL-HLAVKA

Of: 107 Graham Road, Rosanna East (Viewbank), In the State of Victoria, 3584Phone number: 03 –9457 7209

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(d)The Defendant, his (then) wife and child entered Australia on 7 April 1971 as“aliens”/”immigrant” all of Dutch nationality, having been provided with “avisa with Permanent residence” to enter Australia(e)The Defendant applied naturalization to become an naturalized Australian.(f)The Defendant naturalized under the Commonwealth of Australia “

AustralianCitizenship Act 1948

” on 28 March 1994, to take on the Australiannationality. The ceremony was conducted at 55 King Street, Melbourne at theDepartment of Immigration office.(g)Unbeknown to the Defendant at the time of the naturalization, on 28 January1898 the framers of the

Commonwealth Constitution Bill

debated at theConstitutional convention, as recorded in the Hansard, the issue of alien.(h)Unbeknown at the time of nominating as a candidate for the Federal election,the Hansard indicates that the framers required a person to have Statecitizenship to obtain Australian citizenship, and so by the time of the 30-11-2002 election the Defendant discovered he did not appear to be a qualifiedelector for not having State citizenship.

Hansard 2-3-1898

Dr. QUICK (Victoria).-I beg to move-That the following new sub-section be inserted after sub-section (21):-XXIA. Commonwealth citizenship.

I propose to confer upon the Federal Parliament the power to deal withthe question of Commonwealth citizenship. I have looked through theBill very carefully, and I do not see the slightest allusion in it to a federalcitizenship.And;

Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher,more comprehensive, and nobler than that of the states, I would ask why is itnot implanted in the Constitution? Mr. Barton was not present when I mademy remarks in proposing the clause. I then-anticipated the point he has raisedas to the position we occupy as subjects of the British Empire.

I took occasion to indicate that in creating a federal citizenship, and in definingthe qualifications of that federal citizenship, we were not in any wayinterfering with our position as subjects of the British Empire. It wouldbe beyond the scope of the Constitution to do that.

We might be citizensof a city, citizens of a colony, or citizens of a Commonwealth, but wewould still be, subjects of the Queen.

I see therefore nothingunconstitutional, nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to enable the Federal Parliamentto deal with the question of federal citizenship. An objection has been raisedin various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we ought to define federal citizenship in the

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Constitution itself. I have considered this matter very carefully, and it hasseemed to me that it would be most difficult and invidious, if not almostimpossible, to frame a satisfactory definition.

There is in the Constitution of the United States of America a cast-iron definition of citizenship, whichhas been found to be absolutely unworkable, because, among otherthings, it says that a citizen of the United States shall be a natural-bornor naturalized citizen within the jurisdiction of the United States, and ithas been found that that excludes the children of citizens born outsidethe limits of this jurisdiction. That shows the danger of attemptingdefinitions, and although I have placed a proposed clause definingfederal citizenship upon the notice-paper, the subject, seems to mesurrounded with the greatest difficulty, and no doubt the honorable andlearned members (Mr. Wise, Mr. O'Connor, and Mr. Symon) would bethe first to attack any definition, and would be able to perforate it. In myopinion, it would be undesirable to implant a cast-iron definition of citizenship in the Constitution, because it would be better to leave thequestion more elastic, more open to consideration, and more yielding tothe advancing changes and requirements of the times.

And

Mr. SYMON

.-

In clause 52 we have given to the Federal Parliament thepower of dealing absolutely with immigration. If we have given thatpower, then incidental to that power they will have an exclusive jurisdiction as to the status and citizenship of people who come into thiscountry

.

If, therefore, the Federal Parliament are to have this entirecontrol of the citizenship of the nation, then they have a right to say whoshall be admitted to that citizenship and who shall be excluded, and theymust also have the power to define the terms of that citizenship.

(Note; Subsequently on 2-3-1898 the convention defeated a bill to inset intothe Commonwealth Constitution legislative powers for the Commonwealth todefine and declare “citizenship”.)

Hansard 2-3-1898Mr. OCONNOR

(New South Wales).-

The Federal Parliament could do nothing in the way of defining thequalification of citizenship or the rights of citizenship beyond the limitsof the Constitution.Hansard 2-3-1898Mr. OCONNOR

(New South Wales).-

There is no territorial entity coincident with the Commonwealth. Everypart of the Commonwealth territory is part of the state, and it is only byvirtue of his citizenship of a state that any person within the bounds of the Commonwealth will have any political rights under the Constitution.Of course, when I speak of a state, I include also any territory occupyingthe position of quasi-state, which, of course, stands in exactly the sameposition.