v2 2007 Address To The Court Tribunal g54449 00 Part 2

p1
WITHOUT PREJUDICE
VCAT (Victorian Civil and Administrative Tribunal) 9-3-2009
55 King Street, Melbourne
5
Cc; * Mr & Mrs Colosimo, 72 Shuter Avenue, Greendale, Vic 3341 francesco.c@live.com.au
* Maddocks (for Moorabool Shire Council) (Ref MYM:KJM:5285015
Email Annie.Bird@maddocks.com.au
. * Ms Preuss
10 * Harbison J C/o david.harbison@countycourt.vic.gov.au
* Mr Brendan Hoysted brendan.hoysted@justice..vic.gov.au
* Mr. Peter Sier, Senior Personal Financial Consultant, State Trustees
Peter.sier@statetrustees.com.au
* Moorabool Shire Council Councillors info@moorabool.vic.gov.au
15
Ref;
V2-2007-G54449/00 hearing 16-3-2009 ADDRESS TO THE COURT-TRIBUNAL Part 2
.
Sir/Madam,
20 I have been requested to assist Mr and Mrs Colosimo in their horrific dealings
with Moorabool Shire Council accumulating in to numerous proceedings before VCAT, which
I did so in proceedings on 27-1-2009 and now for the scheduled 16-3-2009 hearing.
I am not a lawyer but I am a “CONSTITUTIONLIST” and I have assisted as an Attorney over
the decades in numerous cases and am Author of books in the INSPECTOR-RIKATI® series
25 on certain constitutional and other legal issues. Reading the material provided to me by Mr
Francis James Colosimo it is clear that the lawyers for Moorabool Shire Council in their
request for CONTEMPT proceedings made clear that VCAT’s “integrity” must be upheld. This
is precisely what this appeal will be about regarding the decision to issue orders regarding
guardianship. Below is the ADDRESS TO THE COURT-TRIBUNAL (Part 2) for the 16-3-
30 2009 scheduled hearing The documents below is not as yet completed and neither is intended and
must not be perceived to set out all relevant matters, however for the moment it at least allow
many issued to be canvassed which never as such ever have been. The FEE SIMPLE issue, as
Mr Francis James Colosimo referred to, is exposed as being considerably different then what
so far was portrayed by the Courts and with various other States and so their courts seeking to
35 apply the Queensland ruling it is essential that this document goes in greater details to expose the
perpetrated FRAUD against property owners of FEE SIMPLE properties as set out by
CONSTITUTIONALIST and author of books in the INSPECTOR-RIKATI® series on
certain constitutional and other legal issues.
An OBJECTION TO JURISDICTION can be filed at any stage of proceedings, including just
40 prior to a sentence being issued, and the issue of the validity of the conduct of a municipal/shire
council, its unconstitutional funding and other matters are therefore canvassed in the ADDRESS
TO THE COURT-TRIBUNAL to support comprehensively the OBJECTION TO
JURISDICTION filed on 27 January 2009., and this document albeit extensive was therefore
prepared to set out matters in addition of documentation already provided previously.
p1 9-3-2009
ADDRESS TO THE COURT-TRIBUNAL Hearing 16-3-2009 Part 2
INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVD
A 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
PLEASE NOTE: You may order books in the INSPECTOR-RIKATI® series by making a reservation, by fax
0011 -61-3-94577209 or E-mail INSPECTOR-RIKATI@schorel-hlavka.com See also www.schorel-hlavka.com
p2
IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

AT MELBOURNE
PLANNING AND ENVIRONMENT LIST
5 Proceedings No. V2/2007
BETWEEN
MOORABOOL SHIRE COUNCIL
Applicant
And
10 FRANCES JAMES COLOSIMO
Respondent
ADDRESS TO THE COURT/VCAT (Part 2)

15 This document is presented on behalf of Mr Francis James Colosimo in two parts.
.
In this document where the “Respondent” refers to “Defendant” (being it quotations or
otherwise) it means “Respondent” unless the material itself does not justify this interpretation
and/or the material quoted does not indicate such in intention. Because some proceedings were
20 apparently held in the County Court of Victoria this document refers to Court/Tribunal so that
whatever location a hearing took place should not be an issue.
.
This ADDRESS TO THE COURT-TRIBUNAL (Part 2) also relies upon Part 1 and the
ADDRESS TO THE COURT-TRIBUNAL and supplements that were filed in the G54449-00
25 proceedings for GUARDIANSHIP LIST. This will avoid duplicating the same material for these
proceedings.
.
An OBJECTION TO JURISDICTION can be filed at any stage of proceedings, including just
prior to a sentence being issued, and the issue of the validity of the conduct of a municipal/shire
30 council, its unconstitutional funding and other matters are therefore canvassed in the ADDRESS
TO THE COURT-TRIBUNAL to support comprehensively the OBJECTION TO
JURISDICTION filed on 27 January 2009., and this document albeit extensive was therefore
prepared to set out matters in addition of documentation already provided previously.
.
35 NOTIFICATION:
Mr Francis James Colosimo and so his wife Mrs Mary Colosimo requested Mr G. H.
Schorel-Hlavka to assist in these matters for a hearing due in March 2009 only then to be
advised that a hearing for 27 January 2009 was listed.
It should be noted that the Victorian Civil and Administrative Tribunal in regard of the
40 Guardianship orders of 29 October 2008 address this to Mr Errol Higgins of 22 Bridge
Street, Morisset NSW 2264, the very person Mr Francis James Colosimo had made
known to him that the 28 May 2008 hearing had been adjourned, and who was assisting Mr
Francis James Colosimo with his case.
Philip Martin, Member of VCAT basis his orders also upon
45 QUOTE
In summary, after the first break, Ms Morris advised that she had made contact with the
Respondent Mr Colosimo. Mr Colosimo apparently told Ms Morris that he was
“unable” to attend the hearing due to other commitments, and that he had engaged a
lawyer (Professor Higgins) to attend to the hearing on his behalf.
50 END QUOTE
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In the contempt application the Councils lawyers in part 6 (b) refer to there are no
mitigating circumstances. Yet Court/VCAT already had claimed problems with Mr
Francis James Colosimo and decided to subsequently to issue a Guardianship order!
As such mitigating circumstances in that regard do exist.
5 .
Further 6(e) refers to
QUOTE
The status and integrity of the judicial and administrative structures upon which
society depend upon respect for the law and the orders made pursuant to those laws.
10 END QUOTE
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte
Amann; Spi [1999] HCA 27 (17 June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
15 estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the
orders made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation,
"he will feel safer if he has a decision of a court in his favour". That is because those
relying on the earlier decision may seek to enforce it against Mr Gould.
END QUOTE
20 Mr Francis James Colosimo rather then to show a disregard for the law from onset and
this is clearly referred to by Member Philips Martin relies upon his constitutional and
other legal rights.
.
The issue is therefore not at all of a wilful disobedience by Mr Francis James Colosimo
25 as to orders made by a legitimate Court/Tribunal but that to Mr Francis James Colosimo
the Court/Tribunal failed to adhere to proper legal procedures and failed to invoke
jurisdiction and therefore its orders are for all purposes and intent NULL AND VOID.
Hence, there can be no breach of orders which are ULTRA VIRES.
In part 12(a) there is a reference to the higher standard of proof as to contempt and where
30 the validity of the orders are challenged, and it appears the Member Philip Martin did not
bother to obtain formal sworn evidence from Kate Morris as to what she claimed Mr
Francis James Colosimo had stated then the Member Philips Martin clearly relied upon
“hearsay” evidence which may or may not have been accurate and leaves Mr Francis
James Colosimo without any way to challenge.
35 .
Indeed, Mr Francis James Colosimo has maintained that he was advised by Mr Errol
Higgins that the 28-5-2007 hearing had been adjourned.
.
Still, whatever may be argued about this nevertheless Member Philips Martin himself
40 referred to;
QUOTE
As indicated above, the Respondent did not make its position any easier by failing to
provide the Tribunal with any real arguments against the enforcement orders, apart
from the jurisdictional challenge which the Deputy President Gibson indicated in her 14
45 March 2007 orders should be pursued at the Victorian Supreme Court rather than at the
Tribunal.
END QUOTE
.
Therefore the Member Philips Martin should have been aware that there was a
50 jurisdictional issue and as Deputy President Gibson had refused/failed to deal with this
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then the orders for a 28 May 2007 hearing in that regard were also null and void as she
could not continue proceedings in such manner as the onus was upon the council
(Moorabool Shire Council) to prove jurisdiction. No attempt was made before Deputy
President Gibson to do so and Mr Francis James Colosimo in that regard did not have to
5 go along to all kinds of further hearing unless and until the Court/Tribunal would first hear
and determine the OBJECTION TO JURISDICTION is was well aware was made by
the Respondent.
.
Therefore, there was absolutely no need for Mr Francis James Colosimo to present any
10 evidence to the contrary of what was pursued by Moorabool Shire Council as the
Court/Tribunal has no legal position to deal with matters in conflict between the parties
unless and until it had appropriately dealt with the OBJECTION TO JURISDICTION
and had dismissed it. Failing to dismiss means it never invoked jurisdiction! Therefore any
orders made subsequently, including the orders for Guardianship are NULL AND VOID!
15 .
When Mr G. H. Schorel-Hlavka was charged with FAILING TO VOTE a 5-year long
litigation battle pursued and Mr G. H. Schorel-Hlavka wasn’t interested to argue about
“evidence” if he did or didn’t vote, rather he objected to the jurisdiction of the court and
that the relevant legislation was unconstitutional. In the end the County court of Victoria
20 upheld this.
And that is the point, unless and until a court dismiss formally by judicial determination an
OBJECTION TO JURISDICTION the Court/Tribunal never invoked any jurisdiction
and any order therefore is without legal force.
To then pursue to punish a person for doing no more what the High Court of Australia
25 made clear a person can do with unconstitutional court orders is a total absurdity.
No judge can enforce a purported finding of contempt where Mr Francis James Colosimo
all along acted within his constitutional and legal rights. To do otherwise the Court would
do nothing less but to vandalise the very integrity of the Court so much referred to in the
Affidavit part 6(e)
30 .
The proceedings on 27 January 2009 appear to relate to “Guardianship and
Administration Act 1986” albeit for anyone being able to make an appropriate assessment
as to matters he/she must understand what Mr Francis James Colosimo is about and for
this the set out below (in the electronic format) is to assist so that finally it is not
35 ASSUMED but appropriately CONSIDERED what Mr Francis James Colosimo
(referred to also as Mr Francis James Colosimo/Respondent) is about.
To use an example; when a police officer kills a person no one in his right mind would hold
that the conduct of the police officer was either lawful or unlawful without considering the
relevant circumstances as they were then for the police officer concerned. The objective
40 and subjective test is also to be applied in this CONSIDERATION. Likewise so is this
relevant as to the position of Mr Francis James Colosimo in regard of what he stands for
and how his actions may to an ill perceived conduct might be deplorable while in the eyes
of the Courts upon a proper judicial consideration of all relevant constitutional and legal
issues his conduct was anything but lawful and exemplary, in that a person seeking to rely
45 upon the principles of the constitution never should be deplored for doing so but rather that
the Courts if anything should give its total support for doing so. Not to do so only cause
frustration within the community and may be an example for others that to take the law into
their own hands might be a alternative way to seek to resolve matters where the
Courts/Tribunals fails to appropriately CONSIDER all relevant matters and in the process
p4 9-3-2009
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are destroying the credibility and standing of a person in society as well as causing uncalled
harm to the person concerned and so his/her family.
What appears to be a part of a transcript of a hearing on 14 February 2008 it was stated by
Harbison, Tribunal Chair, “Mr. Colosimo has attempted to raise “jurisdictional
5 matters”, and has been given the opportunity to apply to the Supreme Court to have
these matters “resolved” but has not taken the opportunity to do so.”
As shown in the electronic version of this document the onus is upon the Prosecutor (in this
case the Mooorabool Shire Council to prove jurisdiction as there is no such system in
jurisdictional matters that a Defendant must prove the Prosecutor’s right to prosecute. It
10 therefore is clear that on that occasions also the Court/Tribunal member lacked sufficient
knowledge and competence in appropriate legal procedures to be followed and hence
proceeded not just with a case failing to invoke jurisdiction and as such ended up making
orders which were ULTRA VIRES, but worse went on to cause feat to the unrepresented
Defendant of a term in imprisonment.
15 Those who are ignorant to read this document in its entirety, no matter the time it may take,
will only underline that they are not a bit interested in JUSTICE but rather to abuse and
misuse the legal processes for their own personal gains/vendetta (if that is the right word to
express I as to the severity cause upon Mr Francis James Colosimo).
It must be understood that not Mr Francis James Colosimo but rather Moorabool Shire
20 Council created this utter legal mess in various ways and therefore they must be held
accountable for this and that any Court/Tribunal dealing with this matters use them as an
example to seek to avoid ever again a person who pursues no more but his constitutional
and other legal rights never again is caused to suffer in such manner, let alone his family.
The Guardianship and Administration Act 1986, Act No. 58/1986;
25 1. Purpose
The purpose of this Act is to enable persons with a disability to have a guardian or
administrator appointed when they need a guardian or administrator.
.
This case deals with a person who at the time without any mens rea upon his understanding
30 of constitutional and other legal rights placed a shed on his property and who since then has
disputed the right of Moorabool Shire Council, as Dillon v Plenty was and in that case the
Guardianship and Administration Act 1986 was not abused as to have the right of a
FEE SIMPLE holder subjected to this legislation to the contrary the High Court of
Australia upheld the FEE SIMPLE rights.
35 This is not some case where some dangerous animal is let loose at great danger of others
but about a shed that unlikely is going to leave the property as to attack some innocent
member of the public, that every kind of protective action is justified to ensure the general
public’s safety.
It might be therefore more an issue if the very persons who are seeking to use the
40 Guardianship and Administration Act 1986 for seeking to defeat a persons constitutional
and other legal rights including that of FEE SIMPLE themselves may be better to be
subjected to the Guardianship and Administration Act 1986 rather then to be let loose to
continue their absurd conduct against a peace-loving man as the application of the
Guardianship and Administration Act 1986 showed to be. As this document sets out there
45 is no onus upon Mr Francis James Colosimo to prove anything, rather the onus was upon
Moorbabool Shire Council to prove there was in the first place jurisdiction for the
Court/Tribunal to exercise jurisdiction and this can only be achieved by the Court/Tribunal
CONSIDERING each and every objection that Mr Francis James Colosimo has placed
p5 9-3-2009
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before the court/Tribunal and not by way of what was a rather deceptive EX PARTE
hearing to make a ruling against an unlettered person as to pretend the Court/Tribunal has
jurisdiction and can issue orders as such.
This kind of conduct is not only utterly and totally deplorable but more over undermines
5 the very pillars upon which DEMOCRACY is build.
It is clear from the material filed in the Court/Tribunal that Mr Francis James Colosimo
had every intention to appear with witnesses for the 28 May 2007 hearing but on advise of
Mr Errol Higgins that the matter was adjourned, then advised witnesses not to do so and
made himself alternative plans. This kind of conduct is a kind of conduct the Courts in the
10 past held was not that Mr Francis James Colosimo deliberately ignored to attend to a
hearing but that Mr Francis James Colosimo was entitled to rely upon the advise he had
understood was provided to him and as such the hearing was for this EX PARTE, as the
conduct of Kate Morris for Moorabool Shire Council to contact Mr Francis James
Colosimo may be deemed inappropriate where she knew Mr Francis James Colosimo
15 relied upon Mr Errol Higgins to deal with matters and was assured by Mr Errol Higgins
that he was doing so. (as set out below in the electronic person).
Mr Francis James Colosimo therefore was well entitled to maintain his constitutional and
other legal issues and it would have been for this better if the Court/Tribunal had taken
appropriate consideration of this and reheard the matters ensuring that Mr Francis James
20 Colosimo was given a proper and adequate opportunity to present his case, if there was in
the first place a CASE TO ANSWER, this as without jurisdiction no valid Court/Tribunal
orders issued has any legal force!
Due to the considerable amount of work involved to research and otherwise present
material it was held better to provide this document titled ADDRESS TO THE
25 COURT/TRIBUNAL as is subject to corrections and amendments rather then to wait until
the last minute to file it and leave other parties little or no time as to digest it all.
By providing the DRAFT format at least the other parties can become aware of what Mr
Francis James Colosimo and his wife are seeking to pursue and giving a more details
albeit limited set out regarding constitutional issues.
30 Certain repeat of quotations are needed in the manner of presenting a submission/set out
but also some duplication may have eventuated which due to the limited time for the 27-1-
2009 hearing cannot be avoided to be omitted. What is rather important is that duplicated
or not Mr Francis James Colosimo provides more comprehensive submissions to the
Court/Tribunal as to his constitutional and other legal rights.
35 As Mr Francis James Colosimo himself was unable to compile the content of this
ADDRESS TO THE COURT/TRIBUNAL, because of the numerous legal technicalities
and set out required to do so, for this required the assistance of Mr G. H. Schorel-Hlavka,
a CONSTITUTIONALIST and Author of books in the INSPECTOR-RIKATI® series
on certain constitutional and other legal issues, and unlike lawyers, Mr G. H. Schorel-
40 Hlavka is providing his assistance FREE OF CHARGE and is intended to be provided
with ENDURING OPOWER OF ATTORNEY also.
In view of Mr G. H. Schorel-Hlavka after a 5-year litigation having comprehensively
defeated the Crown on all constitutional and other legal issues he had raised on 19 July
2006 in the County Court of Victoria there ought to be no doubt that no matter how strange
45 some of the presentations may be the fact that the Crown consented for the court to grant
the orders sought by Mr G. H. Schorel-Hlavka and without any attempt by the Crown to
challenge any of his extensive submissions on constitutional and other legal issues then it
must be accepted that no matter how strange an issue like “CITIZENSHIP ” may be to the
ordinary Reader the Court upheld it all and therefore judicial notice is to be taken of the
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orders issued by consent of the Crown! More over it has a considerable relevant to the FEE
SIMPLE issue as set out in the electronic version of this document.
The issue of FEE SIMPLE must not be perceived as may have been decided by past
judicial officers as this document sets out why the constitutional meaning is to be adhered
5 to.
This document has been prepared involving communication between Mr Francis James
Colosimo and others with Mr G. H. Schorel-Hlavka but has not been able to be checked
for final approval and any inaccurate details Mr Francis James Colosimo but again due to
the time constrains and not seeking to deny the Court/Tribunal and other parties some
10 sufficient time to consider the material the DRAFT is pre-issued.
It should be understood that if the proceedings before the Court/Tribunal in the first place
were without jurisdiction then any subsequent litigation including those purportedly within
the provisions of the Guardianship and Administration Act 1986 are, so to say, not
worth the paper it is written upon and are for all purposes and intend ULTRA VIRES and
15 without legal force!
QUOTE Section 46
(3) The Tribunal cannot make an order under sub-section (1) unless it is
satisfied that the order would be in the best interests of the person in respect of
whom the application is made.
20 END QUOTE
On the one hand the lawyers for Moorabool Shire Council pursues that Mr Francis
James Colosimo is to be imprisoned as he deliberately ignores Court/Tribunal orders and
knows what he is required to do and on the other hand the Court/Tribunal declared him to
suffer a disability to such an extend that a guardian had to be appointed.
25 QUOTE Section 50
Ancillary powers of administrator
(1) An administrator may on behalf of a represented person sign and do all such things
as are necessary to give effect to any power or duty vested in the administrator.
END QUOTE
30 On that basis why hold contempt proceedings against Mr Francis James Colosimo when
already an administrator was available to deal with matters since the Guardianship orders
were issued, one may ask?
.
It must be clear that at least since 9 March 2007 the Court/Tribunal was made aware by Mr
35 Francis James Colosimo that there were constitutional and other legal issues
OBJECTING TO THE JURISDITION of the Court/Tribunal and also to the legal
standing of Moorabool Shire Council. May it be by ERROR IN LAW or otherwise for
Deputy President Gibson to hold it was an issue for the Supreme Court of Victoria
nevertheless unless and until this matter was settled the Court/Tribunal could not invoke
40 jurisdiction being it to deal with the conflict between Mr Francis James Colosimo and
Moorabool Shire Council and/or the guardianship issue.
.
While a party to proceedings may pursue a mandamus or other order to seek to prevent a
Court/Tribunal to proceed with hearing matters it is not an obligation to do s and where
45 another remedy is available to Mr Francis James Colosimo to simply maintain his
constitutional position to oppose jurisdiction then the onus was for Moorabool Shire
Council to prove jurisdiction. As this never eventuated all and any orders subsequently
issued are null and void and leaves Mr Francis James Colosimo the right to sue also those
members of the Court/Tribunal as they acted outside their juridical position by having
p7 9-3-2009
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ignored to first invoke formally jurisdiction. Likewise Mr Francis James Colosimo may
pursue others involved in this terrible case and the harm caused upon himself as well as his
family.
.Obviously all monies so far taken from Mr Francis James Colosimo, including any
5 monies charged by the Administrator, must be refunded to Mr Francis James Colosimo as
the orders are and remain to be a nullity.
.
It is anticipated that Mr G. H. Schorel-Hlavka will assist the respondents at the 27-1-2009
hearing.
10 .
Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
QUOTE
"A frequent consequence of self representation is that the court must assume the burden
of endeavouring to ascertain the rights of the parties which are obfuscated by their own
15 advocacy."
END QUOTE
.
Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
20 QUOTE Sir JOHN FORREST (Western Australia).-
“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
25 .
What appears to be a part of a transcript of a hearing on 14 February 2008 it was stated by
Harbison, Tribunal Chair,
QUOTE
Mr. Colosimo has attempted to raise “jurisdictional matters”, and has been given the
30 opportunity to apply to the Supreme Court to have these matters “resolved” but has
not taken the opportunity to do so.”
END QUOTE
As shown in the electronic version of this document the onus is upon the Prosecutor (in this case
the Moorabool Shire Council to prove jurisdiction as there is no such system in jurisdictional
35 matters that a Defendant must prove the Prosecutor’s right to prosecute. It therefore is clear that
on that occasions also the Court/Tribunal member lacked sufficient knowledge and competence
in appropriate legal procedures to be followed and hence proceeded not just with a case failing to
invoke jurisdiction and as such ended up making orders which were ULTRA VIRES, but worse
went on to cause feat to the unrepresented Defendant of a term in imprisonment.
40 .
The absurdity proffered by the Court/Tribunal member that Mr Francis James Colosimo is to
apply to the Supreme Court of Victoria as to make a ruling if VCAT has judicial powers is
unbelievable. As set out below the onus rest upon the party instituting litigation to prove to the
Court/Tribunal that it has jurisdiction and so in particular where a Responded challenge the
45 courts jurisdiction.
The fact that Harbison refused to hear anything about constitutional and FEE SIMPLE issues
may underline that the Court/Tribunal member lacked competence to deal with legal matters
such as OBJECTION TO JURISDICTION!
While much was relied upon the decision of Bradford v Democilus as to imprison Mr Francis
50 James Colosimo for CONTEMPT OF COURT, no judicial officer in his rights mind could
p8 9-3-2009
p9
even contemplate to imprison a person for lawfully invoking the rights so much stated by the
High Court of Australia as not to comply with orders which are unconstitutional and without
legal force.
.
5 Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
QUOTE
estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders
10 made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
safer if he has a decision of a court in his favour". That is because those relying on the
earlier decision may seek to enforce it against Mr Gould.
END QUOTE
.
15 Mr Francis James Colosimos position is that Harbison did not act within judicial capacity to
make statements against Mr Francis James Colosimo that he could face imprisonment because
Harbison never invoked jurisdiction and as such acted without protection of judicial office.
.
The correspondences of Mr Francis James Colosimo time and again related to the
20 constitutional issues, FEE SIMPLE and for example also that Moorabool Shire Council was
not constitutionally recognised and that it was part of a corporation.
As those issued had previously been canvassed by Mr G. H. Schorel-Hlavka and after a 5-year
litigation the County Court of Victoria on 19 July 2006 with consent of the Crown, and the
Victorian Attorney-General did not oppose this, even so having been served years earlier with a
25 Section 78B NOTICE OF CONSTITUTIONAL MATTERS, then for all purposes and intent
Mr Francis James Colosimo was rightfully entitled to rely upon this County Court of Victoria
decision and where the lawyers of Moorabool Shire Council failed to oppose this against Mr
Francis James Colosimo in an appropriate manner in what is ordinary considered a legal
process to deal with an OBJECTION TO JURISDICTION then it was not for the
30 Court/Tribunal to show bias and to somehow appearing to assist the lawyers in their case against
an unrepresented Defendant.
In particular where the transcript appears to show that Mr Francis James Colosimo stated;
QUOTE
This matter should be heard properly, Justice must be served
35 END QUOTE
then there can be no excuse for the Court/Tribunal not having done so.
.
Fraudulent conduct?
.
40 Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF
AUSTRALIA.
QUOTE
"In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is
willfully false. The sub-section should be read according to its terms. To say that 'false
45 evidence should be read as 'willful false evidence' is to introduce a provision not
expressed by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a
witness 'who knowingly gives false testimony'. This interpretation is reinforced by
reference elsewhere in s79A(1) to the separate grounds of fraud and suppression of
evidence which would comprehend cases of willful false evidence. At common law, a
50 judgement will be set aside if it has been obtained by fraud. In the exercise of this
p9 9-3-2009
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jurisdiction, it has been held that an applicant must show something more than perjury, ie.
new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946] 175 LT
143). This tends to suggest that the words 'false evidence' should be given their literal
meaning"
5
" In my opinion, the jurisdiction extends not only to the setting aside of judgements
which have been obtained without service or notice to a party (Craig v. Kanssen [1943]
KB 256 at 262 - 263) but to the setting aside of a default or ex-parte judgement obtained
when the absence of the party is due to no fault on his part. I can find no indication in the
10 Family Law Act of an intention to displace this inherent jurisdiction."
END QUOTE
.
Byrne v Byrne (1965) 7 FLR 342 at 343
QUOTE
15 “Fraud: Usually takes the form of a statement of what is false or the suppression of what
is true.”
END QUOTE
.
Ordinary in litigation a Court/Tribunal has to assess if the cost claimed by a party is
20 REASONABLE in the circumstances. Obviously the Court/Tribunal granting the orders for cost
seems to have totally disregarded doing so. And more then likely this may expose some culture
of a modus operandi where unrepresented parties can be deprived of justice and the
Court/Tribunal is willing to order any exorbitant amount of cost against an unrepresented party
totally disregarding any kind of accountability for the lawyers to show genuine and reasonable
25 incurred cost.
.
Combined with numerous other matters involving the Court/Tribunal any fair-minded person
could not but question the integrity of the court/Tribunal in this kind of conduct towards Mr
Francis James Colosimo.
30 .
QUOTE
Matter Number 5285015
Matter name: 72 Shuter Ave, Greendale – Enforcement
Status Tran Date Action Action By Narrative Billed
35 $
(Solicitor/Partner/
Articled Clerk/
Library)
40 Billed 23/05/2007 File attendance Solicitor Telephone attendance on coral Young taking
$28.50
instructions in relation to enforcement order
QUOTE
45 Matter Number 5285015
Matter name: 72 Shuter Ave, Greendale – Enforcement
Status Tran Date Action Action By Narrative Billed
$
(Solicitor/Partner/
50 Articled Clerk/
Library)
Billed 23/05/2007 File attendance Solicitor Telephone attendance on coral Young regarding
$142.50 site inspection and affidavit. Update affidavit of
p10 9-3-2009
p11
Coral Young
Billed 23/05/2007 Research Library Printed zoning and overlay maps for the property.
$0.00
5 Billed 23/05/2007 Research Articled Clerk Source and copy two cases from the AATR’s
$0.00
Billed 24/05/2007 Research Articled Clerk Research for Kate Morris re ‘dependant person’s
$0.00
unit’ and the meaning of ‘moveable’
10
Billed 24/05/2007 File attendance Solicitor Drafting and amending submission for hearing.
$826.50
Billed 25/05/2007 Conferring Partner Conferring with Kate Morris on 27/5/07
$205.00
15 Billed 25/05/2007 Reviewing Partner Reviewing Kate Morris draft submission
$492.00
Billed 28/05/2007 File attendance Solicitor Preparation for hearing including organising
$285.00 copy documents, witnessing swearing of affidavit
by Ms Young, making final amendments to
20 submission.
Billed 28/05/2007 Attendance at court Solicitor Attending hearing on behalf of Council

$99?.?0
Billed 28/05/2007 File attendance Partner Supervise Kate Morris
25 $94?.?0
Billed Total
$11,103.50
30 Billed 31/05/2007 File attendance Solicitor Perusing orders and drafting letter to Council
$57.00 enclosing a copy of same
Billed 4/06/2007 File attendance Solicitor Drafting letter VCAT and respondent enclosing
$142.00 details of cost claimed and cost submission.
35
Billed 4/06/2007 File attendance Partner Reviewing letter to VCAT
$123.00
Unbilled Total
40 $322 .50
Billed Total
$11,426.50
END QUOTE
45 .
MDP to Defendant;
QUOTE
We will abide by the provisions of the Planning & Environment Act …..and if you wish to
challenge the Planning & Environment Act, the place to do that is not here”
50 END QUOTE
.
What the Court/Tribunal member didn’t seem to understand is that where there is a challenge to
the application/validity of legislation, and Mr Francis James Colosimo was well within his
legal rights to do so, then the Court/Tribunal cannot merely assume that it can go ahead and
55 disregard this objection but must by judicial determination and so by formal order and reason of
judgment state why the objection is dismissed as failing to do so the Court/Tribunal member
never invoked jurisdiction and therefore the purported proceedings following are that so to say of
p11 9-3-2009
p12
a KANGAROO COURT and not of a COURT OF LAW. This as the Court/Tribunal has not
invoked jurisdiction to adjudicate failing to formally to dismiss the OBJECTION TO
JURISDICTION.
.
5 Mr Francis James Colosimo did state also;
QUOTE
As V.C.A.T. has no authority over these matters
END QUOTE.
.
10 From this it is abundantly clear that Mr Francis James Colosimo challenged the authority of the
Court to adjudicate and the transcript does considerable make clear that the Court/Tribunal
simply was going to ignore this all and proceed in disregard of what was legally required.
.
This ought to be of serious concern to anyone who pursues JUSTICE, as what is displayed is a
15 clear case of abuse of power and not at all what an unrepresented Defendant could expect from a
Court/Tribunal;
.
QUOTE
20 "A frequent consequence of self representation is that the court must assume the burden
advocacy."
END QUOTE
.
25 It also should be noted that before the 2005 amendment of the Building Regulations building
work in cost less then $5,000 did not require a permit. As such, it is understandable that even if a
permit was required (which is not conceded) then where lawyers cannot even compile a bill
appropriately and a court/Tribunal member cannot even conduct legal proceedings in a
competent manner then surely to so to say go off the deep end against a Defendant unknown
30 about any changes of Building regulations is a bit rich!
.
QUOTE
Version No. 063
Guardianship and Administration Act 1986
35 Act No. 58/1986
END QUOTE
And
QUOTE
Definitions
40 (1) In this Act—
"administration order" means—
(a) an order of the Tribunal appointing a person as an administrator of the
estate of a person under section 46; or
(b) a temporary order of the Tribunal under section 60;
45
END QUOTE
And
p12 9-3-2009
p13
QUOTE
Division 2—Appointment of Administrator
46. Appointment of administrator

(1) If the Tribunal is satisfied that—
5 (a) the person in respect of whom an application for an order appointing an
administrator is made—
(i) is a person with a disability; and
(ii) is unable to make reasonable judgments in respect of the matters
relating to all or any part of her or his estate by reason of the disability;
10 and
(iii) is in need of an administrator of her or his estate; and
(b) in the case of an application in respect of a person who does not reside in
Victoria, State Trustees has not been authorised under section 12 of the State
Trustee (State Owned Company) Act 1994 to collect, manage, sell or
15 otherwise dispose of or administer any property in Victoria which forms part
of the estate of the person in respect of whom the application is made—
the Tribunal may make an order appointing an administrator of that person's estate.
(2) In determining whether or not a person is in need of an administrator of her or his
estate, the Tribunal must consider whether the needs of the person in respect of
20 whom the application is made could be met by other means less restrictive of the
person's freedom of decision and action.
(3) The Tribunal cannot make an order under sub-section (1) unless it is satisfied that
the order would be in the best interests of the person in respect of whom the
application is made.
25 (4) Where the Tribunal makes an order appointing an administrator of a person's
estate, the order made must be that which is the least restrictive of that person's
freedom of decision and action as is possible in the circumstances.
END QUOTE
And
30 QUOTE
49.Exercise of power by administrator
(1) An administrator must act in the best interests of the represented person.
(2) Without limiting sub-section (1) an administrator acts in the best interests of the
represented person if the administrator acts as far as possible—
35 (a) in such a way as to encourage and assist the represented person to become
capable of administering the estate; and
(b) in consultation with the represented person, taking into account as far as
possible the wishes of the represented person.
50. Ancillary powers of administrator
40 (1) An administrator may on behalf of a represented person sign and do all such things
as are necessary to give effect to any power or duty vested in the administrator.
p13 9-3-2009
p14
(2) This Act does not confer on an administrator the power to execute a will in the
name of a represented person.
END QUOTE
And
5 QUOTE
60.Temporary order
(1) If the Tribunal is satisfied that—
(a) the person in respect of whom an application has been made under section
59—
10 (i) is a person with a disability; and
(ii) is unable to make reasonable judgments in respect of the matters
relating to all or any part of her or his estate by reason of the disability;
and
(iii) is in need of an administrator of her or his estate; and
15 (b) in the case of an application in respect of a person who does not reside in
Victoria, State Trustees has not been authorised under section 12 of the State
Trustees (State Owned Company) Act 1994 to collect, manage, sell or
otherwise dispose of or administer any property in Victoria which forms part
of the estate of the person in respect of whom the application is made—
20 the Tribunal may make an order appointing any person who may be appointed
under section 47(1) as an administrator of that person's estate.
(2) A temporary order—
(a) remains in effect for such period not exceeding 21 days as is specified in the
order; and
25 (b) may be renewed once for a further period not exceeding 21 days.
(3) The Tribunal must hold a hearing to determine whether an administrator should be
appointed under section 46 as soon as practicable after the making of a temporary
order but within 42 days of making that order.
* * * * *
30
_______________
PART 6—REHEARINGS AND REASSESSMENT OF ORDERS
35 Division 1—Rehearings
60A. Application for rehearing

(1) If the Tribunal makes an order in respect of an application under this Act (other
than an interim order or a temporary order), a party or a person entitled to notice of
the application may apply to the Tribunal for a rehearing of the application.
40 (2) A person entitled to notice of the application who was not, or did not become, a
party may apply for a rehearing only if the Tribunal gives leave.
p14 9-3-2009
p15
(3) Sub-section (2) does not apply to the Public Advocate.

(4) An application for a rehearing, or for leave to apply for a rehearing, must be made
within 28 days after the day of the order.
(5) If the Tribunal gives oral reasons for making an order and a party then requests
5 written reasons under section 117 of the Victorian Civil and Administrative
Tribunal Act 1998, the day on which the written reasons are given to the party is
deemed to be the day of the order for the purposes of sub-section (4).
(6) A person cannot apply for a rehearing of—
(a) an application the order in respect of which was made by the Tribunal
10 constituted by the President, whether with or without others; or
(b) an application under section 42B for the consent of the Tribunal to the
carrying out of a special procedure, being a procedure carried out for the
purposes of medical research; or
(c) an application under section 42I or 42N to the Tribunal relating to medical or
15 dental treatment (except an application in respect of which an order is made
under section 42N(6)(b) appointing a guardian generally); or
(d) an application for a rehearing or for leave to apply for a rehearing.
60B. Parties and notice
(1) A party to the proceeding on an application under this Act is a party to a rehearing
20 of the application under this Division, in addition to any other parties.
(2) A person who was entitled to notice of the making of an application under this Act
is entitled to notice of an application for a rehearing of the application under this
Division.
60C. Rehearing
25 (1) On an application under section 60A, the Tribunal must rehear the matter and, for
that purpose, the Tribunal has all the functions and powers that the Tribunal had
with respect to the matter at first instance.
(2) In determining a rehearing, the Tribunal may—
(a) affirm the order of the Tribunal at first instance; or
30 (b) vary the order of the Tribunal at first instance; or
(c) set aside the order of the Tribunal at first instance and make another order in
substitution for it.
60D. Effect of first instance order pending rehearing
(1) Subject to sub-section (2), the making of an application for a rehearing does not
35 affect the operation of any order to which the application relates or prevent the
taking of action to enforce the order.
(2) The Tribunal may make an order staying the operation of an order pending the
determination of the rehearing of the application to which the order relates.
Division 2—Reassessment of Orders
40 61. Reassessment
p15 9-3-2009
p16
(1) The Tribunal must conduct a reassessment of a guardianship order or an

administration order—
(a) within 12 months after making the order, unless the Tribunal orders
5 otherwise; and
(b) in any case, at least once within each 3 year period after making the order
unless the Tribunal orders otherwise.
(2) The Tribunal may at any time conduct a reassessment of any order made by it
under this Act.
10
(3) A reassessment under this section may be conducted—
(a) on the Tribunal's own initiative; or
(b) on the application any person.
(4) In addition to any other parties, the following are parties to a reassessment—
15 (a) the represented person; and
(b) the guardian or administrator (as the case may be).
(5) The amendment to sub-section (1)(b) made by section 25 of the Guardianship
and Administration (Amendment) Act 2002 applies to orders made before or
after that amendment commences.
20 62. Who is entitled to notice of a reassessment?
(1) Each of the following is entitled to notice of the making of an application for a
reassessment under section 61, notice of the hearing of the reassessment and notice
of any order made by the Tribunal in respect of the reassessment—
25 (a) the nearest relative available of the represented person in respect of whom the
application is made; and
(b) the primary carer (if any) of the represented person in respect of whom the
application is made; and
30 (c) in the case of a reassessment of a guardianship order—

(i) the Public Advocate; and
(ii) any administrator of the estate of the represented person; and
(d) in the case of a reassessment of an administration order, any guardian of the
represented person.
35 (2) If the Tribunal conducts a reassessment on its own initiative, the Tribunal must
give notice of the reassessment, at least 7 days before the proposed day of the
hearing, to the parties and to the persons specified in sub-section (1).
(2A) However, if the Tribunal conducts a reassessment on its own initiative and does
not propose to amend, vary or replace the order—
40 (a) instead of giving notice under sub-section (2), the Tribunal may give notice to
the parties and the persons specified in sub-section (1) that the party or person
p16 9-3-2009
p17
has 14 days from the date of the notice to request, in writing, a hearing of the
reassessment; and
(b) if—
(i) any of the parties or persons request a hearing within that time, the
5 Tribunal must give at least 7 days' notice of the hearing to each of the
parties and persons; or
(ii) none of the parties or persons request a hearing within that time, the
Tribunal is not required to hold a hearing of the reassessment.
(3) The Tribunal may, in a notice under sub-section (2) or (2A)(b)(i), advise that a
10 person to whom the notice is given (other than a party) is not required to attend the
hearing if that person does not have any matters to raise with the Tribunal in
relation to the reassessment.
(4) The amendments to this section made by section 26 of the Guardianship and
Administration (Amendment) Act 2002 only apply to applications for a
15 reassessment made after the amendments commence.
63. Order after reassessment
(1) Upon completing a reassessment the Tribunal may by order amend, vary, continue
or replace the order subject to any conditions or requirements it considers
necessary or revoke the order.
20
* * * * *
_______________
25 END QUOTE
.
There appears to be also questionable cost claims such as that during the 28-5-2007 EX PARTE
hearing somehow the lawyers are charging not just more then $990.00 for attending a hearing on
behalf of the council (Moorabool Shire Council) but also more then $940.00 as it appears to be
30 to “Supervise Kate Morris”, while on 25-5-2007 also charging (a partner) S205.00 Conferring
with Kate Morris on 27-5-07. As such pre-billing for an event still to come and then adding on
25-5-2007 for Reviewing Kate Morris draft submission another amount of $492.00. and that
isn’t even all of it as various other cost are included. Yet despite the $285.00 charge for 28-5-
2007 in addition to the aforementioned then there is also a $826.50 charge by a solicitor for
35 “Drafting and amending submissions for hearing”.
.
What this appears to come to is that on 24 May 2007 the solicitors is drafting and amending the
submissions and then the following day Kate Morris draft submission is reviewed by the
solicitors partner. Moment, who really drafted the darn submissions one may ask?
40 And why is a partner of a lawyer having to supervise Kate Morris, if she was the instructor of
the lawyer?. It all seems to come across as gobbly gook and it seems that it as was more like
some goldmine against Mr Francis James Colosimo regardless he does not possess any
goldmine!
.
p17 9-3-2009
p18
More over despite Mr Francis James Colosimo having made clear that Moorabool Shire
Council was not permitted to enter his property, it seems that nevertheless he gets billed for
$142.00 for Coral Young to consult lawyers about her attendance.
As such, where Moorabool Shire Council pursued to act unlawfully to seek to gain access to the
5 property of Mr Francis James Colosimo and even employed police to attend as intimidation
upon Mr Francis James Colosimo in the end not Moorabool Shire Council but Mr Francis
James Colosimo having done no wrong ends up being billed for this kind of nonsense.
.
10 Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention),
ABOVE Sir JOHN FORREST (Western Australia).-
Because, as has been said before, it is [start page 357] necessary not only that the
15 beyond the possibility of suspicion;
END QUOTE
.
It hardly could be held that the Court/Tribunal acted beyond the possibility of suspicion. And this
is the Court/Tribunal that made the Guardianship Orders?
20 .
Where then as set out below a VCAT (Tribunal) member disregarded Mr Francis James
Colosimos objection and made known being bound to enforce the Planning & Environment Act
then clearly the member of VCAT has demonstrated a bias detrimental against Mr Francis
James Colosimo. No Court/Tribunal is forced to enforce legislation merely because it exist
25 rather that a Court/Tribunal is compelled to provide JUSTICE, and if this includes application of
certain legislative provisions then so be it but if this means to nullify certain legislative
provisions or to disregard purported legislative provisions which are ULTRA VIRES then so be
it. If it was that the Courts where there merely, so to say, rubberstamp legislative provisions,
regardless of its constitutional or other validity, then why have Courts/Tribunals in the first
30 place? The right of any Defendant is to be provided with a competent judicial determination on
the basis of the material before the Court/Tribunal that excludes ASSUMPTIONS based on
LEGAL FICTION! The issue of FEE SIMPLE upon which Mr Francis James Colosimo
relies cannot be appropriately CONSIDERED without the relevant constitutional background
details and how they apply.
35 .
Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
QUOTE
“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
40 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..
45 Whatever else may be said with respect to previous decisions - and it is necessary here to
consider the principals upon which a court should act in particular cases - so much at least
emerges as is undoubtedly beyond challenge, that where a former decision is clearly
wrong, and there are no circumstances countervailing the primary duty of giving effect to
the law as the court finds it, the real opinion of the court should be expressed.”
50
p18 9-3-2009
p19
"In my opinion, where the prior decision is manifestly wrong, then, irrespective of the
consequences, it is the paramount and sworn duty of this court to declare the law truly...."
END QUOTE
.
5 Therefore is the proceedings were from onset defective then it should be declared so and any
orders on record be deemed ULTRA VIRES and be declared to be so.
As set out below (in the electronic version) where the proceedings on 28 may 2007 were
technically EX PARTE and Mr Francis James Colosimo never was given any appropriate
opportunity as to place his case before the Court/Tribunal then instead of abusing and misusing
10 the provisions of the Guardianship and Administrative Act 1986 to pronounce orders against
Mr Francis James Colosimo it should have as a matter of policy and requirement ensured that
JUSTICE prevails! As such, that Mr Francis James Colosimo was given an appropriate
opportunity to presents his case. (As set out further in the electronic version of this document)
.
15 Often in history those who were deemed to be “crazy” (mentally deficient, etc) because of what
they stated in today’s modern times were if anything deemed intelligent just that those living in
the same society at the time didn’t understand this then.
Jules Verne is a clear example of what in his time unimaginable to be realistic, yet in today’s
society if we had to declare everyone mentally incompetent because of saying that you cannot fly
20 to the moon or have submarines, etc, then about the entire world population would be declared
so. The same is with the legal and constitutional matters upon which Mr Francis James
Colosimo relies upon. We find for example judges of the High Court of Australia having upheld
the Cross Vesting Act as being valid in law, even to the extend that Mr G. H. Schorel (Mr G.
H. Schorel-Hlavka) ended up being imprisoned for refusing to accept this, and yet years later in
25 HCA 27 of 1999 the High Court of Australia then declared that this actually was not a valid
legislation after all as it was unconstitutional. Likewise this has occurred in many other incidents.
As such, when any person is to be assessed one has to ask what competence have those who are
seeking to make the assessment upon Mr Francis James Colosimo? Are they themselves living
in some fictional world that prevents them to understand reality?
30 The difference with those living at the time of Jules Verne and Mr Francis James Colosimo is
that Jules Verne was making claims about something that in that time was not actually happening
and so no one was able to check out if his claims were practical or even possible. With Mr
Francis James Colosimos case it is totally different. Here we have reality (facts) where the
Court/Tribunal can actually consider matters.
35 .
It is of not fault of Mr Francis James Colosimo if a Court/Tribunal happens to live in a land of
fiction and cannot manage to understand let alone comprehend legal reality. However it is an
issue for Mr Francis James Colosimo that anyone who attempts to interfere with his
constitutional and other legal rights better makes sure to do so in an appropriate lawful manner.
40 Therefore, Mr Francis James Colosimo is not the least concerned about the amount of work
that any Court/Tribunal may have to incur to consider matters because unless and until this
Court/Tribunal has an appropriate understanding/perception of what is actually constitutional and
otherwise legally applicable it lacks any competence to make a judicial decision one way or
another. More over, as Mr Francis James Colosimo has challenged the jurisdiction of the
45 court/Tribunal from onset it is not relevant if there were any subsequent orders made from the
original decision disregarding the OBJECTIONS TO JURISDICTION, because not a single
order/direction is valid in law unless and until the Court/Tribunal can invoke jurisdiction, and
this Mr Francis James Colosimo has opposed from onset not to exist.
.
p19 9-3-2009
p20
It is not for any court/Tribunal to “ASSUME” jurisdiction and neither is it if legislation may
state that a Court/Tribunal can exercise certain powers as the issue is if a Court/Tribunal in this
matter against Mr Francis James Colosimo can do so. Therefore, what is required is for the
Court/Tribunal to CONSIDER (IN LEGAL TERMS) all and any material Mr Francis James
5 Colosimo has placed before the Court/Tribunal and then hand down a formal judicial
determination on each and every matter raised by Mr Francis James Colosimo before this
Court/Tribunal can invoke jurisdiction.
Because of the 19 July 2006 County Court of Victoria judicial decision in the matters of the
Crown verses Mr G. H. Schorel-Hlavka, where the county Court of Victoria upheld both cases
10 UNCHALLENGED by the crown (Both State and Federal) then the obstacle this Court/Tribunal
has is that Mr Francis James Colosimo relying upon this 19 July 2006 judicial decision has by
this a DIRECT and COLLATERAL ESTOPPEL that prevents this Court/Tribunal to re-
litigate the same issues and as such is bound by the numerous constitutional issues that were
raised by Mr G. H. Schorel-Hlavka in the 5-year litigation and the court upheld without any
15 reservation, upon which Mr Francis James Colosimo relies upon.
.
At the time of the proceedings before the County Court of Victoria on 19 July 2006 , Mr G. H.
Schorel-Hlavka had then also as evidence a copy of his 6-7-2006 published book;
.
20 INSPECTOR-RIKATI® & What is the -Australian way of life- really?
A book on CD on Australians political, religious & other rights
ISBN 0-9751760-2-1 (prior to 1-1-2007) ISBN 978-0-9751760-2-3
.
This book contained all material that was at the time before the court. As such, it can be checked
25 what the constitutional and other legal issues were the Court upheld at the time and upon which
Mr Francis James Colosimo also relies.
.
Below is a list of some, but not all, of the issues which Mr Francis James Colosimo raises and
supported by extensive set out.
30 The problem this Court/Tribunal has is that it cannot merely ASSUME that somehow Mr
Francis James Colosimo is in need of help in regard of any alleged mental issue if in fact the
Court/Tribunal itself lacks the mental capacity to understand/comprehend what the difference is
between LEGAL FICTION and LEGAL REALITY.
.
35 Just to use an example. As the County Court of Victoria on 19 July 2006 upheld the submissions
of Mr G. H. Schorel-Hlavka it by this also upheld that “australian citizenship” is not a
nationality at all but in fact is a legal status as to a persons political legal and rights being a
citizen of a State and by this by way of Section 41 of the Commonwealth of Australia
Constitution Act 1900 (UK) it provides for franchise rights in the political landscape as if one is
40 a State citizen then one is AUTOMATICALLY also a “Australian citizen”.
Anyone who therefore is in the belief that “Australia citizenship” is some NATIONALITY is
living in a delusion of a FICTIONAL LEGAL WORLD nothing to do with reality.
.
Again, the Courts upheld this on 19 July 2006 and yet unlikely this Court/Tribunal member
45 would have been aware of this and still be going around in the delusion that “Australian
Citizenship” is some “NATIONALITY”. How then can a person adjudicate as to Mr Francis
James Colosimos conduct if the Court/Tribunal member himself/herself lacks the competence to
even comprehend his/her own legal status?
.
p20 9-3-2009
p21
Below (That is in the electronic complete format of this ADDRESS TO THE

COURT/TRIBUNAL) Mr Francis James Colosimo has set out extensively matters, hence the
volume of the total document to do so in a limited manner.
.
5 If a Court/Tribunal cannot even manage to understand/comprehend the constitutional meaning of
“citizenship” then how on earth could any court/Tribunal then make some judicial assessment of
the competence of Mr Francis James Colosimo? This so in particular where Mr Francis James
Colosimo relies upon a judicial decision of the Country Court of Victoria of 19 July 2006
involving Mr G. H. Schorel-Hlavka?
10 .
If the fact that Mr Francis James Colosimo relies upon relevant judicial decisions of a Court,
such as the County Court of Victoria on 19 July 2006, somehow was to make Mr Francis James
Colosimo mentally incompetent then would this not mean that every judicial officer who relies
upon past judicial decisions likewise were to be mentally incompetent?
15 .
Objective-subjective
QUOTE
Rationality And Judicial Review Of Administrative Action
GEOFF AIRO-FARULLA[*]
20
LEGALITY
A Objective or Subjective Rationality?

The most important issue requiring clarification is whether illegality is limited to what
might be called ‘objective irrationality’, or whether it extends to what might be called
25 ‘subjective irrationality’. Just as there is a distinction between the rationality and the merits
of a decision, so too is there a distinction between a decision itself and the reasons for that
decision. Not every decision which can be rationally justified is rationally justified by the
decision-maker’s actual reasons for making it. A decision that is objectively rational may
have been made for irrational reasons. The question is: does legality require only that the
30 decision is able to be rationally justified (objective rationality), or does it require that it be
rationally justified by the decision-maker’s actual reasons (subjective rationality)? In
practice, of course, an objective test is easier to satisfy than a subjective test, because very
often good reasons could be given for a decision, even though the decision-maker actually
had bad reasons.
35 The traditional formulation of unreasonableness — that a decision must not be so
unreasonable that no reasonable authority could ever have come to it[102] — seems to be
an objective test. On the other hand, the formulation can be read to mean ‘so unreasonable
that no reasonable decision maker could have made it for those reasons’, and so incorporate
a subjective test.
40 Indeed, some aspects of rationality review, such as the doctrine of relevant and irrelevant
considerations, are clearly directed to subjective rationality. The legality–merits distinction
provides no guidance on which standard should be applied, because both standards respect
the difference between the rationality and the merits of a decision. The issue of whether the
rationality standard involves an objective or subjective test is most acute in relation to
45 judicial review of factual questions.
END QUOTE
.
p21 9-3-2009
p22
As such Mr Francis James Colosimo relying upon his constitutional and other legal rights
cannot be deemed to have been unreasonable, that that Moorabool Shire Council in its conduct
to ignore this in effect conducted itself in a manner of STALKING, where it no longer could be
deemed to act in lawful capacity to enforce legal matters but rather it abused and misused its
5 position such as to refuse to respond to relevant correspondence so as to seemingly create a legal
basis for its litigation conduct against Mr Francis James Colosimo.
.
If in the context o circumstances then prevailing it can be established that Moorabool Shire
Council, failed to act appropriately as to CONSIDER and respond yo Mr Francis James
10 Colosimo upon Mr Francis James Colosimos correspondence then its subsequent action of
litigation must be viewed as not a legitimate exercise or possible legitimate exercise of its duties
and/or powers but one that may have been avoidable pending the response to the communication
of the Respondent and the reply and as such then it must be deemed that its failure of Moorabool
Shire Council to respond cause a LEGAL FRUSTRATION to Mr Francis James Colosimo
15 and then where Moorabool Shire Council was the culprit to cause this FRUSTRATION (IN
LAW) then it has so to say no position to go to court as it has “dirty hands” as it by its own
deeds or omission of its duties to act reasonably caused the escalation of problems.
.
The onus is upon any council to ensure that when it is dealing with residents it acts in a
20 reasonable manner and not merely seek to waste ratepayers monies in legal battles where none
might be justified.
.
The evidence placed previously before the Court/Tribunal was one that there was a refusal by
Moorabool Shire Council to respond upon the correspondence of Mr Francis James Colosimo
25 This in itself must be taken that therefore Moorabool Shire Council acted inappropriately and
failed to conduct itself in a reasonable manner and by this its subsequent conduct became a
conduct of STALKING upon Mr Francis James Colosimo as to cause needles harm to Mr
Francis James Colosimo. The issue of STALKING is set out (below) in the document.
.
30 Again, the fact that the Guardianship and Administration Act 1986 may provide jurisdiction to
a Court/Tribunal to deal with certain matters is of no legal consequences to Mr Francis James
Colosimo as what is required is to show that the legislative provisions first of all are valid in law
and also that it is valid to be applied to Mr Francis James Colosimo. After all, one could drag a
serving ambassador before a Court/tribunal only to find that no matter what the legislation may
35 provide for it cannot apply to a serving ambassador having diplomatic immunity. As such, not
only is there a need to prove the legislation itself is valid in law but also that even if this is
proven (and not just assumed) then the task still is ahead to prove that this can be applied to Mr
.
40 Hansard 1-3-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-But suppose they go beyond their power?
Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to

45 enforce improperly any law the citizen has his right.
END QUOTE
And;
p22 9-3-2009
p23
QUOTE
Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
5 END QUOTE
.
To give another example.
Everyone seems to accept that voting in federal elections is compulsory and that there is a
Commonwealth Electoral Act 1918 Section 245 that makes voting compulsory. Yet, Mr G. H.
10 Schorel-Hlavka submitted to the Court that it was irrelevant what the legislation provided for
because the legislation was ULTRA VIRES as it was unconstitutional in that the Framers of the
constitution ma clear to oppose any legislative powers for the commonwealth to compel any
person to enrol (register) and/or to vote. Now, it should be clear that on 19 July 2006 the County
Court of Victoria upheld this! As such judicially it was decided that indeed Section 245 of the
15 Commonwealth Electoral Act 1918 is unconstitutional. Yet, no doubt any member of the
Court./Tribunal still goes along voting in elections because of living in a FICTIONAL
WORLD that voting is compulsory, while G. H. Schorel-Hlavka does not vote in elections and
by way of DIRECT and COLLATERAL ESTOPPEL he no longer is pursued for this.
Can it be held that the Constitution was then created by the Framers of the constitution for the
20 federation just to accommodate Mr G. H. Schorel-Hlavka, who at that time was not even alive?
Or, can it be held that it simply was not a personal issue regarding Mr G. H. Schorel-Hlavka
but that the constitution applies to all persons in the same manner, not just Mr G. H. Schorel-
Hlavka?
.
25 Then why would a Court/Tribunal member still go and vote or being fined for not doing so and
go along with this? Is this not showing that the Court/Tribunal member is living in a
FICTIONAL WORLD and not competent to understand/comprehend his/her own constitutional
and other legal rights?
Is then this Court/Tribunal member going to preside over what the competence of Mr Francis
30 James Colosimo is?
.
If a court/Tribunal member cannot even understand/comprehend what “CITIZENSHIP” is in
constitutional terms and what “NATIONALITY” is then how on earth can Mr Francis James
Colosimo expect such a Court/Tribunal member to understand/comprehend the complex issues
35 surrounding FEE SIMPLE?
.
If a Court/Tribunal cannot even understand/comprehend that the 28 May 2007 VCAT decision
was without invoking jurisdiction and therefore was without legal force (ULTRA VIRES) then
how can Mr Francis James Colosimo get any real consideration upon legal facts rather then
40 LEGAL REALITY?
.
Getting back to Mr G. H. Schorel-Hlavka and the 19 July 2006 judicial decision by the County
Court of Victoria, and keeping in mind that it included a Section 78B NOTICE OF
CONSTITUTIONAL MATTERS, served in 2002 upon all Attorney-Generals and despite this
45 none did CHALLENGE before the court the submissions of Mr G. H. Schorel-Hlavka that not
a single politician in the State of Victoria was lawfully appointed, and so neither any lawyer,
because of the “CITIZENSHIP” issue and also that the Courts being part of a corporate
structure could not adjudicate, etc, etc, then clearly unless and until, if ever at all, this
Court/Tribunal can have this 19 July 2006 judicial determination set aside/overruled it is bound
50 by that decision and as such cannot act against Mr Francis James Colosimo whatsoever.
p23 9-3-2009
p24
.
It should be made clear that on 19 July 2006 the Commonwealth of Australia consented to the
County Court of Victoria to adjudicate in favour of Mr G. H. Schorel-Hlavka, and as such in
full knowledge that this would create a legal binding decision upon the Crown. It also means
5 that on that basis also the 28 May 2007 purported decision by VCAT was ULTRA VIRES!
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
QUOTE
10 For constitutional purposes, they are a nullity. No doctrine of res judicata or issue
made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
15 END QUOTE
.
Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
QUOTE
"Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
20 Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess of
power is not and never has been a law at all. Anybody in the country is entitled to
disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
such a decision is not an element, which produces invalidity in any law. The law is not
valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is
25 invalid ab initio."
END QUOTE
(See also re Residual Assco Group v Spalvins & Ors A5/2000 (11 May 2000) High Court of
Australia Transcripts)
.
30 The following applies as much to Federal laws of the Commonwealth of Australia as it does to
federal laws in the USA; http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts.
35 Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys
the validity of everything into which it enters, and that it vitiates the most solemn contracts,
documents, and even judgments."
END QUOTE
And
40 QUOTE
The general misconception is that any statute passed by legislators bearing the appearance
of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,
and any statute, to be valid, must be in agreement. It is impossible for both the Constitution
and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
45 The general rule is that an unconstitutional statute, though having the form and name
of law, is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date
of the decision so branding it. An unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Such a statute leaves the question that it
50 purports to settle just as it would be had the statute not been enacted.
p24 9-3-2009
p25
Since an unconstitutional law is void, the general principles follow that it imposes no
duties, confers no rights, creates no office, bestows no power or authority on anyone,
affords no protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot
5 operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the
fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
10 END QUOTE
.
Therefore, before any Court/Tribunal contemplate to deal with matters before the Court it better
gets a grip as to the relevant constitutional and other legal matters and if in fact, as Mr Francis
James Colosimo maintains VCAT in the first place never invoked jurisdiction on 28-5-2008
15 then all and any subsequent decision are likewise NULL AND VOID. As such, there is no
jurisdiction to do anything!
.
This document has been provided with the assistance of Mr G. H. Schorel-Hlavka, who in 1985
created/designed the document ADDRESS TO THE COURT/VCAT, which has since been
20 used in all levels of Courts, including VCAT, Magistrates Courts, County Courts, District
Courts, Supreme Courts, Family Courts and the High Court of Australia in both civil and
criminal cases.
In December 2003 the following book was published by him as Author;
.
25 INSPECTOR-RIKATI® & ADDRESS TO THE COURT
A book on CD, making litigation a more level playing field

ISBN 0-9580569-7-8 (After 1-1-2007; ISBN 978-0-9580569-7-7
.
Mr G. H. Schorel-Hlavka is Author of books in the INSPECTOR-RIKATI® series on certain
30 constitutional and other legal issues. The ADDRESS TO THE COURT/VCAT is not intended
to present evidence but rather to canvas legal issues in a well researched manner so as also to
seek to avoid existing misconceptions to continue that may have arisen from past judicial
decisions.
It must be stated that Mr G. H. Schorel-Hlavka does not charge for his assistance of individuals
35 and acts as an Attorney and/or consultant/Expert witness/etc, not being a lawyer, as he has done
in numerous other cases both before the court at the BAR table or in preparation of documents,
albeit reserves the right to submit cost where it refers to an opposing party and/or when acting as
a commercial arrangement for a business.
Because Mr G. H. Schorel-Hlavka succeeded on 19 July 2006 in the County Court of Victoria
40 after a 5-year long litigation battle involving the Crown on all constitutional issues he raised,
UNCHALLENGED, his ability and expertise in that regard is valuable for this case,.
.
This document deals extensively as to issues such as but not limited to (and not stated in
any order of importance);
45
 OBJECTION TO JURISDICTION
 Tribunal/court cannot proceed without appropriate consideration of constitutional
issues
 NO CASE TO ANSWER
p25 9-3-2009
p26
 CONTEMPT OF COURT/TRIBUNAL
 The issue of CONTEMPT IN THE FACE OF THE COURT/TRIBUNAL by
lawyer Kate Morris (for Moorabool Shire Council) on 28-5-2007 in allegedly
concealing relevant details from the Court/Tribunal. (See below for more extensive
5 set out)
 Frivolous/vexatious and abuse of legal processes by Moorabool Shire Council
 CITIZENSHIP & how it affect the lawyers (so the judiciary, politicians, etc)
 Moorabool Shire Council not a constitutional recognised entity, and no legal
standing
10  FRUSTRATION (IN LAW)
 Refusal by Court/Tribunal member to follow required procedures as to formally
deal with an OBJECTION TO JURISDICTION and by this displayed either a
lack of competence in conducting FAIR and PROPER hearings or a disregard to
the rights of Mr Francis James Colosimo.
15  Failure of the lawyers acting for Moorabool Shire Council, as OFFICERS OF
THE COURT, to remind the Court/Tribunal member that it is legally bound to
follow the appropriate legal procedures as to formally hear and determine the
OBJECTION TO JURISDICTION as failure to do so the court/Tribunal cannot
proceed with determining any matters and doing so nevertheless will cause any orders
20 to be without legal force.
 Decisions/orders made without jurisdiction are ULTRA VIRES (without legal force)
 Mr Francis James Colosimos position is that Habison did not act within judicial
capacity to make statements against Mr Francis James Colosimo that he could face
imprisonment because Habison never invoked jurisdiction and as such acted without
25 protection of judicial office.
 No contempt can exist to act lawful within constitutional rights.
 Statehood bound by principles embedded in the federal Constitution.
 State Parliament lacks legislative power to amend its own State constitution
 Denial of a FAIR and PROPER TRAIL
30  Failure of proper CONSIDERATION of issues
 Insufficient CONSIDERATION
 CONSIDERING irrelevant details/information
 Tribunal/court failure to provide FAIR AND PROPER HEARINGS
 Denial of NATURAL JUSTICE
35  Failure of compliance by Moorabool Shire Council’s lawyers to appropriately
institute proceedings
 Purported FINES without conviction is unlawful and invalidate any subsequent
conviction.
 DIRECT & COLLATERAL ESTOPPEL applicable by 19 July 2006 County Court
40 of Victoria decision regarding a range of constitutional submissions that were then
before the court.
 State of Queensland’s purported amendments of its State constitution & the High
Court of Australia decision re FEE SIMPLE.
 The meaning and application of FEE SIMPLE must be understood and applied as
45 was applicable at the time of federation, as embedded in the Commonwealth of
Australia Constitution Act 1900 (UK) and any ill conceived Queensland and/or other
judicial decisions and legislation cannot be applied to the FEE SIMPLE rights of Mr
Francis James Colosimo as to undermine his constitutional and other legal rights.
p26 9-3-2009
p27
 VICTORIAN Parliament to purportedly allowing Aboriginals (in breach of

constitutional provisions) to manage crown law without needing any permits for
anything they do! (consider discrimination in reverse!) it means that Aboriginals will
be allowed to do whatever without having to purchase or otherwise FEE SIMPLE
5 properties, whereas an owner of FEE SIMPLE purportedly is restricted in usage of
property actually held in FEE SIMPLE. As set out below also.
 BIAS
 IMPLIED BIAS
 Cost issues
10  Fraudulent conduct?
 Entitlement to disregard unconstitutional tribunal/court orders
 No criminal responsibility to pursue ones property rights in good belief
 Aggrieved
 No or insufficient public interest in the existence of a shed to warrant litigation
15  STALKING (upon Mr Francis James Colosimo)
 Onus of criminal standards of proof “beyond reasonable doubt” for prosecutor as to
CONTEMPT OF COURT while civil standards of proof upon Mr Francis James
Colosimo.
 EX PARTE 28-5-2008 decision cannot stand, and without legal
20 justification/jurisdiction
 The fundamental rights and liberties the Framers of the constitution embedded in the
Commonwealth of Australia Constitution Act 1900 (UK) must be understood to be
as was at the time of federation including the Mana Charta (Magna Carta) principles
and not as to the way State and/or municipal Councils and/or others may now deem
25 permissible.
 Failure to consider the DEFENCE (as prepared by Mr Errol Higgins for Mr Francis
James Colosimo)
 The High Court of Australia proved that even with the purported Cross Vesting Act
that if legislation is ULTRA VIRES then the fact that it was given royal assent is of
30 no importance as this is granted upon certification by the Attorney-General that the
legislation is within legislative powers! Therefore any State constitution amendment
that was proceeded with in disregard of a State referendum having approved such an
amendment for all purposes and intend is ULTRA VIRES.
 Neither Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court or v.
35 State of Queensland [2004] QSC 434 (19 November 2004) where appropriately
considered upon the unique constitutional set up in the Commonwealth of Australia
different then any other legal jurisdiction!
 Queensland 1922 purported Abolition of Upper House is and remains to be UNTRA
VIRES and as such no law purportedly enacted since obtained the required Upper
40 House approval.
 Victorian’s purported 1975 amendment of its State constitution in like manner was
ULTRA VIRES (as that of Queensland since 1921) and therefore so all and any
legislation since then.
 The true meaning and application of “peace, order and good government”
45  The true application of the Magna Carta (Magna Charta) and other old enactments.
 High Court of Australia rulings (re Magna Carta) in conflict with Victoria’s Imperial
Act Application Act 1980 provisions.
 Etc, etc.
.
p27 9-3-2009
p28
It is relevant that at this time there is a reference to the content of the document prepared by Mr
Errol Higgins, Law Lecturer, LLB, LLM, BA, BA(HON), MA(Hon) albeit nothing must be
construed that the document and the further content of this ADDRESS TO THE
COURT/VCAT are one and the same document as the document prepared by Mr Errol Higgins
5 was prepared as Mr Errol Higgins deemed fit and proper at the time he prepared it as to what
was then known to him to be the circumstances and any conflict that now may be shown by the
ADDRESS TO THE COURT/VCAT therefore is to be considered on light of what is further
set out in this document.
.
10 While this document deals extensively with the Queensland FEE SIMPLE issue, it should
however be understood that this is because other States rely upon those decisions also and further
in Victoria we have currently a pipeline being drawn through farmers properties as if FEE
SIMPLE has no meaning. Therefore, what is needed is to get the High Court of Australia and
other Courts/Tribunals to understand that regardless what may have been previously decided in
15 numerous cases unless it considered the relevant details/information no case is appropriately
decided. Therefore, the Colomiso case seeks that matters finally are considered in an appropriate
manner and not merely courts/tribunals rely upon a presumption of rights where none in fact
exist. Regardless what the High Court of Australia previously may have ruled as to FEE
SIMPLE, Magna Carta, etc, those decisions cannot be maintained merely because they are on
20 record because the duty of a Court/Tribunal is to adjudicate upon the evidence before it and not
merely copy whatever, no matter how wrongly, previously may have been decided.
.
Note;
It is Mr Francis James Colosimos view that the statement (reproduced below) has an
25 unintended meaning contrary to what was intended;
QUOTE
9. That it is argued that by-law in this matter is beyond the powers of the Shire Council
because it does comply with either statute or common law.
END QUOTE
30 .
SHOULD READ
because it doesn’t comply with either statute or common law.
.
35 By this altering “does” to “doesn’t”. This, as otherwise the argument does not seem to make
sense and as such this is a typing error.
The quotation below has included the many typing errors that were shown in the original
document as to avoid it not being accepted as a quotation.
.
40 The statement also goes on about “peace, order and good government”, etc and as to Magna
Carta rights but in view of the High Court of Australia past decisions they basically are, so to
say, falling on deaf ears unless one does as Mr G. H. Schorel-Hlavka has done (and so set out
extensively below) to show why the High Court of Australia was so wrong in the ill-conceived
judgments.
45 .
While the document of Mr Errol Higgins does set out seeking more time to set out all matters,
nevertheless the presentation is floored not because of what he stated but because Mr Errol
Higgins seemed to rely upon there being an open minded consideration by those to adjudicate
and not that they are limited to a so to say tunnel vision. It is for this also why Mr G. H.
50 Schorel-Hlavka comprehensively set out certain matters as to avoid having such problem./
p28 9-3-2009
p29
.
QUOTE defence and counter claim previously refused for acceptance by Errol Higgins
IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
AT MELBOURNE
5 PLANNING AND ENVIRONMENT LIST
Proceedings No. V2/2007
BETWEEN
MOORABOOL SHIRE COUNCIL
Applicant
10 And
FRANCES JAMES COLOSIMO
Respondent
DEFENCE AND COUNTERCLAIM ON BEHALF OF FRANCES JAMES COLOSIMO

15 (Respondent)
DEFENCE
1. No permit was required for the shed erected on his premises because common law makes
20 it quite clear that a person may use their land in a fair and reasonable manner which does
not impinge or encroach on the rights of neighbours.
2.As to the catchment area, this does not prohibit such a shed in the area concerned. There
is no legislation either at Victoria or commonwealth level which applies. Local authorities
25 in Victoria have interpreted statutes and by-laws in such a way to provide them with more
control over ratepayers, this has happened here.
3.It has been suggested that the respondent was in contempt of the tribunal. This is an issue
which ought to be decided by a higher jurisdiction. The respondent has not been given that
30 opportunity.
4.The respondent has not yet been given the opportunity of presenting full and detailed
evidence of his case. This would involve a number of witnesses, including the National
Farmers Federation of Australia.
35
5.The respondent is the owner of fee simple land in Victoria. The use of that land is being
restricted, indeed inhibited by the restrictive actions of the Council. The title deeds of the
property of the respondent on inspection,show no right , reservation,restriction or notation
that shows the Moorabool Shire Council has any rights,interest or claim in the land of the
40 respondent.
6.that the decision of the High Court of Australia in New South Wales & Ors v The
Commonwealth [1975] 135 C L R @368 as stated by Barwick C J and all other members
of the Court bind both the State of Victoria, tribunals and all council,
45
7.That the Victorian legislation and resulting by-laws in relation to land rights are ultra
vires long-held principles of land law which go back centuries in relation to the
fundamental principles of common law relating to land rights. In Re Wakim ;ex parte
McNally [1999] HCA 27 S74/1998 @ p2.”Gleeson C J says; “The parliaments of the
p29 9-3-2009
p30
commonwealth ,the States and Territories cannot , by co-operation , amend the

constitution”.
8.The respondent seeks a finding of Certiorari, that this tribunal has no jurisdiction to deal
5 with this matter. He also suggest that mandamus applies because the local authority has
exceeded its powers both under statute and common law. This particularly applies to the
actions of the administrators and employees of the claimant.
10 because it does comply with either statute or common law. The order made by the Council
in any event exceeds the limits of the by-law. The by-law is inconsistent with general or
common law, and is therefore invalid.
10.The notice given by the council to the respondent is invalid as being beyond the
15 council’s law power, and the notice is not authorised. The by-law does not prescribe the
limits of liberty given to land owners. In addition the respondent suggest that the Council’s
by-law is expropriatory in character and effect and consequently invalid. The Council
cannot under its regulations act against the respondent by presumptively thinking it has the
power to do so. The council has made every endeavour to put pressure upon the respondent
20 to comply with its invalid directions. In addition the respondent argues there are limits on
the power of a local authority to make or enact by-laws. Here the particular enactment goes
beyond what can be regarded as a law directed to the welfare and good government of the
inhabitants of this shire.
The by-law must be reasonable, it is not so here, it is unreasonable and breeches the clear
25 rule that the by-law must be for the welfare and good government of its citizens.
11.The common law remains part of the law of Victoria, and is still applied and recognised
by the courts of the state. Thus individual land rights remain part of this law. In addition the
Magna Carta (1215) and the Bill of rights ( 1688) are statuses still applicable in Australia
30 which owners of property including land may rely upon.
12.Under the Tenures Abolition Act 16660 section 4 it states “land held of the crown in fee
simple may be assured in fee simple without licence and without fine and the person taking
under the assurance shall hold the land of the Crown in the same manner as the land was
35 held before the assurance took effect.”That statute still applies in Australia, hence the
respondent is entitled to its protection. A fee simple title is a free and common socage
subject only to the Crown. Not to a government created by statue (i.e. Victoria).
13.State governments must comply with “peace, welfare and good government”, they
40 cannot extinguish common law rights on which the respondent relies. This is confirmed by
both the Judiciary Act 1903 (Cth) and Section 51 and 52 of the Commonwealth of Australia
Constitution act , “peace, welfare and good government” do not find a place in connection
with the definition and delegation of limited powers which do not include matters relating
to the daily protection of life and property, or the enforcement of private rights and
45 obligations in general. Hence the respondent cannot be forced by the council to comply
with their directions.
14.The council is a subordinate law-making body, whose laws are as by-laws valid only
within the authority conferred upon it by the australian constitution. In this case the council
50 has gone beyond the limits of such authority. Here the council in its treatment of the
p30 9-3-2009
p31
respondent has erred in constitutional law and in fact and is in breach of the Judiciary Act
1903 (Cth).
15.In this case the council has acted ultra-vires in its treatment of the respondent. There are
5 inconsistencies which result in it being in breach of the Commonwealth of Australia
Constitution Act. In addition the grant of a fee simple to the respondent means both in
common law and equity the council are bond by the doctrine of promissory estoppel in the
way they have treated the respondent. The Acts Interpretation Act 1901 (Cth) which relates
to land and estates would apply.
10
16.The respondent relies upon the Commonwealth of Australia Constitution Act section 75,
109, 108 and 51, which means the decision of the council is defective in law and fact.
17.This is a by-law which is unjust and can accordingly be declared void. The tribunal has
15 the power and jurisdiction to do so. In particular property vested into private ownership as a
fee simple title, which the respondent has, cannot have his rights taken away by the by-laws
of the local authority, without the authority of first state law, and finally by commonwealth
law. The use of the respondent’s land is upheld by sections 17 and 21 of the Natural
Heritage Trust of Australia Act 1997 (Cth). In other words the respondent has an
20 indefeasible interest as a registered proprietor of an estate in fee simple. He or she is
entitled to use the land as they wish, ior certainly as it has been previously used, subject
only to any current legis;ative restrictions, unless new legislative provisions changes the
situation, but that again is subject to the common law which can apply to proposed or future
possible legislation. A freeholder is entitled to engage in simular activities on the land as
25 the previous owner.
18.there are clearly legal limits on government and local authorities ability to acquire land
and regulate land use, and the governments are already required to compensate landholders
in certain circumstances, particularly if the action of the government or local authority has
30 caused their actions to devalue or cause harm to the profitability of the land.
COUNTERCLAIM
1.That the respondent confirms paragraphs 1-17 of the statement of defence.

35
2. That the council has breached the International Covenant on Civil and Political Rights,
as well as the Human Rights and Equal Opportunity Commission Act 1986 No 125 as
amended.
40 3. That the council have a duty of care to the respondent. That duty of care has been
breached, resulting in damage to the respondent. There is a direct relationship between the
breach (caused by the council) and the damage suffered by the respondent.
4. Accordingly the respondent seeks the following;

45 (a) And order squashing any order made against the respondent to date.
(b) The sum of $250,000.00 by way of damages suffered by the respondent to his
livelihood and the prospects as a direct result of the actions of the council.
(c) Such further or other orders as this tribunal may deem fit.
p31 9-3-2009
p32
This submission covers only extremely minor areas in this dispute. There are constitutional
and legal matters and decisions going back centuries which would support Mr Francis
James Colosimo’s situation. He accordingly seeks an adjournment so that full and detailed
argument can be presented to the court. At lease one month would be required for this. It is
5 assumed that the tribunal in its wisdom would be willing to do this.
Errol Higgins,
Law lecturer,
LLB, LLM, BA(Hon), MA(Hon.)
10 I have been asked by the respondent to act for him as “good friend”
-see the enclosed authority
END QUOTE defence and counter claim previously refused for acceptance by Errol Higgins
.
http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115.txt/cgi-
15 bin/download.cgi/download/au/legis/cth/consol_act/cca1995115.txt
QUOTE
[pic]
Criminal Code Act 1995

20
Act No. 12 of 1995 as amended
This compilation was prepared on 10 July 2008

taking into account amendments up to Act No. 66 of 2008
25
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be

30 affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,

END QUOTE
.
35 QUOTE
9.5 Claim of right
(1) A person is not criminally responsible for an offence that has

a physical element relating to property if:
40 (a) at the time of the conduct constituting the offence, the person
is under a mistaken belief about a proprietary or possessory
right; and
(b) the existence of that right would negate a fault element for
any physical element of the offence.
45
(2) A person is not criminally responsible for any other offence
arising necessarily out of the exercise of the proprietary or
possessory right that he or she mistakenly believes to exist.
50 (3) This section does not negate criminal responsibility for an

p32 9-3-2009
p33
offence relating to the use of force against a person.

END QUOTE
.
5 QUOTE
Justice Latham, "sometimes lead to misunderstanding. A pretended law made in excess of
10 such a decision is not an element, which produces invalidity in any law. The law is not
invalid ab initio."
END QUOTE
15 Australia Transcripts)
.
In the Marriage of Attreed (9180) 6 FLR 453 and 456QUOTE
Held – “In relation to a charge of contempt, there is an onus of proof upon the
applicant to establish each element of the offence beyond reasonable doubt. One such
20 element is that the offence was committed knowingly and without reasonable cause or
excuse. The respondent is not required to establish on the balance of probabilities that he had
just cause or excuse.
In my view the husband has only to satisfy me on the civil standard of proof”
END QUOTE
25 .
Mr Francis James Colosimo never waived about his constitutional rights and FEE SIMPLE
rights and therefore the onus of criminal standards of proof for any CONTEMPT
CONVICTION is upon the Prosecutor (Moorabool Shire Council’s lawyers).
As such if Mr Francis James Colosimo proffer 101 excuses and the Prosecutor can defeat 100
30 but not all then no conviction can occur, as it would not be beyond reasonable doubt.
.
KANPUR INCOME-TAX BAR ASSOCIATION & ANR. v. UNION OF INDIA & ORS. Civil
Misc. Writ Petn. No. 767 of 1997, decided on February 11, 1998. (Folder 31)
QUOTE
35 22. We would, therefore, hold that any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of public duty
or from violation of some provision of the Constitution or the law and seek enforcement of
such public duty and observance of such constitutional or legal provision. This is
absolutely essential for maintaining the rule of law, furthering the cause of justice and
40 accelerating the pace of realisation of the constitutional objective. ...
END QUOTE
.
In all the circumstances the shed is located in such position that no harm is to the general public
and as such it is a non-issue to pursue the shed issue. Mr Francis James Colosimo having acted
45 in good faith all along did not set out and neither intended to cause harm to any other person let
alone to the general public.
.
p33 9-3-2009
p34
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF
AUSTRALIA.
QUOTE
“In my opinion, the words ‘false evidence’ in s79A(1) do not mean evidence which is
5 willfully false. The sub-section should be read according to its terms. To say that ‘false
evidence should be read as ‘willful false evidence’ is to introduce a provision not expressed
by the provision; cf s6H of the Royal Commission Act 1902 which speaks of a witness ‘who
knowingly gives false testimony’. This interpretation is reinforced by reference elsewhere in
s79A(1) to the separate grounds of fraud and suppression of evidence which would
10 comprehend cases of willful false evidence. At common law, a judgment will be set aside if it
has been obtained by fraud. In the exercise of this jurisdiction, it has been held that an
applicant must show something more than perjury, ie. new facts (Baker v. Wadsworth [1898]
67 LJQB 301; Everett V. Ribbands [1946] 175 LT 143). This tends to suggest that the words
‘false evidence’ should be given their literal meaning” “ In my opinion, the jurisdiction
15 extends not only to the setting aside of judgments which have been obtained without service
or notice to a party (Craig v. Kanssen [1943] KB 256 at 262 - 263) but to the setting aside of a
default or ex-parte judgement obtained when the absence of the party is due to no fault on
his part.
END QUOTE
20 .
Again;
QUOTE
“ In my opinion, the jurisdiction extends not only to the setting aside of judgments which have
been obtained without service or notice to a party (Craig v. Kanssen [1943] KB 256 at 262 -
25 263) but to the setting aside of a default or ex-parte judgement obtained when the absence of
the party is due to no fault on his part.
END QUOTE
.
Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164, Griffith CJ.
30 QUOTE
“When an order is made Ex Parte, the court or Judge making it may, upon application of
any person prejudicially affected by the order, review and, if necessary, discharge it. This
is a rule of natural Justice. But, when a judgement or order is pronounced or made after
hearing both sides, it is generally the rule that the Court which pronounced or made the
35 judgement, or made the order cannot reverse or vary it” Griffith went on to point out that
there were exceptions to the rule.
END QUOTE
.
Evans v Bartlam (1937) AC 473
40 QUOTE
"The courts however, have laid down for themselves rules to guide them in the normal
exercise of their discretion. One is that where the judgement was obtained regularly there
must be an affidavit of merits, meaning that the applicant must produce to the court evidence
that he has a prima facie defense. It was suggested in argument that there is another rule that
45 the applicant must satisfy the court that there is reasonable explanation why judgement was
allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any
such rule exist, though the reason, if any, for allowing judgement and thereafter applying to
set it aside is one of the matter to which the court will have regard in exercising its
discretion. If there were a rigid rule that no one could have a default judgement set aside
p34 9-3-2009
p35
who knew at the time and intended that there should be a judgement signed, the two rules
would be deprived of most of their efficiency. The principal obviously is that unless and
until the court has pronounced a judgement upon the merits or by consent, it is to have the
power to revoke the expression of its coercive power where that has only been obtained by a
5 failure to follow any rules of procedure. But in any case in my opinion the court does not,
and I doubt whether it can, lay down rigid rules which deprive it of jurisdiction. Even the
first rule as to affidavit of merits could, in no doubt rare but appropriate cases, be departed
from."
END QUOTE
10 .
56. When and how a committal proceeding must be held
QUOTE
(1) A committal proceeding must be held in all cases in which The defendant is charged with an indictable
15 offence, except cases where-
(a) pursuant to common law or section 353 of the Crimes Act 1958, the presentment is preferred
by the Director of Public Prosecutions or a crown prosecutor without a committal proceeding having been
conducted; or
(b) The defendant elects to stand trial without a committal proceeding having been
20 conducted; or
(c) the charge is heard summarily.
(2) A committal proceeding must be conducted in accordance with Schedule 5.
(3) An election under sub-section (1)(b) may be made at any time after the service on The defendant of the
hand-up brief referred to in clause 6 of Schedule 5 or the plea brief referred to in clause 5 of that Schedule.
25 (4) An election is made by-
(a) filing with the registrar of the Magistrates' Court at the venue of the Court at which the
committal proceeding is to be held a notice in the prescribed form signed by The defendant; and
(b) serving a copy of the notice on the informant.
END QUOTE
30 .
CHAMBERLAIN v. DEPUTY COMMISSIONER OF TAXATION (1988) 164 CLR 502 F.C.
88/019
Re: Estoppel
QUOTE
35
As the doctrine of res judicata does not admit of any exception so long as the first judgment
stands, I do not find it necessary to consider the "special circumstances" exception
addressed in the joint judgment.
END QUOTE
40 And
QUOTE
5. To that statement of claim the appellant lodged a defence. In part the
defence consists of denials and non-admissions. But it also pleads the
earlier action between the parties and the entry of judgment "for the same
45 debt and in respect of the same cause of action as that alleged in the
statement of claim herein". By reason thereof, it is said, "the plaintiff is
estopped and precluded from maintaining his claim in this action against the
defendant".
END QUOTE
50 .
As set out below, Mr Francis James Colosimo was entitled to rely upon the information/advise
he understood to have been given by Mr Error Higgins that the matter had been adjourned until
the following day, and it was not for the lawyers of Moorabool Shire Council to contact Mr
p35 9-3-2009
p36
Francis James Colosimo as to try to get Mr Francis James Colosimo, in particularly a

unrepresented Defendant to appear before VCAT where already VCAT demonstrated itself to
disregard proper legal procedures applicable when a party makes an OBJECTION TO THE
JURISDICTION of the Tribunal/Court.
5 Mr Francis James Colosimo, himself lacking a proper understanding of all legal technicalities
obviously is an easy pray for lawyers and VCAT should in the circumstances have adjourned the
matter where Mr Francis James Colosimo relied upon the assistance of Mr Error Higgins. It
was not a deliberate act by Mr Francis James Colosimo to defy the hearing date but rather he
was acting on what he understood was the advise given to him and the fact that Mr Error
10 Higgins neither appeared underlines that Mr Francis James Colosimo acted in good faith.
Mr Francis James Colosimo is not bound to rely upon whatever the opponent lawyers may
state as the appropriate course for the opponent lawyers should have been, in the circumstances
prevailing, to contact Mr Error Higgins.
.
15 Re: Sidebotham (1880) 14 Ch D 458 James LJ
QUOTE
“A person aggrieved must be a man who has suffered a legal grievance, a man against
whom a decision has been pronounced which has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully affected his title to something.”
20 END QUOTE
.
Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617
QUOTE
“But the definition of James LJ is not to be regarded as exhaustive. Lord M R pointed out in
25 Ex Parte Official Receiver, re Reed Bowen and Co. (1887) 19 QBD 174 at p178. The
words person aggrieved are of wide import and should not be subjected to a restrictive
interpretation. They do not include, of course, a mere busy body who is interfering in things
that do not concern him; but they do include a person who has a grievance because an order
was made which prejudicially affects his interests.”
30 END QUOTE
.
Mr Francis James Colosimo has to his view been STALKED in various ways by Moorabool
Shire Council and those acting on its behalf without due and proper consideration to the harm
caused upon Mr Francis James Colosimo and so his wife, and without legal justification.
35 .
Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
QUOTE
“That case (a previous decision of the High Court, Foggit, Jones & Co v NSW
(1915) 21 CLR 357) was very briefly, and I regret to say, insufficiently argued
40 and considered on the last day of the Sydney sitting..... The arguments which
now commend themselves to me as conclusive did not find entrance to my
mind. In my judgment that case was wrongly decided, and should be
overruled.”
END QUOTE
45 .
QUOTE
law' Our sworn duty is to the law itself and to the organic nature of the constitution first
p36 9-3-2009
p37
of all. If, then, we find the law to be plainly in conflict with what we or any of our
5 ultimately right..
Whatever else may be said with respect to previous decisions - and it is necessary here to
10 the law as the court finds it, the real opinion of the court should be expressed.”
END QUOTE
15 .
R v National Liquors Ltd. (1922) 2 AC at 156; (1922) ALL ER Rep at p 351
QUOTE
“Its jurisdiction is to see that the inferior court has not exceeded its own, and for that very
reason it is bound not to interfere in what has been done within that jurisdiction for in
20 doing so it would itself, in turn, transgress the limits within its own jurisdiction of
supervision, not of review, is confined. That supervision goes to two points; one is the
area of inferior jurisdiction and the qualifications and conditions of its exercise; the other
is the observance of the law in the course of its exercise.”
END QUOTE
25 .
Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997
QUOTE
(1968) 1 ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson
Upjohn: - (Irrelevant consideration) “Here let it be said at once, he and his advisers have
30 obviously given a bona fide and painstaking consideration to the complaints addressed to
him; the question is whether the consideration was sufficient in law.”
END QUOTE
.
35 QUOTE
and considered on the last day of the Sydney sitting..... The arguments which
40 mind. In my judgment that case was wrongly decided, and should be
overruled.”
QUOTE
.
The Victorian Police Guide Fifth Ed. 1969
45 QUOTE
P156 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”
QUOTE
.
p37 9-3-2009
p38
The 28-5-2008 decision that proceeded in absenteeism of Mr Francis James Colosimo was
because Mr Francis James Colosimo understood from Error Higgins, who assisted him in
legal matters, that the case was adjourned till the next day. In my view nothing turns on that the
opponent lawyer may have contacted Mr Francis James Colosimo that the hearing would
5 proceed that day, as Mr Francis James Colosimo was entitled to rely upon what he was given
the under stranding by Mr Error Higgins. Where then the lawyer for Moorabool Shire Council
had been informed that day that Mr Francis James Colosimo relied upon the advise of Mr Errol
Higgins, then for that purpose it is not relevant if Mr Errol Higgins did state this or it may have
been a misconception as Mr Francis James Colosimo was entitled to act in good faith on what
10 he understood was the advise given to him. This in particular so where Mr Errol Higgins was
assisting him in his litigation and appeared at the bar table also at other times to assist Mr
Francis James Colosimo. Hence, the matter before VCAT was EX PARTE in that clearly the
proceedings were held in his absenteeism without his fault. One cannot expect that a
unrepresented person not having any proper conception of litigation then suddenly appears
15 before VCAT and denied upon the assistance of Mr Errol Higgens.
.
Scuderi v Morris [2001] VSCA 190 (29 October 2001
QUOTE
In order to resolve this appeal and to determine the relevant principles, we have had to
20 look at a considerable number of additional reported decisions as well as a variety of
text books, many of which we have had to find for ourselves with the invaluable assistance
of the researchers engaged by the Court.
END QUOTE
.
25 As such, the onus is upon the Court/VCAT to do its own research as to what is constitutionally
and/or otherwise legally applicable and not just take if from granted what, so to say, may ever
fall of the lips of the opponent lawyers acting for Moorabool Shire Council.
.
Albeit not being a lawyer, Mr G. H. Schorel-Hlavka for one is well aware that when a party to
30 the proceedings makes an OBJECTION TO JURISDICTION then not unless and until the
Court/Tribunal has formally dismissed such OBJECTION TO JURISDICTION it does not and
cannot invoke jurisdiction and any orders/decisions it may have issued/made in defiance to the
OBJECTION TO JURISDICTION is for all legal purposes ULTRA VIRES and so NULL
AND VOID and without legal force!
35 .
In the marriage of Smith v Saywell (1980) Fam LR 6 245 at 258
QUOTE
"Where a case pending in a federal court other than the HIGH COURT or in a court of a
state or territory involves a matter arising under the Constitution involving its interpretation,
40 it is the duty of the court not to proceed in the cause unless and until the court is satisfied
that notice of the cause, specifying the nature of the matter has been given to the Attorney
General of the commonwealth and (a) if the cause is pending in a court of a state - to the
Attorney General of that state; or (b) if the cause is pending in a Federal court and was
initiated in a state - to the Attorney General of that state, and for a reasonable time elapsed
45 since the giving of the notice for consideration by that Attorney General or by those
Attorney General, of the question of intervention in the proceedings or the removal of the
cause to the HIGH COURT."
END QUOTE
.
p38 9-3-2009
p39
The onus is then upon the Prosecutor or opponent party to satisfy the court/tribunal with
appropriate evidence to prove the court/tribunal can invoke jurisdiction and the court/tribunal
who’s jurisdiction is challenged then cannot continue unless it formally dismisses the
OBJECTION TO JURISDICTION by stating a REASON OF JUDGMENT the legal basis
5 why the court/tribunal finds there is jurisdiction. In my view VCAT has no different position in
that regard and unless and until it dismissed formally by REASON OF JUDGMENT and
formal orders/decision the OBJECTION TO JURISDICTION that a party has made its orders
all are a NULLITY.
While a tribunal member of VCAT may aspire to simply disregard the objection made by a party
10 to the proceedings and this party who made the objection can do little to stop such a member
from proceeding, the legal affect nevertheless is that the member then proceeds without
jurisdiction and therefore the hearing held and the orders/decisions made are legally worthless.
In my view, any tribunal member of VCAT should be aware and alert of any objection made by a
party to the proceedings and must ensure that a person who happens to be unrepresented is not so
15 to say steamrolled in being subjected to legal proceedings outside the jurisdiction of VCAT.
It is not relevant if the opponent party and VCAT may hold that VCAT has jurisdiction because
of existing legislative provisions as the unrepresented party clearly in his/her own way has made
clear, so to say, “Look your guys may view to know the law and I don’t but I am telling you
I oppose the jurisdiction of VCAT and that is it.”
20 No amount of self created rules and regulations by VCAT or for that matter a court can
circumvent the OBJECTION TO JURISDICTION.
.
To give an example, when a person is at his property and a police or other stranger desires to
enter the owner/occupant of the property is not bound by any specific code as to how to
25 formulate an objection but can in his own words make clear the person wanting to enter is
undesirable and not permitted to enter. It may be by a mere sign of “KEEP OUT,
TRESSPASING” or “PRIVATE PROPERTY” or whatever but the message conveyed by the
owner/occupant of the property is clear that entering the property is prohibited (See also Plenty v
Dillon HCA)
30 .
Before entering into the issue of FEE SIMPLE it may be more appropriate, in view of recent
High Court of Australia decisions regarding Queensland FEE SIMPLE status that the Sue v Hill
decision of the High Court of Australia is also considered in regard of the following
.
35 QUOTE
If the United Kingdom Parliament adopts any of the 39
recommendations relating to the powers, rights and immunities of the
Parliament, those changes may then apply in Queensland under the current
section 40A of the Constitution Act 1867 .
40 The potential for the Queensland Parliament's powers, rights and
immunities to be changed by the United Kingdom Parliament without any
consideration by the Legislative Assembly is inappropriate and a dated
notion for the independence and maturity of Queensland's Parliament.
The Bill proposes that section 40A of the Constitution Act 1867 be
45 amended to provide that the powers, rights and immunities of the
Queensland Legislative Assembly, its members and committees be those
which applied to the House of Commons of the Parliament of the United
Kingdom at the date of Australian Federation 1 January 1901.
END QUOTE
50 .
p39 9-3-2009
p40
On the one hand it was argued that the States and the Commonwealth no longer were subject to
British Law since at least 1986 and yet we then have this legislation that claims that a
constitutional amendment is required as late as 1999 because of the danger that the British
Parliament may alter its parliamentarian rules.
5 .
QUOTE
The potential for the Queensland Parliament's powers, rights and
consideration by the Legislative Assembly is inappropriate and a dated
10 notion for the independence and maturity of Queensland's Parliament.
END QUOTE
.
It appears that one way Queensland relies upon the Australia Bill 1986 to be deemed independent
from the British Crown and on the other hand it claims that its constitution some 13 years later in
15 1999 needs to be amended because otherwise the British legislation would alter the Queensland
Parliaments status of privileges, etc.
.
This to me would tend to show that Queensland by this recognized that the purported Australia
Act 1986 is so to say a furby and has no legal standing. This, as otherwise Queensland
20 Parliament would have not bothered to seek an amendment as where the states and the
Commonwealth purportedly had become independent from the British Crown, so the British
Parliament had legislated its own version of Australia Act 1986 then it appears to me that
regardless what then the British Parliament had legislated as to be applicable to its own
Parliament it could not have any effect upon Queensland and/or any other State or
25 Commonwealth Parliament.
More over a Constitution that was given royal assent in 1867 under the seal of the British Crown
somehow no seemed to be amended under the seal of some other Crown? Surely this is a
nonsense that no fair minded person possibly can accept as being reasonable.
.
30 Besides the fact that no amendment can be achieved but by State referendum it is also striking
that the Act refers to;
QUOTE
Consistency with Fundamental Legislative Principles
This Bill is consistent with fundamental legislative principles as outlined
35 in section 4 of the Legislative Standards Act 1992.
END QUOTE
.
It does not indicate to be consistent with the fundamental legislative principles of the
Commonwealth of Australia Constitution Act 1900 (UK), this even so this is the Constitution
40 that provided its status of Statehood.
.
It should be understood that neither Mr Francis James Colosimo and/or his wife Mrs Mary
Colisomo did not accept either the police or anyone of Moorabool Shire Council to enter his
property as to allegations of a shed that allegedly was built without compliance of legislative
45 provisions.
.
Where the issue was one that on constitutional and other legal grounds no permit was required
then in my view neither VCAT or for that any court could invoke jurisdiction pertaining the
matter of the shed unless and until VCAT or Court had first ruled on having jurisdiction.
50 .
p40 9-3-2009
p41
It therefore had to have submissions of Moorabool Shire Council why the constitutional
grounds relied upon by Mr Francis James Colosimo and/or Mrs Mary Colosimo were not
applicable and why VCAT could invoke jurisdiction. Upon this then Mr and Mrs Colosimo had
a right to reply, so as to set out any matters they may have held was incorrect, etc.
5 The same would have been applicable to any court.
.
QUOTE 1988 referendum results
Question 3
A Proposed Law: To alter the Constitution to recognise local government.
10 Do you approve this proposed alteration?
The Constitution recognises government at the Commonwealth and State levels but makes no mention of local
government. Constitution Alteration (Local Government) 1988 sought to give such constitutional recognition to local
government.
Result
State Number on Ballot For Against Informal
rolls papers
issued
% %
New South 3 564 856 3 297 246 1 033 364 31.70 2 226 529 68.30 37 353
Wales
Victoria 2 697 096 2 491 183 882 020 36.06 1 563 957 63.94 45 206
Queensland 1 693 247 1 542 293 586 942 38.31 945 333 61.69 10 018
South Australia 937 974 873 511 256 421 29.85 602 499 70.15 14 591
Western 926 636 845 209 247 830 29.76 584 863 70.24 12 516
Australia
Tasmania 302 324 282 785 76 707 27.50 202 214 72.50 3 864
Australian 166 131 149 128 58 755 39.78 88 945 60.22 1 428
Capital Territory
Northern 74 695 56 370 21 449 38.80 33 826 61.20 1 095
Territory
Total for 10 362 959 9 537 725 3 163 488 33.61 6 248 166 66.39 126 071
Commonwealth
Obtained majority in no State and an overall minority of 3 084 678 votes.
Not carried
15 END QUOTE 1988 referendum results
.
Therefore where the states are deriving their Statehood from the Constitution then it cannot
ignore that so called “local councils” (being actually “municipal councils/shires” have no legal
standing to prosecute and neither can Mr Francis James Colosimo be subjected then to pursue a
20 “PERMIT” such constitutionally non-existing entity.
.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
25 QUOTE
p41 9-3-2009
p42
Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys
5 And
of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,
10 The general rule is that an unconstitutional statute, though having the form and name
unconstitutionality dates from the time of its enactment, and not merely from the date
15 purports to settle just as it would be had the statute not been enacted.
duties, confers no rights, creates no office, bestows no power or authority on anyone,
20 operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the
25 END QUOTE
.
In that regard it doesn’t matter what tribunal/court makes orders as they are null and void and
without legal force because no tribunal/court can overcome the basic defect that Moorabool
Shire Council has no constitutional standing in that regard.
30 .
The alleged failure to comply with any Planning & Environment Act is not because of the
existence of the Act itself as the act itself is not taking any action rather it is the conduct of
Moorabool Shire Council that claims there is a breach of legislative provisions and so by its
own conduct to have refused to entertain the correspondence of Mr Francis James Colosimo
35 and so it cannot either benefit of the FRUSTRATION (in law) it caused upon Mr Francis
James Colosimo.
.
The issue is not if VCAT or any other court simply believed that it had jurisdiction to adjudicate
upon the matter but that it by judicial determination stated so as to be able to invoke jurisdiction.
40 Failing this not a single decision/order of VCAT and/or any other Court would therefore have
any legal basis and would be ULTRA VIRES and without legal force. Indeed, one may hold that
the entire legal campaign against Mr Francis James Colosimo was one of extreme abuse of
legal powers and a way deemed to be STALKING as clearly it was not sanctioned within the
legal provisions governing VCAT and/or a court of law.
45 It is not relevant if a shed was or was not existing, as this is “evidence” that only can come into
play if VCAT and/or any court had each on the occasions that an OBJECTION TO
JURISDICTION was made had formally dismissed this with a REASON OF JUDGMENT
setting out on what legal grounds such objection had been dismissed.
The objection is not at this point of time about a shed but about VCAT’s jurisdiction and/or the
50 courts jurisdiction.
p42 9-3-2009
p43
.
Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed ,P3)
QUOTE
"... the first business of the court is to try to issue whether or not the case is bought
5 within the terms of the statute, and only if this be proven by proper evidence can the
court proceed to decide upon treatment"
(See CROSS v. DE VALLE, 68 U.S. 5 (1863) and other cases in Folder 11 of the CD)
END QUOTE
10 Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169 (Folder 29 on the CD)
QUOTE
When a court has jurisdiction, it has a right to decide every question that occurs in the
cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded
as binding in every other court. But if it acts without authority, its judgments and
15 orders are regarded as nullities. They are not voidable, but simply void; and form no
bar to a recovery sought in opposition to them even prior to a reversal.'
END QUOTE
And
QUOTE
20 “Where there is absence of jurisdiction, all administrative and judicial proceedings
are a nullity and confer no right, offer no protection, and afford no justification, and
may be rejected upon direct collateral attack.”
QUOTE
.
25 Mr Francis James Colosimo submits that constitutional provisions must be interpreted as
intended by the Framers of the Constitution, as amended at the time by the British Parliament
when enacting the said Constitution and as amended by successful referendums, This in fact was
the very intentions as stated by the Framers of the Constitution during the Constitution
Convention Debates (Official Record of the Debates of the National Australasian
30 Convention) held in 1891, 1897 and 1898 and for which they laboured as they understood that to
make changes via Section 128 would be difficult but at the same time was its very protection.
.
DPP v Field [2001] VSC 472 (29 November 2001)
QUOTE
35 24. Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation
of the provision of an Act consideration may be given to any matter or document that is
relevant, including reports of proceedings in any House of the Parliament. The section
further provides that a construction that would promote the purpose or object underlying an
Act is to be preferred to a construction that would not promote that purpose or object. Those
40 provisions are well known.
QUOTE
.
A major problem lies with the High Court of Australia itself in that after 100 years, and in not
referring to the Hansard debates (Official Record of the Debates of the National Australasian
45 Convention) of the Framers of the Constitution over the years, it has failed to appropriately
interpret the intentions of the Framers of the Constitution and we find that judges such as
McHugh J and Kirby J, so to say, argue re what is credible and appear to fight as to what is
constitutionally applicable. (Al-Kateb, Al Khafaji, Behrooz and Re Woolley High Court of
Australia and such as in Al-Kateb v Godwin (2004) 208 ALR 124) (See Folder 01 of the CD). No
50 wonder then that others also have problems as to know what is, and when constitutional issues
p43 9-3-2009
p44
are applicable if at all. What ought to be understood is that the “Constitution” was intended to be
a set of “RULES” that dictated what the people allowed the Federation to be permitted to do, and
no more. Contemporary views play no part in interpreting the Framers of the Constitution
intention! As they made clear, the Constitution was alive and could be amended by Section 128
5 Referendum but only upon what the people desired and by their will alone, not what the
Government, the Parliament or the Courts desired to make of it outside a Section 128
Referendum. At the time of framing the Constitution Convention Bill (the forerunner of the
Constitution) the conventional law was that the Commonwealth of Australia did not exist and
neither therefore any prisons to house any alleged or convicted offenders against Commonwealth
10 of Australia legislative provisions. Hence, Section 120 was created to ensure that from the time
the Commonwealth of Australia came into existence a “person” accused or convicted would be
imprisoned by the State. Unlike many other parts of the Constitution, this Section 120 has not
the term “Until the Parliament otherwise provides” for the simple reason that it was never
intended that the Commonwealth of Australia would have anyone in detention, as after all it was
15 only a “political UNION”!
.
As this statement will indicate below in considerable set out the Commonwealth of Australia
Constitution Act 1900 (UK) was to federate the colonies and they be given a new status of being
Stated but “subject to this Constitution”.
20 Nothing may come from the fact that the 1988 referendum was defeated as to include Municipal
councils in the Federal constitution as to be recognized as a separate level of government, but
what is important is that the VETO did therefore not allow any State to continue any
unconstitutional conduct., as it neither was entitled to do so before the referendum was defeated,
as it is set out below there is no level of government below that of the States and the
25 Commonwealth.
The States are not subject to the Commonwealth as they are in their own rights sovereign in their
territories but legislation the States may have enacted prior to the Commonwealth exercising its
legislative powers then will be subject to Commonwealth law, and defeated for so far they are in
conflict. As shown below the States no longer can legislate on a subject the moment the
30 Commonwealth exercises its legislative powers on that subject and neither therefore are at liberty
to amend its own legislation. As shown below, the States and the Commonwealth cannot by
agreement circumvent Constitutional limits as both are constitutional entities subject to the
constitution and not above it. Therefore, for VCAT and/or any court to deal with Mr Francis
James Colosimo about alleged breaches of law then it first must be ascertain what constitutional
35 position does Moorabool Shire Council or for that any other shire or council have to pursue
litigation. It is not relevant if there are certain legislations in place and it might be shown that
there was a breach of legislative provisions because if Moorabool Shire Council is a non-
identity in constitutional concept then it has no legal status as to litigate. As there is no level of
government other then the States and the Commonwealth (Territories are under Commonwealth
40 as quasi states) then it is a constitutional absurdity to even contemplate litigation by a
constitutional non-existing entity.
.
It may be argued that in NSW by way of 1902 amendment to its constitution there was a Local
Government created and that somehow the other States may have done so in their own way, but
45 as I understand it Mr Francis James Colosimo is saying is that if those people of Moorabool
Shire Council want to pursue legal technicalities then let them prove their constitutional right to
do so first of all, before they even attempt to pester me with their nonsense. After all, if
Moorabool Shire Council has no constitutional position in law then how on earth can they
obtain any permit? What value is a permit of a constitutional non-existing body?
50 .
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The mere fact that the State Parliament may have created for “Local government” as being
“municipal councils” doesn’t mean that they therefore are constitutionally valid.
As shown below, the constitutional term “Local government” refers to “State government” and
the constitutional term of “Central government” refers to “Federal government”. Hence, the
5 States may fancy to create their own additional government under whatever level but it cannot
circumvent being “subject to this constitution”.
The States do not exist in their identities as States but for the Federal Constitution and are and
remain to be subject to this Constitution.
.
10 The following is from one of the INSPECTOR-RIKATI® books;
QUOTE Chapter 361 –Local Government
Chapter 361 –Local Government
.
* Gerrit, another issue you have addressed, didn’t you?
15 .
**#** INSPECTOR-RIKATI®, indeed I did see below.
.
Jeff McMullen, ABC, DIFFERENCE OF OPINION

20 Ph. 1800 502 404
Fax 02 8333 3344
25 Re; levels of Government
Jeff McMullan
30 .
FEDERAL GOVERNMENT/CENTRALISED GOVERNMENT
.
Versus
.
35 STATE GOVERNMENT/LOCAL GOVERNMENT
.
Versus
.
MUNICIPAL COUNILS/LOCAL GOVERNMENT
40 .
While in today’s language when we refer to “LOCAL GOVERNMENT” we refer to “LOCAL
COUNCILS” rather then “MUNICIPAL COUNCILS” constitutionally (considering the
Commonwealth of Australia Constitution Act 1900 (UK) we have a “CENTRALISED
GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
45 with a “STATE PARLIAMENT”.
When one refers to the Federation and State Governments then “LOCAL GOVERNMENT”
refers to State Governments. When we refer to internal State matters then “LOCAL
GOVERNMENT” is “MUNICIPAL COUNCILS” being “LOCAL GOVERNMENTS”.
.
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When dealing with the TWO levels of Governments, being Federal and State Governments, then
the de facto third level of Government “MUNICIPAL COUNCILS” is not to be taken as a level
of Government.
.
5 It must be clear that the Commonwealth of Australia has no constitutional powers to alter State
legislative powers/boundaries, etc at its own will. However, States can alter “MUNICIPAL
COUNCILS” boundaries as much as it likes. No referendum is needed for this.
Local councils are not true Governments but delegated bodies that act as a Government under the
authority of a State Government. However, State Governments do not act under the Authority of
10 the Federal Government, rather that the Federal Government acts under the authority of State
Governments.
The Federal Government cannot take anything from the States that the States doesn’t want to
give on legislative powers, whereas the States (subject to a Section 123 of the Constitution State
referendum) can and it desire hand over whatever legislative powers it has, to the Federal
15 Government.
Take for example the issue of “CITIZENSHIP”. Neither the Commonwealth of Australia or
“MUNICIPAL COUNCILS” have legislative powers as to declare/define “CITIZENSHIP”. It
is and remains to be a constitutional powers reserved for the State Parliaments. See also Hansard
20 2-3-1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so
far it purports to define/declare “CITIZENSHIP” is ULTRA VIRES.
To abolish State governments would mean that such powers would have to be handed over to
either a Federal Parliament or to “MUNICIPAL COUNCILS”.
Obviously “MUNICIPAL COUNCILS” could not deal appropriately with this and a Federal
25 government would not be able to deal with this appropriately. Why you may ask? Because
“CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
over to the Commonwealth of Australia would be basically to vandalise the very protection’s
build in the Commonwealth of Australia Constitution Act 1900 (UK).
This correspondence cannot set out in an elaborate manner all that is relevant to this, but those
30 interested can always read my various books published in the INSPECTOR-RIKATI® series.
The usage of the term “local government” during the Constitution Convention Debates were
in general referring to State Governments, below some examples.
WE EITHER HAVE A CONSTITUTION OR WE DON’T!

35
The Federal Government cannot have it both ways, argue it has constitutional rights to
implement certain legislation and on the other hand ignore constitutional constrains when it
doesn’t suit it.
40 What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as
to constitutional powers and limitations.
Currently there is to much nonsense going on where even judges do not even comprehend
constitutional limits and fancy themselves to amend the Constitution by backdoor manner
45 (judgments) while those politicians in the Parliament know next to nothing as to what is
constitutionally permissible or not.
Lets get realistic and before anyone comes up with what is wrong with any government level let
them first learn what is constitutionally applicable. After all, if they have it wrong from onset and
50 do not comprehend how matters are constitutionally then what are they talking about?
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Please note the comments below, including an e-mail to Mr. Kevin Rudd.
DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

5 .
MONDAY, FEBRUARY 10, 1890.
Mr. DEAKIN.-
I believe, by the Bill which will shortly grant Western Australia the local government
which all Australasia has long wished her, to confine the new colony to the territory south
10 of the 26th parallel, while the territory north of that is to be governed by Western Australia
under the control of Ministers in England.
And
Mr. DEAKIN.-
With regard to work which might be better done by a Federal Government than by the
15 separate Governments of the colonies, it is questioned whether, when the Convention
comes to consider all the issues raised (which I do not enter into), it will not be decided that
the larger part of the work should be left to the local Governments. It is argued that public
works, for instance, would be more satisfactorily carried out by the local Governments
than by a Government more removed.
20 And
Mr. DEAKIN.-
But what is clearer is, that the great cable and mail lines between this continent and the old
world would inevitably pass under the control of the Federal Government. There is one
land line already across the continent of Australia, which it might be necessary to hand over
25 to the Central Government, And there is a cable projected towards North America, which
will greatly affect the interests of the inhabitants of Australasia and the Pacific islands and
our countrymen across the sea.
And
Mr. DEAKIN
30 Leaving these details, which I have only ventured to touch upon in a fragmentary way, and
sympathizing with the strong stand made by Mr. Playford on the supposition that the
powers and privileges of the different local Governments were to be assailed, and being as
prepared as he is to do my utmost in their defence, I believe that we would act idly unless
we admitted from the first that in the creation of a Federal Legislature and a Federal
35 Executive we meant them to be the organs of a Sovereign state-a state which would not be
a figment or shadow, nor exist only on the sufferance of the local Parliaments, but which
would draw its authority straight from the people of the different colonies, obtaining from
them the plenary powers to be exercised by it within certain limits. The great lesson taught
by Mr. Bryce in his magnificent work is that the strength of the United States Government
40 lies in this, that although it is a Federal Government, under which each State of the Union is
theoretically and actually independent in respect to all concerns of local life and
legislation, it has nevertheless sovereign authority in that it is gifted with powers which act
directly and immediately on every citizen of the entire country. It is not dependent on any
state for one cent of its revenue, nor upon state officers for any act of administration , nor
45 upon State Courts for any decision in its favour. Except that the state legislators elect the
members of the Senate there is no connexion between the states and their Central
Government. The Union is not concerned to have their support, nor does it seek their aid
for the forces it maintains. It is a Sovereign state acting directly, without any
intermediary, upon the citizens from which it springs. (Hear, hear.) I am glad that view
50 is concurred with. I am glad to think that we shall see a Sovereign state in Australasia
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which will be able to act directly through its judiciary, and in other ways, on every citizen
within its borders, and be in every respect and in all its powers the equal of any state in the
world. Were we to aim at crippling, maiming, or enfeebling the local Legislatures, we
would aim at doing something not only wholly unnecessary for our purpose, but something
5 which would actually injure the Federal Government we are seeking to establish. There
should be and must be nothing antagonistic between a Federal Government supreme in its
sphere and local Governments supreme in their spheres. It is perfectly true that there must
be a division of authority, that some of the powers of the local Governments will have to be
transferred to the Federal Government, but the judges of the powers to be given to either
10 body must not be either the local Governments with their jealousies, or the Central
Government with its ambitions. The judgment must come from those whom both exist only
to serve-from the people themselves. So far both the local and central authorities must
be regarded as on the same platform, because as it is in the national interest that there
should be a differentiation of the powers of Government into central and local
15 Governments so in settling that division only national interests ought to be considered.
What we have to study is how to give the central authority all the powers which can be best
exercised by such a body to the distinct advantage of the whole of the people. Those
powers it ought to have; but it is not to be [start page 27] entitled to acquire them in such a
way as would enfeeble the different local Governments, on whose healthy life its
20 successful existence must largely depend. As well might it be attempted to enfeeble
municipal institutions in order to aggrandize Parliament, the fact being that parliamentary
Government depends very much for its smooth and easy working upon the smooth and easy
working of the minor local bodies. There are an infinite number of issues which no
central Parliament could deal with, but which necessarily belong to the local
25 Legislatures, and which they should be able to deal with in the present manner. For my
part, I think we should seek to strengthen the local Legislatures by every possible means.
We should, as Mr. Playford says, leave them every power it is possible for them to exercise
in the interests of the whole community. If more power can be given them for that purpose
than is conceded elsewhere, let it be granted, but let us give the Central Government just
30 as emphatically a full and unfettered power so far as the interests of the whole people
demand it.
Hansard 5-3-1891 Constitution Convention Debates
35 Mr. PLAYFORD: And that it would be given back to the various local governments in
proportion to the population of their respective colonies. If we consider for a moment that
the federal government must have an executive, and will have to provide the necessary
payment for the federal forces, for the federal executive, and for various other matters, we
must see that they will have to derive a revenue in some way or other; and the most
40 difficult question, I think, which the members of the Convention will find, when they come
to deal with it, will be the adjustment of that financial part of, if I may so call it, the trouble
between the federal government on the one hand, and the local governments on the
other. It may be necessary that, in certain instances, we should be paid back by the federal
government a proportion of the money that we, as local governments, derive from
45 customs. The

Mr. DEAKIN.-
Now, a few words as to the bounties. The Federal Parliament, representing the federal
50 people, will be as sensitive to the appeals of the people for assistance as any local
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p49
Parliament has been. The great federal industries of Australia-fruit-growing, dairying,

agriculture, and horticulture-will be no less an object of concern to representatives in the
Federal Parliament than they have been to representatives in the various local Parliaments
indeed, the improved circumstances and more independent position of the Federal
5 Government will allow them to deal with the development of these industries with a more
liberal hand than the local Governments can deal with them.
And
Mr. TRENWITH.-
10 We find, within the area of our state Legislatures, that we have local interests continually
presented to Parliament from various parts of the respective states. In Victoria we have a
most complete system of local government, under which particular localities legislate for
their local requirements, and manage very largely their local concerns in regard to roads
and bridges, and so forth. They are continually coming to Parliament asking for some
15 special concessions. Very often these special concessions involve the expenditure of large
sums from the general revenue, but yet we find that whenever these requests are made they
are almost invariably passed with the greatest possible rapidity. Parliament is always
inclined to act generously to sections of the community over which it has to govern, and we
have a right to assume that when we have created a Federal Parliament, and local
20 considerations from any of the states are submitted to it, it will treat them in much the
same manner as the state Parliament treats matters from municipal councils within
the area of their government now.
Again;
Parliament is always inclined to act generously to sections of the community over which it
25 has to govern, and we have a right to assume that when we have created a Federal
Parliament, and local considerations from any of the states are submitted to it, it will
treat them in much the same manner as the state Parliament treats matters from
municipal councils within the area of their government now.

Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne and
Metropolitan Board of Works praying that the Convention would preserve the right of the
Queen's Australian subjects to appeal to the Privy Council, and moved that it be received
and read.
35 The motion was agreed to.
The CLERK read the petition, as follows:-
To the Right Honorable the President and the Members of the Australasian Federal
Convention, in session assembled.
The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That
40 your petitioner is a body corporate created by Act of the Parliament of Victoria, composed
of representatives elected by the councils of the city of Melbourne and the municipal
councils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said
colony, which comprises an area of about 160 square miles, with a population of more than
451,000, who will be responsible for rates to be levied by your petitioner.
45 That the principal duties assigned to your petitioner are to manage and extend the water
supply of the said metropolis, and to undertake the sewering and draining thereof.
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That in relation to the former of the said duties your petitioner is charged with liability
to the Government of Victoria for a sum of £2,359,156, the balance of money lent for
construction of the waterworks by creditors who are mostly resident in Great Britain. And
for extension of the said works, and to sewer and drain the metropolis, your petitioner has
5 borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in
the United Kingdom.
Date: Tue, 28 Aug 2007 01:23:27 +1000 (EST)

"Gerrit Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
From:
Yahoo! DomainKeys has confirmed that this message was sent by yahoo.com.au.
Subject: No parliament under a federation can be "sovereign Parliament"
To: Kevin.Rudd.MP@aph.gov.au
CC: inspector_rikati@yahoo.com.au
Kevin.Rudd.MP@aph.gov.au,
10 Kevin Rudd, Leader of Her Majesty's Opposition
.
AND TO WHOM IT MAY CONCERN
.
Kevin,
15 In regard of your reported comments about seeking a REFERENDUM as to transfer legislative
powers from the States to the Commonwealth of Australia (regarding health matters), I do wish
to point out that Section 128 actually requires a state referendum to be held first in regard of any
legislative powers to be transferred to the Commonwealth of Australia, and once this has been
obtained then it requires another Federal Referendum (involving the same States). As such
20 Section 128 requires actually two referendums. The Commonwealth Parliament cannot propose
any amendment of the Constitution unless the proposed amendment has been already accepted
by the relevant State themselves by a State referendum.
Section 123 Referendum applies to where a State Parliament desires to have an amendment of its
State Constitution, it desires to refer legislative powers to the Commonwealth (such as within
25 Subsection 51(xxxvii) of the Constitution) and/or it desires to transfer part of its State territory to
the Commonwealth of Australia or otherwise alter its State boundaries.
It should be understood that State constitutions apply for the whole of the territory of that State
and as such when the State refers legislative powers to the Commonwealth of Australia it in
effect acts as an alteration of its constitutional powers as it diminish its constitutional powers and
30 as such can only be approved or vetoed by the State electors.
.
.
QUOTE:-
35 No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will.
END QUOTE
.
"Subject to this constitution" means it must be interpreted to the intentions of the Framers of the
40 Constitution allowing for amendments made with approval by referendums.
With other words, the NSW Colonial Constitution Act effectively became amended by the
Commonwealth of Australia Act 1900 (UK) by legislatives powers belonging to all Colonies
being invested in the Federation (Commonwealth of Australia) which were specifically listed in
the Commonwealth of Australia Constitution Act 1900 (UK).
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By colonial referendums this was approved by all Colonies electors.

Therefore, since Federation no State Parliament could amend its own State Constitution as it no
longer was a "sovereign Parliaments" but a "constitutional Parliament", as like the Federal
Parliament. This means that the State Parliament (as like the Federal Parliament) can only
5 propose to the State electors to amend the State constitution and then the State electors must
decide to approve or to VETO this proposed amendments(s).
.
Hence, ask which State Parliament since Federation actually pursued this way to amend its State
constitution?
10 .
You may find that NSW amended its State Constitution in 1902 but was it with the required
approval of the State electors by State referendum?
You find that the State of Victoria purportedly amended its State Constitution without a State
referendum in 1975, etc.
15 Likewise so in regard of any other subsequent purported State Constitution amendments!
.
As the Framers of the Constitution refused to give any legislative powers to the Commonwealth
of Australia as to define/declare "citizenship" (Hansard 2-3-1898 Constitution Convention
Debates) then as I successfully argued in my previous cases, the Australian Citizenship Act 1948
20 is ULTRA VIRES for so far it purports to define/declare "citizenship.
Hence, not a single police officer/lawyers/judge/politician is validly appointed as they all require
"citizenship" for this!
.
All court convictions made subsequently to the amended constitutional are all unconstitutional
25 and ULTRA VIRES, for so far they rely upon unauthorised amendments of a State Constitution!
It is pleasing to me, as a "CONSTITUTIONALIST" that finally we have a person as the Leader
of Her Majesty’s Opposition who indicates to seek approval from the electors by way of
referendum. That is if you were to pursue changes in that regard.
In my books in the INSPECTOR-RIKATI® series, I have canvassed that we should have an
30 OFFICE OF THE GUARDIAN, a constitutional council, that advises the Government, the
People, the Parliament and the Courts as to what is constitutional permissible and the limits of
powers.
Basically, anyone convicted of serious crimes, even terrorism, can walk free because of the lack
of qualifications by all concerned, including lack of "CITIZENSHIP", and that is, so to say,
35 merely the tip of the iceberg.
The fact that I succeeded in the Court that the commonwealth of Australia has no constitutional
powers to compel anyone to register and/or to vote may underline how absurd it is that
legislation that is ULTRA VIRES is being enforced nevertheless.
And, the Joint Senate Committee on Electoral Matters for years refused to attend to these issues
40 despite having been notified by me about this time and again.
.
The general misconception is that any statute passed by legislators bearing the appearance of law
constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be
valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one
45 must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in
reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from
the time of its enactment, and not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a
50 statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
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Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no
rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies
no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to
5 supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the
land, it is superseded thereby.
10 .
PLEASE NOTE THERE IS MORE REGARDING THIS ISSUE OF "CONSTITUTIONAL
PARLIAMENTS" BUT I WILL BE NICE TO YOU AND NOT QUOTE ALL RELEVANT
STATEMENTS FOR NOW. IN ANY EVENT THEY ARE PUBLISHED IN MY BOOKS!
.
15 Gerrit
20 Mr. G. H. Schorel-Hlavka
MAY JUSTICE ALWAYS PREVAIL®
107 Graham Road

25
Viewbank, 3084, Victoria, Australia
Ph/Fax 03-94577209
International 61394577209
30
"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on certain

constitutional and other legal issues.
35 See also website; http://schorel-hlavka.com and
Blog; http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH
40
See also;
.
QUOTE
45 Dr. COCKBURN: There have been only four amendments in this century. The hon.
member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with
me that out of sixteen amendments only four have been agreed to in this century. All the
other amendments which have been made were really amend- [start page 198] ments which
were indicated almost at the very framing of the constitution, and they may be said to be
50 amendments which were embodied in the constitution at the first start. The very element,
the very essence, of federation is rigidity, and it is no use expecting that under a rigid and
written constitution we can still preserve those advantages which we have reaped under an
p52 9-3-2009
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elastic constitution. All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we embark
on federation we throw parliamentary sovereignty overboard. Parliament is no longer
supreme. Our parliaments at present are not only legislative, but constituent bodies.
5 They have not only the power of legislation, but the power of amending their
constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease
to have the power of changing its constitution at its own will. Again, instead of
parliament being supreme, the parliaments of a federation are coordinate bodies-the
10 main power is split up, instead of being vested in one body. More than all that, there is
this difference: When parliamentary sovereignty is dispensed with, instead of there
being a high court of parliament, you bring into existence a powerful judiciary which
towers above all powers, legislative and executive, and which is the sole arbiter and
interpreter of the constitution.
15 END QUOTE
END QUOTE Chapter 361 –Local Government
.
Therefore “municipal councils” while obviously recognized by the framers of the constitution
they were however not recognized for constitutional purposes as a level of government and
20 neither as “local government” and as such neither have legislative powers to enact by-laws!
.
As for municipal councils to charge interest rates, on outstanding rates, the following should be
considered also;
.
25 The following is a statement published by Mr G. H. Schorel-Hlavka
QUOTE Statement published 30-12-2008
TO WHOM IT MAY CONCERN
People at times ask me why on earth do I worry about the Constitution and just take
matters as they are. The problem is that the moment we all do so then why at all
30 have a Constitution and not just allow politicians to be their own dictators? It is
because we all know that the more power politicians get the more power they want
to abuse.
Ever annoyed about getting a rate bill in from local council which makes clear that
they are charging perhaps about 12% interest, regardless how low the actual interest
35 rate is? While I pay the bill about immediately it comes in and as such the 12% or so
isn’t going to affect me it is in my view a blackmail conduct and a form of terrorism.
Terrorism isn’t just to use bombs and guns. People can be terrorised in all kinds of
ways. Blackmail is one of them.
When the water bill comes in again there is a warning of interest rates, and I get
40 darn frustrated about this.
As a CONSTITUTIONALIST I then ask who on earth authorised those organs of

the Crown and others to charge interest?
You see that is where the constitution is very handy for.
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So, while the State of Victoria as like any state had the right to dictate terms of State
Banking and the rest went all to the Commonwealth, it must be understood that the
State of Victoria lost its State Bank. As such, where is the legislative power then for
5 the State of Victoria to allow its organs sand other entities to charge interest rates?
If the State Bank of Victoria still existed then the Victorian Parliament could have
legislated that for example water authorities using the State Bank of Victoria could
then pass on the loss of interest otherwise entitled to if the consumer had paid the
10 bill on time. As such the compensation of loss of interest could have been provided
for. However, as the State of Victoria no longer has a State Bank then it neither can
do so for the loss of interest and certainly an absurd 12%, etc.
Then where there is no State Bank of Victoria then the State Parliament neither can
15 legislate as to State banking and as such I view any legislation that is enacted
regarding authorities to charge interest rates is unconstitutional.
More over, we have Courts making orders for interest and again one have to ask
where do the State Courts obtain their jurisdiction from if the State Parliament no
20 longer has such powers?
Clearly the State of Victoria having lost its legislative powers then neither can a
State court exercise powers that no longer exist.
.
25 The legislative powers of a State is depending upon a State Bank being in existence.
What we have therefore is unconstitutional legislation by the Victorian State

Parliament and the abuse and misuse of the judicial powers to grant interest where
no such powers exist.
30 .
As such, where are basically terrorised by interest charges by water trading

companies, municipal councils, etc, and was it not for the constitution no one could
oppose it. Now you have the ability to oppose such fraudulent charges of interest.
The question is will you pursue your rights?
35 .
The Constitution is far more important then you may ever have understood!
END QUOTE Statement published 30-12-2008
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.
HANSARD 22-9-1897 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE
5 Sub-clause 15. Banking, the incorporation of banks, and the issue of paper money.
Amendment suggested by the Legislative Assembly of New South Wales, and the
Legislative Council of Tasmania:
After "banking" insert "excluding state banking not extending beyond the limits of the
state concerned."
10 Amendment suggested by the Legislative Assembly of Victoria, and the Legislative

Council of South Australia:
After "banking" insert "excluding state banks."
The CHAIRMAN: 0n this sub clause the Assembly of New South Wales, the Assembly
of Victoria, the Council of South Australia, and the Council of Tasmania, have suggested
15 amendments which, although not in the same words, are practically identical.
The Hon. J.H. CARRUTHERS (New South Wales)[3.2]: I trust the Committee will agree
to the amendment suggested by four parliaments of five of the colonies. If hon. members
will look at sub-clause 16 with regard to insurance, it will be found that the draft bill
provides for insurance, excluding state insurance not extending beyond the limits of the
20 state concerned. So that in the next sub-clause, the principle which is being contended for
in the proposed amendment is practically conceded. We know that state banking is coming
into favour in the Australasian colonies. It is not proposed to interfere with federal control
of state banking when it goes beyond the limits of the state concerned. It seems to me to be
purely a matter of state concern when the banking is limited to the state. As the proposal
25 has been suggested by four colonies I shall content myself with supporting the amendment,
and I shall call for a division upon it.
The CHAIRMAN: Perhaps I ought to point out that there is a substantial difference
between the suggestions of the Victorian and South Australian Parliaments, on the one
hand, and those of New South Wales and Tasmania, on the other In the one case, state
30 banks are excluded simply; in the other, state banks are excluded when they do not extend
beyond the limits of the states concerned. I will put the question in this form:
That the following words be inserted after the word "banking," "excluding state banking.
If that is carried, the remaining words may be inserted.
The Right Hon. Sir JOHN FORREST (Western Australia)[3.6]: We have in our colony
35 what we call an agricultural bank, established for the purpose of encouraging the
cultivation and improvement of [start page 1075] the land, and to make advances to
farmers. Would that be regarded as a state bank?
The Hon. Sir J.W. DOWNER: Is it a Government bank?

The Right Hon. Sir JOHN FORREST: Yes; under a statute.
40 The Hon. Sir J.W. DOWNER: Then, it is a state bank!

p55 9-3-2009
p56
END QUOTE
.
The issue is that municipal councils are not advancing any monies to a ratepayers as like a bank
and so are in no position to charge interest rate, not even on overdue rates.
5 .
What we have is that municipal councils/shire councils are for ever increasing the rates and are in
fact using it for items which are in fact under federal legislative powers and as such this is
unconstitutional.
10 .
Now, even if a council were to be held to act as a organ for the State government then it would
be limited to whatever State powers are and cannot somehow exercise federal legislative powers
or federal executive powers., and neither can spend big time on matters that under federal
powers.
15 .
Constitutionally there is no overlap of legislative powers because either State or Federal
Parliament have the legislative powers but not both. Using Municipal/shire councils as a way to
circumvent the limitations is just not on.
.
20 Neither therefore was it appropriate for VCAT to allow the administrative orders to be used to
then have Moorabool Shire Council enforcing its claims regarding alleged overdue rates and
interest charges without any court of law having adjudicate upon this.
What we now have is that VCAT sidesteps the legal processes ordinary applicable and as an
organ for the government manipulates its powers to enforce whatever another organ of
25 government desires.
While there was no hearing regarding the correctness of the claims by Moorabool Shire Council
nevertheless somehow the administrative orders are manipulated to force payment for
Moorabool Shire Council. It is a total absurdity that such kind of system is applied and it defies
the due process of law as intended by the Framers of the Constitution to be applied by a court by
30 judicial decision.
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
QUOTE Mr. ISAACS.-
35 The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
.
40 QUOTE
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
END QUOTE
45 .
QUOTE Mr. SYMON (South Australia).-
That this is not like an Act of Parliament which we are passing. It is not in the position
which Mr. Barton has described, of choosing or setting up a code of laws to interpret the
p56 9-3-2009
p57
common law of England. This Constitution we are framing is not yet passed. It has to
be handed over not to a Convention similar to this, not to a small select body of
legislators, but to the whole body of the people for their acceptance or rejection. It is
the whole body of the people whose understanding you have to bring to bear upon it,
5 and it is the whole body of the people, the more or less instructed body of the people,
who have to understand clearly everything in the Constitution, which affects them for
weal or woe during the whole time of the existence of this Commonwealth. We cannot
have on the platform, when this Constitution is commended to the people, lawyers on
both sides, drawing subtle distinctions, which may or may not be appreciated by the
10 people.
END QUOTE
.
Again;
15 QUOTE
Mr. CARRUTHERS:
to understand.
END QUOTE
20 .
It must be clear from the various transcripts before VCAT and/or the courts that Mr Francis
James Colosimo made clear he relied upon his constitutional rights, etc. and regardless what the
opponent party and the Court may otherwise thing of him in the end what is legally relevant is
that he stated his constitutional rights and not unless VCAT and/or a Court of law each time
25 dismissed this by judicial determination no jurisdiction was ever invoked. Therefore Mr Francis
James Colosimo does not have to flaunt any orders/decisions of VCAT and/or any Court as they
were a constitutional nullity.
.
R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
30 QUOTE
“However in some cases the words or conduct of a judge may be such as to lead the parties
reasonably to think that the judge has prejudged an important question in the case, and then
prohibition may issue. Of course, the court which is asked to grant prohibition will not
lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be
35 "firmly established" that such a suspicion may reasonably be engendered in the minds of the
parties or the public, as was made clear by the court in R v Commonwealth Conciliation
and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in
the passage cited in R v Watson; Ex Parte Armstrong (132 CLR at 262).”
“The critical question, however, is not whether a judge believes he or she has prejudged a
40 question, but whether that is what a party or the public might reasonably suspect has
occurred (see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon
(1969) 1 QB 577 at 599, a judgement cited with approval by this court in R v
Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group
(1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might
45 well convey the impression of "protesting to much"...
END QUOTE
.
I have concern that it was reported that allegedly on 9 March 2007 VCAT Helen Gibson, Deputy
Chair reportedly stated;
50 QUOTE
p57 9-3-2009
p58
“From the perspective of the tribunal, we are under the jurisdiction of the Planning &
Environment Act, and we are “bound” to continue..”
END QUOTE
.
5 Here we have an unlettered person objecting to the jurisdiction of VCAT and all the member
does is to refer to legislation that refers to VCAT rather then to make sure that by judicial
determination it can invoke jurisdiction, if it can at all.
.
Martins v Fowler (1926) AC 746
10 QUOTE
“Headings are not in my opinion mere marginal notes but the sections & group to which
they belong must be read in connection with them" (per GRIFFIN CJ in Saunders v
Borthisle (1904) 1 CLR 379 at 389) where an act is divided into parts or heads it is PRIMA
FACIE to be presumed that those heads were intended to indicate a certain group or clauses
15 relating to a particular subject, and the court will not hold that a clause in a group relating to
one subject matter was intended to apply to another matter in another part of the act, unless
such intention is clear; The PRIMA FACIE object of the division is to enable everybody
who reads the act to discriminate as to what clauses relate to a particular subject matter; “
QUOTE
20 .
Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)
QUOTE
“It is necessary, in construing an act which alters the law, to inquire what was the state of the
law before the alteration was made, what was the mischief intended to be remedied, and
25 what was the nature of the remedy provided.”
END QUOTE
.
In Constantine v Guilfoyle (1915) 32 W.N. (N.S.W.) 74 per Fergusson
QUOTE
30 “No doubt it is the duty of the court to look at the object of an act in determining what is the
meaning of the language which the legislature had used; but it is no part of the duty of the
court to endeavour to carry out that object by making something an offence which the
legislature itself has not made an offence.”
END QUOTE
35 .
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
QUOTE
“This court however must take the act as it finds it, and cannot do violence to its language in
order to bring within its scope, cases, which although within its mischief are not within its
40 words.”
END QUOTE
Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)
QUOTE
“The act should be construed according to its intention of the legislature. Where the
45 legislature has stated the mischief for which the common law did not provide, consideration
of the nature and extent of that mischief is relevant to the interpretation of the act.”
END QUOTE
.
Not a single person could avail himself/herself to turn to the Courts for a “judicial
50 determination” as to matters in dispute if the Courts were to make up what the Constitution
p58 9-3-2009
p59
stands for as to their contemporary views, at the time of a dispute coming before the Courts. How
could anyone indeed comply with legal provisions, including the Constitution, if the meaning of
the original provisions might be altered pending upon the contemporary or personal views of the
judges concerned? Then some time later the people of the Commonwealth, and relying on the
5 original intentions of the Framers of the Constitution as was intended by them, find the meaning
as intended altered in the intervening years, and no Referendum having been held in relation to
the changes so made. And such changes made, which unknown at the time of the action taken,
these changes were made perhaps years earlier?
.
10 It is not relevant if some Act of Parliament has given VCAT some kind of jurisdiction over
certain matters, as what was relevant was that Mr Francis James Colosimo objected to it having
jurisdiction on constitutional grounds and therefore it is not relevant if a hundred different acts
may indicate jurisdiction if in the end Moorabool Shire Council has no legal position to litigate.
.VCAT or any other Court cannot disregard the legal status of Moorabool Shire Council or the
15 lack thereof.
.
If for example a driver of a motor vehicle were to sue Mr Francis James Colosimo for damages
to a motor vehicle during an accident but the it is found that the driver had no legal standing, say
he was driving a stolen vehicle, then the court could not make orders merely because the thief
20 wanted this, if an objection to jurisdiction was made regardless if in ordinary cases the Court has
jurisdiction. Where then Moorabool Shire Council has no constitutional position how then can
it seek to prosecute Mr Francis James Colosimo for not having a permit from for a shed? Who
is to issue the “permit”? Certainly it cannot be Moorabool Shire Council because it has no
constitutional standing. Therefore, it is not relevant if the Planning & Environment Act does give
25 jurisdiction to VCAT to adjudicate because there is nothing to adjudicate about because the Act
provides for a permit that constitutionally cannot be obtained from a constitutional non-identity.
The State could for the same have legislated for a person needing a permit from “NEPTUNE” or
whom ever and it would have had as much legal validity as it was in regard of Moorabool Shire
Council.
30 .
More over, even for argument, not that this was conceded, Moorabool Shire Council had some
legal position to issue a “permit” the fact that Mr Francis James Colosimo requested for it and
his correspondences were left without response in that regard would have invalidated any
“permit” requirement. It is a fact of law that if a authority of whatever nature provided for rules
35 and regulations that requires a person to make an application then this authority is compelled to
CONSIDER the application (in whatever format it came) and a refusal to CONSIDER it will
effectively invalidity the requirement to apply for a permit and the applicant no longer can be
held liable to comply for this. As such, once Moorabool Shire Council refused/failed to respond
it effectively lost in that regard also any right to prosecute or otherwise seek enforcement of
40 legislative or other provisions because it had demonstratingly refused to CONSIDER what was
an implied requirement of the Act/Regulation.
It is not relevant if Moorabool Shire Council in the end may have refused or granted the
application but all that is relevant is that Moorabool Shire Council had shown it had
CONSIDERED the request.
45 The various documents indicates that Moorabool Shire Council failed to respond to the various
correspondences of Mr Francis James Colosimo and by this I view that therefore Moorabool
Shire Council in that regard failed to show having applied appropriate CONSIDERATION and
hence there is no legal status for them in that regard also to litigate.
It is not relevant for this if the correspondence of Mr Francis James Colosimo was as to the
50 requirements of Moorabool Shire Council, as the onus was upon Moorabool Shire Council to
p59 9-3-2009
p60
have replied to Mr Francis James Colosimo about this and to make known what, if anything
else was required.
I did refer to STALKING, and I have to consider then also the fact that somehow there was an
order for State Trusties to be involved and also for assessment with Dr Julie Morsillo of the
5 Essendon Community Centre who is a Clinical Psychologist and a Psychiatrist as to establish if
GUARDIANSHIP should be applied.
.
Moment, we have an unrepresented party doing no more but to pursue his constitutional rights
and then all we seem to get is to declare this man possibly lacking his senses.
10 Mr G. H. Schiorel-Hlavka himself was involved in a 5-year legal battle with the Crown that he
opposed compulsory voting and numerous other constitutional issues and on 19 July 2006 the
County Court of Victoria upheld his cases against the Crown.
Mr Francis James Colosimo’s case has various aspects of the Mr G. H. Schorel-Hlavka
constitutional cases which were upheld on 19 July 2006 by the County Court of Victoria.
15 As such it imply that Defendant somehow may lack some of his faculties because he pursues
his constitutional rights seems to imply that the County Court of Victoria likewise lack
some of its faculties as after all it upheld all constitutional issues Mr G. H. Schorel-Hlavka
had placed before it.
.
20 It is understood also that a 5-2-2007 correspondence was forwarded to Mr Francis James
Colosimo from Maddocks (lawyers) acting for Moorabool Shire Council in VCAT Proceedings
No. P134/2007 stating;
QUOTE
We refer to our previous correspondence dated 30 January 2007 enclosing by way of
25 service, application for Enforcement Order under section 149A of the Planning and
Environment Act 1987.
Unfortunately it appears that VCAT Notice ‘A’ and ‘B’ together with attachment ‘C’ to the
Application were missing from this correspondence.
30
If you have any queries, please contact Kate Morris on 9288 0517.
END QUOTE
.
The document marked with (B) STATEMENT OF GROUNDS (s114) also shows;
35 QUOTE
THE FOLLOWING MUST BE COMPLETED – I certify that i have served a copy of
this Statement of Grounds on the following (where different from myself)
END QUOTE
.
40 No details as to GROUNDS were shown! As such, I view on that basis the proceedings were
instituted defective and in particular where there is an unrepresented party against whom the
proceedings are taken then VCAT/Court should make sure that so to say all the dots are on the i’s
and all the T’s are crossed by the lawyers and not that they manipulate their position to disregard
compliance, as after all the document makes clear to Mr Francis James Colosimo
45 .
The document marked with (B) STATEMENT OF GROUNDS (s114) also shows;
QUOTE
Failure to serve a copy of your Statement of Grounds on ALL OF THE ABOVE may
50 result in your being unable to appear at the Tribunal or have your objections considered.
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p61
END QUOTE
.
The document marked (A) INFORMATION (s114) SHOWS;
QUOTE
5 The attached Statement of Grounds from should assist you. The Statement should provide
sufficient information so that the issues you intend to raise can be clearly identified.
Normally VCAT does not have copies of the objections made to the Responsible Authority
so it should not be assumed that VCAT is aware of any statement you may have made
previously.
10 END QUOTE
While lawyers often getaway with breaches of legislative provisions or other court Rules the
issue is nevertheless that no details were provided under STATEMENT OF GROUNDS (B)
and the document was neither signed or dated and as such for legal purposes was not applicable.
15 As such, in particular where Mr Francis James Colosimo acted unrepresented VCAT should
have made sure that it was not, so to say, deceived by the lawyers to hold legal proceedings
unjustly.
.
It appears to me that there was some obsession by VCAT to enforce as it saw legislative
20 provisions regardless of what was lawfully required and what was indeed constitutionally
permissible.
.
Again;
QUOTE
25 Normally VCAT does not have copies of the objections made to the Responsible Authority
so it should not be assumed that VCAT is aware of any statement you may have made
previously.
END QUOTE
.
30 It should be a habit for VCAT knowing very well that most Defendants (if that is the proper
term) are more then likely unskilled in legal procedures that it ensures that they are not taken
advantage of by lawyers who institute legal proceedings.
.
From reading the various document one gains the understanding that VCAT and the Courts all
35 were disregarding proper legal procedures and one would say appeared to me to be like a pack of
vultures upon Mr Francis James Colosimo and allegedly making known that he (Mr Francis
James Colosimo) could be imprisoned and this for the man doing no more but to seek to stand
up for what he belied, rightly or wrongly, his constitutional and other common law rights.
.
40 The failure by Maddocks Lawyers to provide the relevant documentation with the required
information underlines that the OBJECTION TO JURISDICTION was disregarded by sheer
ignorance of the Courts/VCAT.
.
It is understood that during proceedings on 29 May 2008 the judge concerned made known that
45 for a counter claim as that will come when this case is completed.
.
A copy of a document that has the statement:
QUOTE
DEFENCE AND COUNTERCLAIM ON BEHALF OF FRANCES JAMES COLOSIMO
50 END QUOTE
p61 9-3-2009
p62
.
The first word is “DEFENCE” and I for one cannot accept that a judge could refuse to entertain
a defence, regardless if it may not be in the format otherwise applicable.
.
5 Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
QUOTE
"A frequent consequence of self representation is that the court must assume the burden
advocacy."
10 END QUOTE
.
As for the document in paragraph 14 referring to
QUOTE
The council is a subordinate law-making body, whose laws are as by-laws only within the
15 authority conferred upon it by the australian constitution. In this case the council has gone
beyond the limits of such authority.
END QUOTE
.
As set out below I view it has no authority to legislate as it is not a constitutional recognized
20 entity.
.
The Framers of the Constitution did make known that any powers invested in a Parliament can be
provided to a body acting under its authority, but I do not view that the conduct of Moorabool
Shire Council can be seen as to exercise such delegation of powers where for example I noted
25 that a 25 may 2006 correspondence from Moorabool Shire Council stated;
QUOTE
If no reply is received in response of this request, a Planning Infringement Notice (PIN)
may be issued. A PIN carries a penalty of $524.00 for individuals and for $1,048 for
corporations.
30 END QUOTE
.
QUOTE
Mr. REID.-On Australian questions; such questions are only Australian.
35 Dr. QUICK.-True; but I was not aware that there was any reason why we should be
afraid of submitting the interpretation of this instrument to the final Court of Appeal in this
empire.
Mr. REID.-We are not afraid, but we say that the Privy Council is an improper tribunal
with regard to such points.
40 Dr. QUICK.-Surely we cannot be afraid that this instrument will not receive a liberal and
judicious interpretation in the highest court of the empire. What reason have we for
believing that it will not be interpreted in the spirit usually shown by British jurists-men
educated in the same school and upon the same principles of common law as we are here?
Why should we be afraid of submitting the interpretation of this instrument to them?
45 Dr. COCKBURN.-Because they do not live under the same conditions, and do not
understand them.
p62 9-3-2009
p63
Dr. QUICK.-Surely we do not expect that the men who are going to interpret this
Constitution are going to exercise legislative functions? Will they not have to interpret
the Constitution according to the English language, in which it is expressed?
END QUOTE
5 .
QUOTE
Dr. COCKBURN (South Australia).-Under clause 46 the seat of a member of either
House of the Parliament of the Commonwealth becomes vacant if any work is done or
10 services rendered by him in Parliament for or on behalf of any person or corporation. The
Drafting Committee's amendment, however, will make the clause read-
Services rendered in the Parliament to any person or state.
I want to know whether the singular word "person" includes the plural, and if the word
would apply to corporations? If it does not apply to corporations, the omission of that word
15 is an alteration in substance which cannot have been intended.
Mr. HOLDER (South Australia).-I should like to ask another question. There is nothing
in the Bill empowering the Speaker or President to receive a salary for his work in either
office. Yet, it is to be presumed, as the offices are created under the Constitution, such
salary will be paid under the Constitution. Neither is there a reference to the position of the
20 Chairman of Committees. I should like to know whether sub-section (3) will prevent the
Chairman of Committees from receiving a salary?
Mr. BARTON (New South Wales).-No, there would be no prohibition in that respect.
The offices of Speaker and Chairman of Committees are not offices of profit under
the Crown. They are parliamentary offices, and Parliament has always retained a power
25 over its own Estimates to the extent that really the Speaker and President of the local
Chambers have always exercised a right to submit their own Estimates, and those
Estimates, as a rule, as far as I know in practice in my own colony, are altogether
untouched by the Government of the day. Now, these are political offices, but not offices of
profit under the Crown. I think that that is the principle that Parliament has always asserted
30 in England and elsewhere. As to the word "person," the British Interpretation Act of 1889,
which will be largely applied to the construction of this statute by the Imperial authorities,
provides that where the word "person" is used, unless the Act otherwise provides, the word
"corporation" shall be included.
Mr. HIGGINS (Victoria).-If a man agrees to get paid for services done in Parliament, or
35 for the Commonwealth, and if he does the work, and, having done the work, he resigns, is
there no penalty? Is there no punishment in such a case for a man who guarantees that he
will use his position in Parliament in order to make money, and, having made it, resigns!
Mr. BARTON (New South Wales).-No; and there is a reason for that. If I recollect
correctly there was some provision in the Bill in Adelaide in that respect, but that provision
40 was omitted in the sitting of the Convention at Sydney as a matter [start page 2449] of
policy. Mr. O'Connor suggests that it is quite probable that in such a case an action would
lie at common law. However that may be, the policy of inserting such a provision was
reversed in Sydney, and therefore the Drafting Committee could not frame any proposal to
that effect.
45 The amendments of the Drafting Committee in clauses 46 to 51 inclusive were agreed to.
p63 9-3-2009
p64
END QUOTE
.
As such, Moorabool Shire Council clearly defies a constitutional term of “person” by
separating an individual (person) from a “corporation”.
5 .
While the High Court of Australia has argued against the application of the Bill of Rights,
Magna Carta (Magna Charta), etc, this document address those issues below but now indicates
that Moorabool Shire Council had no position to fine or apply a fine because that would place it
as being the decision maker that an offence had occurred and under the constitutional system of
10 constitutional parliaments no parliament can overstep in its legislation the separation of executive
and judiciary. Hence, if Moorabool Shire Council were to claim to act on behalf or under
authority of the State executive (State Government) then it has no position to apply any fines as it
should have left this to the courts to determine if there was any breach in the first place.
The notion of issuing a fine is an assumption of guilt.
15 .
On 22 August 2008 Mr G. H. Schorel-Hlavka was issued with a infringement notice from
Banyule City Council for exceeding a 3-hour parking limit and despite a request to withdraw it
counsel refused to do so and wrote that he had exceeding the 3-hour parking limit by failing to
have removed his vehicle from 11.55am till 2.24Pm.
20 Mr G. H. Schorel-Hlavka appealed this decision but the appeal was denied and it was made
clear that no further appeal was possible and the matter would go to court. Mr G. H. Schorel-
Hlavka then wrote to Banyule City Council that as a ratepayer he objected to their unlawful
conduct and that the litigation was doomed to fail because 2.29 minutes in his understanding was
less then 3-hours, but they could prove in Court otherwise.
25 Banyule City Council then responded that they accepted the last correspondence as an appeal
and that the infringement notice was withdrawn.
.
What this incident demonstrates is the sheer arrogance of a council to inflict an infringement
notice to pay a fine even so it was clear that at no time any offence was committed. Yet, the law
30 coordinator had dismissed the first appeal despite of this.
This underlines the danger of where any kind of authority is so to say JUDGE AND JURY
where it can manipulate its powers and basically hold people to ransom to pay or face to loose a
lot of money on income if one has to take a day of work, etc.
In this case they took on the wrong person in Mr G. H. Schorel-Hlavka, but all others who were
35 then fined wouldn’t have known they were wrongly booked. It is this kind of conduct that is in
fact still prohibited by the Imperial Acts Application Act 1980, but most people are so to say
conned in paying the infringement notice regardless of their legal rights.
.
VCAT and any court rather then to take offence against a Defendant seeking to rely upon the
40 legal principles embed in the constitution and also clearly in Victorian law should rather take
offence for being used as some tool to vandalise a persons constitutional and/or legal rights and
to manipulate VCAT/the courts for this purpose contrary to providing JUSTICE.
.
index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635
45 QUOTE 070520 posting
I am very disturbed to find the following of a quotation to have found this discussion;
.
QUOTE
p64 9-3-2009
p65
McHUGH J: I understand that and persons who have not had full legal training often think
of Magna Charta and the Bill of Rights as fundamental documents which control
governments, but they do not.
END QUOTE
5 And
QUOTE
But Parliament - some people would regard it as regrettable - can, in effect, do what it
likes. As it is said, some authorities could legislate to have every blue-eyed baby killed
if it wanted to.
10 END QUOTE
.
Again, while the High Court of Australia made its comments and even purported that the Federal
Parliament could legislate to kill every blue eyed baby, it must be clear that this is sheer and utter
nonsense and the principles of law are there for all to enjoy.
15 .
QUOTE Mr. CLARK.-
for the protection of certain fundamental rights and liberties which every individual
20 citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
25 the National Australasian Convention)
QUOTE Mr. ISAACS.-

The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
30 END QUOTE
QUOTE
Version No. 011
Imperial Acts Application Act 1980
Act No. 9426/1980
35 Version incorporating amendments as at 1 July 1997
END QUOTE
.
QUOTE
[1688] I William and Mary Sess. II (Bill of Rights) c. II
40 END QUOTE
And
QUOTE
11. And excessive fines have been imposed; and illegal and cruel punishments
inflicted.
45 12. And several grants and promises made of fines and forfeitures, before any
conviction or judgement against the persons, upon whom the same were to be
levied.
p65 9-3-2009
p66
END QUOTE
.
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
5 EITHER WE HAVE THE RULE OF LAW OR WE DON’T!
.
In view of the absurdity in the above mentioned High Court of Australia statement I view this
matter needs to be explored more comprehensively as I have set out below, as well as that I
include the Victorian legislation which underlines the same being applicable.
10 .
With the issue of COMMON LAW and its application it is obvious that the Framers of the
Constitution had different views as to when COMMON LAW could or could not apply and for
this a lengthy list of quotation has been included below as to give the Reader a perception of the
context it was use in regard of different issues/subjects.
15 .
QUOTE
Version No. 011
Act No. 9426/1980
20 Version incorporating amendments as at 1 July 1997
END QUOTE
And
QUOTE
Division 3—Justice and Liberty
25 [1297] 25 Edward I (Magna Carta) c. XXIX

No freeman shall be taken or imprisoned, or be disseised of his freehold, or
liberties or free customs, or be outlawed 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
30 will not deny or defer to any man either justice or right.
[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 nor put out of his freehold, nor of his franchises nor free
custom, unless it be by the law of the land; it is accorded assented, and stablished,
35 that from henceforth none shall be taken by petition or suggestion made to our
Lord the King, or to his council, unless it be by indictment or presentment of good
and lawful people of the same neighbourhood where such deeds be done, in due
manner, or by process made by writ original at the common law; nor that none be
out of his franchises, nor of his freeholds, unless he be duly brought into answer,
40 and forejudged of the same by the course of the law; and if any thing be done
against the same, it shall be redressed and holden for none.
[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, nor imprisoned, nor disinherited, nor put to
45 death, without being brought in answer by due process of the law.
p66 9-3-2009
p67

. . . It is assented and accorded, for the good governance of the commons, that no
man be put to answer without presentment before justices, or matter of record, or
by due process and writ original, according to the old law of the land; And it any
5 thing from henceforth be done to the contrary, it shall be void in the law, and
holden for error.
END QUOTE
.
QUOTE
10 Version No. 011
Act No. 9426/1980
Version incorporating amendments as at 1 July 1997
END QUOTE
15 And
QUOTE
PART II—TRANSCRIBED ENACTMENTS
8. Transcribed enactments
The enactments referred to in section 3 of this Act shall have effect and be
20 construed as provided by that section and are set out in this Part under the
Divisions mentioned in section 1 as being included in Part II and such Divisions
shall be deemed to be Divisions of this Part.
Division 1—Elections
[1275] 3 Edward I (State of Westminster the First) C.V.

25 And because elections ought to be free, the King commandeth upon great
forfeiture, that no man by force of arms, nor by malice, or menacing, shall disturb
any to make free election.
Division 2—Habeas Corpus
[1640] 16 Charles I c. X
30 An Act for the regulating of the privy council, and for taking away the court
commonly called the star-chamber.
Whereas by the great charter many times confirmed in parliament, it is enacted,
That no freeman shall be taken or imprisoned, or disseised of his freehold or
liberties or free customs, or be outlawed or exiled or otherwise destroyed, and that
35 the King will not pass upon him, or condemn him; but by lawful judgement of his
peers, or by the law of the land:
(2) and by another statute made in the fifth year of the reign of King Edward the
Third, it is enacted, That no man shall be attached by any accusation, nor
forejudged of life or limb, nor his lands, tenements, goods or chattels seized into
40 the King's hands, against the form of the great charter and the law of the land:
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(3) and by another statute made in the five and twentieth year of the reign of the
same King Edward the Third, it is accorded, assented and established, That none
shall be taken by petition or suggestion made to the King, or to his council, unless
it be by indictment or presentment of good and lawful people of the same
5 neighbourhood where such deeds be done, in due manner, or by proceeds made by
writ original at the common law, and that none be put out of his franchise or
freehold, unless he be duly brought in to answer, and forejudged of the same by the
course of the law, and if any thing be done against the same, it shall be redressed
and holden for none: (4) and by another statute made in the eight and twentieth
10 year of the reign of the same King Edward the Third, it is amongst other things
enacted, That no man of what estate or condition forever he be, shall be put out of
his lands or tenements, nor taken, nor imprisoned, nor disinherited, without being
brought in to answer by due process of law: (5) and by another statute made in the
two and fortieth year of the reign of the said King Edward the Third, it is enacted,
15 That no man be put to answer, without presentment before justices, or matter of
record, or by due process and writ original, according to the old law of the land,
and if any thing be done to the contrary, it shall be void in law, and holden for
error: (6) and by another statute made in the six and thirtieth year of the same King
Edward the Third, it is amongst other things enacted, That all pleas which shall be
20 pleaded in any courts before any of the King's justices, or in his other places, or
before any of his other ministers, or in the courts and places of any other lords
within the realm, shall be entered and enrolled in Latin: (7) and whereas by the
statute made in the third year of King Henry the Seventh, power is given to the
chancellor, the lord treasurer of England for the time being, and the keeper of the
25 King's privy seal, or two of them, calling unto them a bishop and a temporal lord
of the King's most honourable council, and the two chief justices of the King's
bench and common pleas for the time being, or other two justices in their absence,
to proceed as in that act is expressed, for the punishment of some particular
offences therein mentioned: (8) and by the statute made in the one and twentieth
30 year of King Henry the Eighth, the president of the council is associated to join
with the lord chancellor and other judges in the said statute of the Third of Henry
the Seventh mentioned: (9) but the said judges have not kept themselves to the
points limited by the said statute, but have undertaken to punish where no law doth
warrant, and to make decrees for things having no such authority, and to inflict
35 heavier punishments than by any law is warranted.
II. And for asmuch as all matters examinable or determinable before the said judges,
or in the court commonly called the star-chamber, may have their proper remedy
and redress, and their due punishment and correction, by the common law of the
land, and in the ordinary course of justice elsewhere: (2) and forasmuch as the
40 reasons and motives inducing the erection and continuance of that court do now
cease: (3) and the proceedings, censures and decrees of that court, have by
experience been found to be an intolerable burthen to the subjects, and the means
to introduce an arbitrary power and government: (4) and forasmuch as the council-
table hath of late time assumed unto itself a power to intermeddle in civil causes
45 and matters only of private interest between party and party, and have adventured
to determine of the estates and liberties of the subject, contrary to the law of the
land and the rights and privileges of the subject, by which great and manifold
mischiefs and inconveniencies have arisen and happened, and much incertainty by
means of such proceedings hath been conceived concerning mens rights and
50 estates; for settling whereof, and preventing the like in time to come.
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III. Be it ordained and enacted by the authority of this present parliament, That the said
court commonly called the star-chamber, and all jurisdiction, power and authority
belonging unto, or exercised in the same court, or by any of the judges, officers or
ministers, thereof, be from the first day of August in the year of our Lord God one
5 thousand six hundred forty and one, clearly and absolutely dissolved, taken away
and determined: (2) and that from the said first day of August neither the lord
chancellor, or keeper of the great seal of England, the lord treasurer of England,
the keeper of the King's privy seal, or president of the council, nor any bishop,
temporal lord, privy counsellor or judge, or justice whatsoever, shall have any
10 power or authority to hear, examine or determine any matter or thing whatsoever,
in the said court commonly called the star-chamber, or to make, pronounce or
deliver any judgement, sentence, order or decree, or to do any judicial or
ministerial act in the said court: (3) and that all and every act and acts of
parliament, and all and every article, clause and sentence in them, and every of
15 them, by which any jurisdiction, power or authority is given, limited or appointed
unto the said court commonly called the star-chamber, or unto all or any of the
judges, officers or ministers thereof, or for any proceedings to be had or made in
the said court, or for any matter or thing to be drawn unto question, examined or
determined there, shall for so much as concerneth the said court of star-chamber,
20 and the power and authority thereby given unto it, be from the said first day of
August repealed, and absolutely revoked and made void.
IV. And be it likewise enacted, That the like jurisdiction now used and exercised in the
court before the president and council in the marches of Wales: (2) and also in the
court before the president and council established in the northern parts: (3) and
25 also in the court commonly called the court of the duchy of Lancaster, held before
the chancellor and council of that court: (4) and also in the court of exchequer of
the county palatine of Chester, held before the chamberlain and council of that
court: (5) the like jurisdiction being exercised there, shall from the said first day of
August one thousand six hundred forty and one, be also repealed and absolutely
30 revoked and made void; any law, prescription, custom or usage, or the said statute
made in the third year of King Henry the Seventh, or the statute made in one and
twentieth of Henry the Eighth, or any act or acts of parliament heretofore had or
made, to the contrary thereof in any wise notwithstanding: (6) and that from
henceforth no court, council or place of judicature, shall be erected, ordained,
35 constituted or appointed within this realm of England, or dominion of Wales,
which shall have, use or exercise the same or the like jurisdiction as is or hath been
used, practised or exercised in the said court of star-chamber.
V. Be it likewise declared and enacted by authority of this present parliament, That
neither his Majesty, nor his privy council, have or ought to have any jurisdiction,
40 power or authority, by English bill, petition, articles, libel or any other arbitrary
way whatsoever, to examine or draw into question, determine or dispose of the
lands, tenements, hereditaments, goods or chattels of any of the subjects of this
kingdom, but that the same ought to be tried and determined in the ordinary courts
of justice, and by the ordinary course of the law.
45 VI. And be it further provided and enacted, That if any lord chancellor, or keeper of
the great seal of England, lord treasurer, keeper of the King's privy seal, president
of the council, bishop, temporal lord, privy counsellor, judge or justice whatsoever,
shall offend, or do any thing contrary to the purport, true intent and meaning of this
law, then he or they shall for such offence forfeit the sum of five hundred pounds
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of lawful money of England unto any party grieved, his executors or

administrators, who shall really prosecute for the same, and first obtain judgement
thereupon, to be recorded in any court of record at Westminster, by action of debt,
bill, plaint or information, wherein no essoin, protection, wager of law, aid prayer,
5 privilege, injunction or order of restraint, shall be in any wise prayed, granted, or
allowed, nor any more than one imparlance: (2) and if any person against whom
any such judgement or recovery shall be had as aforesaid, shall after such
judgement or recovery offend again in the same, then he or they for such offence
shall forfeit the sum of one thousand pounds of lawful money of England unto any
10 party grieved, his executors or administrators, who shall really prosecute for the
same, and first obtain judgement thereupon, to be recorded in any court of record
at Westminster, by action of debt, bill, plaint or information, in which no ession,
protection, wager of law, aid prayer, privilege, injunction or order of restraint shall
be in any wise prayed, granted or allowed, nor any more than one imparlance: (3)
15 and if any person against whom any such second judgement or recovery shall be
had as aforesaid, shall after such judgement or recovery offend again in the same
kind, and shall be thereof duly convicted by indictment, information, or any other
lawful way or means, that such person so convicted shall be from thenceforth
disabled, and become by virtue of this act incapable ipso facto, to bear his and their
20 said office and offices respectively: (4) and shall be likewise disabled to make any
gift, grant, conveyance, or other disposition of any of his lands, tenements,
hereditaments, goods or chattels, or to take any benefit of any gift, conveyance or
legacy to his own use.
VII. And every person so offending shall likewise forfeit and lose unto the part grieved,
25 by any thing done contrary to the true intent and meaning of this law, his treble
damages which he shall sustain and be put unto by means or occasion of any such
act or thing done, the same to be recovered in any of his Majesty's courts of record
at Westminster, by action of debt, bill, plaint or information, wherein no ession,
protection, wager of law, aid prayer, privilege, injuction or order of restraint, shall
30 be in any wise prayed, granted or allowed, nor any more than one imparlance.
VIII. And be it also provided and enacted, That if any person shall hereafter be
committed, restrained of his liberty, or suffer imprisonment, by the order or decree
of any such court of star-chamber, or other court aforesaid, now or at any time
hereafter, having or pretending to have the same or like jurisdiction, power or
35 authority to commit or imprison as aforesaid: (2) or by the command or warrant of
the King's majesty, his heirs or successors, in their own person, or by the command
or warrant of the council board, or of any of the lords or others of his Majesty's
privy council:
(3) that in every such case every person so committed, restrained of his liberty, or
40 suffering imprisonment, upon demand or motion made by his counsel, or other
imployed by him for that purpose, unto the judges of the court of King's bench or
common pleas, in open court, shall without delay, upon any pretence whatsoever,
for the ordinary fees usually paid for the same, have forthwith granted unto him a
writ of habeas corpus, to be directed generally unto all and every sheriff, gaoler,
45 minister, officer or other person in whose custody the party committed or
restrained shall be: (4) and the sheriff, gaoler, minister, officer or other person in
whose custody the part so committed or restrained shall be, shall at the
return of the said writ, and according to the command thereof, upon due and
convenient notice thereof given unto him, at the charge of the party who requireth
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or procureth such writ, and upon security by his own bond given, to pay the charge
of carrying back the prisoner, if he shall be remanded by the court to which he
shall be brought, as in like cases that been used, such charges of bringing up and
carrying back the prisoner to be always ordered by the court, if any difference shall
5 arise thereabout, bring or cause to be brought the body of the said party so
committed or restrained unto and before the judges or justices of the said court
from whence the same writ shall issue, in open court: (5) and shall then likewise
certify the true cause of such his detainer or imprisonment, and thereupon the
court, within three court days after such return made and delivered in open court,
10 shall proceed to examine and determine whether the cause of such commitment
appearing upon the said return be just and legal, or not, and shall thereupon do
what to justice shall apertain, either be delivering, bailing or remanding the
prisoner: (6) and if any thing shall be otherwise wilfully done or omitted to be
done by any judge, justice, officer or other person afore-mentioned, contrary to the
15 direction and true meaning hereof, that then such persons so offending shall forfeit
to the party grieved his treble damages, to be recovered by such means, and in such
manner as is formerly in this act limited and appointed for the like penalty to be
sued for and recovered.
IX. Provided always, and be it enacted, That this act and the several clauses therein
20 contained shall be taken and expounded to extend only to the court of star-
chamber: (2) and to the said courts holden before the president and council in the
marches of Wales: (3) and before the president and council in the northern parts:
(4) and also to the court commonly called the court of the duchy of Lancaster,
holden before the chancellor and council of that court: (5) and also in the court of
25 exchequer of the county palatine of Chester, held before the chamberlain and
council of that court: (6) and to all courts of like jurisdiction to be hereafter
erected, ordained, constituted or appointed as aforesaid, and to the warrants and
directions of the council board, and to the commitments, restraints and
imprisonment of any person or persons made, commanded or awarded by the
30 King's majesty, his heirs or successors, in their own person, or by the lords and
others of the privy council, and every one of them.
X. And lastly, provided, and be it enacted, That no person or persons shall be sued,
impleaded, molested or troubled for any offence against this present act, unless the
party supposed to have so offended shall be sued or impleded for the same within
35 two years at the most after such time wherein the said offence shall be committed.
[1679] 31 Charles II c. II ss 1-9, 11-13,
15-20
An Act for the better secureing the Liberty of the Subject and for Prevention of
Imprisonments beyond the Seas.
40 1. Whereas great delayes have beene used by sheriffes gaolers and other officers to
whose custody any of the King's subjects have beene committed for criminall or
supposed criminall matters in makeing returnes writts of habeas corpus to them
directed by standing out an alias and pluries habeas corpus and sometimes more
and by other shifts to avoid their yeilding obedience to such writts contrary to their
45 duty and the knowne lawes of the land whereby many of the King's subjects have
beene and hereafter may be long detained in prison in such cases where by law
they are baylable to their great charge and
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vexation. For the prevention whereof and the more speedy releife of all persons
imprisoned for any such criminall or supposed criminall matters bee it enacted by
the King's most excellent Majestie by and with the advice and consent of the lords
spirituall and temporall and commons in this present Parlyament assembled and by
5 the authoritie thereof that whensoever any person or persons shall bring any habeas
corpus directed unto any sheriffe or sheriffes gaoler or other person whatsoever for
any person in his or their custody and the said writt shall be served upon the said
officer or left at the goale or prison with any of the under-officers under-keepers or
deputy of the said officers or keepers that the said officer or officers his or their
10 under-officers under-keepers or deputyes shall within three dayes after the service
thereof as aforesaid (unlesse the committment aforesaid were for treason or fellony
plainely and specially expressed in the warrant of committment) upon payment or
tender of the charges of bringing the said prisoner to be ascertained by the judge or
court that awarded the same and endorsed upon the said writt not exceeding twelve
15 pence per mile and upon security given by his owne bond to pay the charges of
carrying backe the prisoner if he shall bee remanded by the court or judge to which
he shall be brought according to the true intent of this present Act and that he will
not make any escape by the way make returne of such writt or bring or cause to be
brought the body of the partie soe committed or restrained unto or before the lord
20 chauncellor or lord keeper of the great seale of England for the time being or the
judges or barons of the said court from whence the said writt shall issue or unto
and before such other person and persons before whome the said writt is made
returnable according to the command thereof, and
shall likewise then certifie the true causes of his detainer or imprisonment unlesse
25 the committment of the said partie be in any place
beyond the distance of twenty miles from the place or places where such court or
person is or shall be resideing and if beyond the distance of twenty miles and not
above one hundred miles then within the space of ten dayes and if beyond the
distance of one hundred miles then within the space of twenty dayes after such
30 delivery aforesaid and not longer.
2. And to the intent that noe sheriffe gaoler or other officer may pretend ignorance of
the import of any such writt bee it enacted by the authoritie
aforesaid that all such writts shall be marked in this manner Per statutum tricesimo
primo Caroli Scundi Regis and shall be signed by the person
35 that awards the same. And if any person or persons shall be or stand committed or
detained asaforesaid for any crime unlesse for treason or fellony plainely expressed
in the warrant of committment in the vacation time and out of terme it shall and
may be lawfull to and for the person or persons soe committed or detained (other
then persons convict or in execution) by legall processe or any one on his or their
40 behalfe to appeale or complaine to the lord chauncellour
or lord keeper or any one of his Majestyes justices either of the one bench or of the
other or the barons of the Exchequer of the degree of the coife and the said lord
chauncellor lord keeper justices or barons or any of them upon view of the copy or
copies of the warrant or warrants of committment and detainer or otherwise upon
45 oath made that such copy or copyes were denyed to be given by such person or
persons in whose custody the prisoner or prisoners is or are detained are hereby
authorized and required upon request made in writeing by such person or persons
or any on his her or their behalfe attested and subscribed by two witnesses that
were present at the delivery of the same to award and grant an habeas corpus under
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the seale of such court whereof he shall then be one of the judges to be directed to
the officer or officers in whose custodie the party soe committed or detained shall
be returnable immediate before the said lord chauncellor or lord keeper or such
justice baron or any other justice or baron of the degree of the coife of any of the
5 said
courts and upon service thereof as aforesaid the officer or officers his or their
under-officer or under-officers under-keeper or under-keepers or their deputy in
whose custodie the partie is soe committed or detained shall within the times
respectively before limitted bring such prisoner or prisoners before the said lord
10 chauncellor or lord keeper or such justices barons or one of them before whome
the said writt is made returnable and in case of his absence before any other of
them with the returne of such writt and the true causes of the committment and
detainer and thereupon within two dayes after the partie shall be brought before
them the said lord chauncellor or lord keeper or such justice or baron before
15 whome the prisoner shall be brought as aforesaid shall discharge the said prisoner
from his
imprisonment takeing his or their recognizance with one or more suretie or sureties
in any summe according to their discretions haveing reguard to the quality of the
prisoner and nature of the
20 offence for his or their appearance in the Court of Kings Bench the terme
following or at the next assizes sessions or generall goale-delivery of and for such
county city or place where the committment was or where the offence was
committed or in such other court where the said offence is properly cognizable as
the case shall require and then shall certifie the said writt with the returne thereof
25 and the said recognizance or recognizances into the said court where such
appearance is to be made unlesse it shall appeare unto the said lord chauncellor or
lord keeper or justice or justices or baron or barons that the partie soe committed is
detained upon a legall processe order or warrant out of some court that hath
jurisdiction of criminall matters, or by some warrant signed and sealed with the
30 hand and seale of any of the said justices or barons or some justice or justices of
the peace for such matters or offences for the which by the law the prisoner is not
baileable.
3. Provided alwayes and bee it enacted that if any person shall have wilfully
neglected by the space of two whole termes after his imprisonment to pray a
35 habeas corpus for his enlargement such person soe wilfully neglecting shall not
have any habeas corpus to be granted in vacation time in pursuance of this Act.
4. And bee it further enacted by the authoritie aforesaid that if any officer or officers
his or their under-officer or under-officers under-keeper or under-keepers or
deputy shall neglect or refuse to make the returnes aforesaid or to bring the body or
40 bodies of the prisoner or prisoners according to the command of the said writt
within the
respective times aforesaid or upon demand made by the prisoner or person in his
behalfe shall refuse to deliver or within the space of six houres after demand shall
not deliver to the person soe demanding a true copy of the warrant or warrants of
45 committment and detayner of such prisoner, which he and they are hereby required
to deliver accordingly all and every the head goalers and keepers of such prisons
and such other person in whose custodie the prisoner shall be detained shall
for the first offence forfeite to the prisoner or partie grieved the summe of one
hundred pounds and for the second offence the summe of two hundred pounds and
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shall and is hereby made incapeable to hold or execute his said office, the said
penalties to be recovered by the prisoner or partie grieved his executors or
administrators against such offender his executors or administrators by any action
of debt suite bill plaint or information in any of the King's courts at Westminster
5 wherein noe essoigne protection priviledge injunction wager of law or stay of
prosecution by non vult ulterius prosequi or otherwise shall bee admitted or
allowed or any more than one imparlance, and any recovery or judgement at the
suite of any partie grieved shall be a sufficient conviction for the first offence and
any after recovery or judgement at the suite of a partie grieved for any offence
10 after the first judgement shall bee a sufficient conviction to bring the officers or
person within the said penaltie for the second offence.
5. And for the prevention of unjust vexation by reiterated committments for the same
offence bee it enacted by the authoritie aforesaid that noe person or persons which
shall be delivered or sett at large upon any habeas corpus shall at any time
15 hereafter bee againe imprisoned or committed for the same offence by any person
or persons whatsoever other then by the legall order and processe of such court
wherein he or they shall be bound by recognizance to appeare or other court
haveing jurisdiction of the cause and if any other
person or persons shall knowingly contrary to this Act recommit or imprison or
20 knowingly procure or cause to be recommitted or imprisoned for the same offence
or pretended offence any person or persons delivered or sett at large as aforesaid or
be knowingly aiding or assisting therein then he or they shall forfeite to the
prisoner or party grieved the summe of five hundred pounds any colourable
pretence or variation in the warrant or warrants of committment notwithstanding to
25 be recovered as aforesaid.
6. Provided alwayes and bee it further enacted that if any person or persons shall be
committed for high treason or fellony plainely and specially expressed in the
warrant of committment upon his prayer or petition in open court the first weeke of
the terme or first daye of the sessions of oyer and terminer or generall goale
30 delivery to be brought to his tryall shall not be indicted sometime in the next terme
sessions of oyer and terminer or generall
goale delivery after such committment it shall and may be lawfull to and for the
judges of the Court of Kings Bench and justices of oyer and terminer or generall
goale delivery and they are hereby required upon motion to them made in open
35 court the last daye of the terme sessions or goale-delivery either by the prisoner or
any one in his behalfe to sett at liberty the prisoner upon baile unlesse it appeare to
the judges and justices upon oath made that the witnesses for the King could not be
produced the same terme sessions or
generall goale-delivery. And if any person or persons committed as aforesaid upon
40 his prayer or petition in open court the first weeke of the terme or first daye of the
sessions of oyer and terminer or generall goale delivery to be brought to his tryall
shall not be indicted and tryed the second terme sessions of oyer and terminer or
generall goale delivery after his committment or upon his tryall shall be acquitted
he shall be discharged from his imprisonment.
45 7. Provided alwayes that nothing in this Act shall extend to discharge out of prison
any person charged in debt or other action or with processe in any civill cause but
that after he shall be discharged of his imprisonment for such his criminall offence
he shall be kept in custodie according to law for such other suite.
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8. Provided alwaies and bee it enacted by the authoritie aforesaid that if any person or
persons subject of this realme shall be committed to any prison or in custodie of
any officer or officers whatsoever for any criminall or supposed criminall matter
that the said person shall not be removed from the said prison and custody into the
5 custody of any other officer or officers unlesse it be by habeas corpus or some
other legall writt or where the prisoner is delivered to the constable or other
inferiour officer to carry such prisoner to some common goale or where any person
is sent by-order of any judge of assize or justice of the peace to any common
worke-house or house of correction or where the prisoner is removed from one
10 prison or place to another within the same county in order to his or her tryall or
discharge in due course of law or in case of suddaine fire or infection or other
necessity and if any person or persons shall after such committment aforesaid
make out and signe or countersigne any warrant or warrants for such removeall
aforesaid contrary to this Act as well he that makes or signes or countersignes such
15 warrant or warrants as the officer or officers that obey or execute the same
shall suffer and incurr the paines and forfeitures in this Act before-mentioned both
for the first and second offence respectively to be recovered in manner aforesaid
by the partie grieved.
9. Provided alsoe and bee it further enacted by the authoritie aforesaid that it shall
20 and may be lawfull to and for any prisoner and prisoners as aforesaid to move and
obtaine his or their habeas corpus as well out of the High Court of Chauncery or
Court of Exchequer as out of the courts of Kings Bench or Common Pleas or either
of them
and if the said lord chauncellor or lord keeper or any judge or judges baron or
25 barons for the time being of the degree of the coife of any of the courts aforesaid in
the vacation time upon view of the copy or copyes of the warrant or warrants of
committment or detainer or upon oath made that such copy or copyes were denyed
as aforesaid shall deny any writt of habeas corpus by this Act required to be
granted being moved for as aforesaid they shall severally forfeite to the
30 prisoner or partie grieved the summe of five hundred pounds to be recovered in
manner aforesaid.
* * * * *
11. And for preventing illegall imprisonments in prisons beyond the seas bee it further
enacted by the authoritie aforesaid that noe subject of this realme that now is or
35 hereafter shall be an inhabitant or resiant of this Kingdome of
England . . . . shall or may be sent prisoner
into . . . . any . . . . places beyond the seas which are or at any time hereafter shall
be within or without the dominions of his Majestie his heires or successors and that
every such imprisonment is hereby enacted and adjudged to be illegall and that if
40 any of the said subjects now is or hereafter shall bee soe imprisoned every such
person and persons soe imprisoned shall and may for every such imprisonment
maintaine by vertue of this Act
an action or actions of false imprisonment in any of His Majesteyes courts of
record against the person or persons by whome he or she shall be soe committed
45 detained imprisoned sent prisoner or transported contrary to the true meaning of
this Act and against all or any person or persons that shall frame contrive write
seale of countersigne any warrant or writeing for such committment detainer
imprisonment or transportation or shall be adviseing aiding or assisting in the same
or any of them and the plaintiffe in every such action shall have judgement to
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recover his . . . costs besides damages which damages soe to be given shall not be
lesse then five hundred pounds in which action noe delay stay or stopp of
proceeding by rule order or command nor noe injunction protection or privilege
whatsoever . . . shall be allowed excepting such rule of the court wherein the action
5 shall depend made in open court as shall bee thought in justice necessary for
speciall cause to be expressed in the said rule and the person or persons who shall
knowingly frame contrive write seale or countersigne any warrant
for such committment detainer or transportation or shall soe committ detaine
imprison or transport any person or persons contrary to this Act or be any wayes
10 adviseing aiding or assisting therein being lawfully convicted thereof shall be
disabled from thence-forth to beare any office of trust or proffitt within the said
realme of England . . . . . or any of the islands territories or dominions thereunto
belonging and shall incurr and sustaine the paines penalties and forfeitures limitted
ordained and provided in the Statute of provision and premunire made in the
15 sixteenth yeare of King Richard the Second and be incapeable of any pardon from
the King his heires or successors of the said forfeitures losses or disabilities or any
of them.
12. Provided alwayes that nothing in this Act shall extend to give benefitt to any
person who shall by contract in writeing agree with any merchant or owner of any
20 plantation or other person whatsoever to be transported to any parts beyond seas
and receive earnest upon such agreement although that afterwards such person
shall renounce such contract.
13. Provided alwayes and be it enacted that if any person or persons lawfully
convicted of any felony shall in open court pray to be transported beyond the seas
25 and the court shall thinke fitt to leave him or them in prison for that purpose such
person or persons may be transported into any parts beyond the seas this Act or
any thing contained therein to the contrary notwithstanding.
* * * * *
15. Provided alsoe that if any person or persons at any time resiant in this realme shall
30 have committed any capitall offence in Scotland or Ireland or any of the islands or
forreigne plantations of the King his heires or successors where he or she ought to
be tryed for such offence such person or persons may be sent to such place there to
receive such tryall in such manner as the same might have beene used before the
makeing of this Act anything herein contained to the contrary notwithstanding.
35 16. Provided alsoe and bee it enacted that noe person or persons shall be sued
impleaded molested or troubled for any offence against this Act unlesse the partie
offending be sued or impleaded for the same within two yeares at the most after
such time wherein the offence shall be committed in case the partie grieved shall
not be then in prison and if he shall be in prison then within the space of two
40 yeares after the decease of the person imprisoned or his or her delivery out of
prison which shall first happen.
17. And to the intent noe person may avoid his tryall at the assizes or generall goale-
delivery by procureing his removeall before the assizes at such time as he cannot
be brought backe to receive his tryall there bee it enacted that after the assizes
45 proclaimed for that country where the prisoner is detained noe person shall be
removed from the common goale upon any habeas corpus granted in persuance of
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this Act but upon any such habeas corpus shall be brought before the judge of
assize in open court who is thereupon to doe what to justice shall appertaine.
18. Provided neverthelesse that after the assizes are ended any person or persons
detained may have his or her habeas corpus according to the direction and
5 intention of this Act.
19. And bee it also enacted by the authoritie aforesaid that if any information suite or
action shall be brought or exhibited against any person or persons for any offence
committed or to be committed against the forme of this law it shall be lawfull for
such defendants to pleade the generall issue that they are not guilty or that they
10 owe nothing and to give such speciall matter in evidence to the jury that shall try
the same which matter being pleaded had beene good and sufficient matter in law
to have discharged the said defendant or defendants against the said information
suite or action and the said matter shall be then as availeable to him or them to all
intents and purposes as if he or they had sufficiently pleaded sett forth or alledged
15 the same matter in barr or discharge of such information suite or action.
20. And because many times persons charged with petty treason or felony or as
accessaries thereunto are committed upon suspicion onely whereupon they are
baileable or not according as the circumstances makeing out the suspicion are more
or lesse weighty which are best knowne to the justices of peace that committed the
20 persons and have the examinations before them or to other justices of the peace in
the county: Bee it therefore enacted that where any person shall appeare to be
committed by any judge or justice of the peace and charged as accessary before the
fact to any petty treason of felony or upon suspicion thereof or with suspicion of
petty treason or felony shall be plainely and specially expressed in the warrant of
25 committment that such person shall not be removed or bailed by vertue of this Act
or in any other manner then they might have beene before the makeing of this Act.
[1816] 56 George III c. C
An Act for more effectually securing the Liberty of the Subject.
1. Whereas the writ of habeas corpus hath been found by experience to be an
30 expeditious and effectual method of restoring any person to his liberty, who hath
been unjustly deprived thereof: And whereas extending the remedy of such writ,
and enforcing obedience thereunto, and preventing delays in the execution thereof,
will be advantageous to the public: And whereas the provisions made by an Act
passed in England in the thirty-first year of King Charles the Second,
35 intituled "An Act for the better securing the liberty of the subject, and for
prevention of imprisonment beyond the seas" . . . . . . . . . . . . . . .only extend to
cases of commitment or detainer for criminal or supposed criminal matter: Be it
therefore
enacted . . . . . . . . . . . . . . . . .that where any person shall be confined or restrained
40 of his or her liberty (otherwise than for some criminal or supposed criminal matter,
and exept persons imprisoned for debt or by process in any civil suit) within that
part of Great Britain called England,
. . . . . . . . . . . . . . it shall and may be lawful for any one of the barons of the
Exchequer, of the degree of the coif, as well as for any one of the justices of one
45 bench or the other, . . . . . . . . . . . . . . . . . . and they are hereby required, upon
complaint made to them by or on the behalf of the person so confined or restrained,
if it shall appear by affidavit or affirmation (in cases where by law an affirmation
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is allowed) that there is a probable and reasonable ground for such complaint, to
award in vacation time a writ of habeas corpus ad subjiciendum, under the seal of
such court, whereof he or they shall then be judges or one of the judges, to be
directed to the person or persons in whose custody or power the party so confined
5 or restrained shall be, returnable immediately before the person so awarding the
same, or before any other judge of the court under the seal of which the said writ
issued.
2. And be it further enacted by the authority aforesaid, that if the person or persons to
whom any writ of habeas corpus shall be directed according to the provision of this
10 Act, upon service of such writ, either by the actual delivery thereof to him, her, or
them, or by leaving the same at the place where the party shall be confined or
restrained with any servant or agent of the person or persons so confining or
restraining shall wilfully neglect or refuse to make a return to pay obedience
thereto, he, she, or they shall be deemed guilty of a contempt of the court, under
15 the seal whereof such writ shall have issued; and it shall be lawful to and for the
said justice or baron, before whom such writ shall be returnable, upon proof made
by affidavit of wilful disobedience of the said writ, to issue a warrant under his
hand and seal for the apprehending and bring in before him, or before some other
justice or baron of the same court, the person or persons so wilfully disobeying the
20 said writ, in order to his, her, or their being bound to the King's Majesty with two
sufficient sureties, in such sum as in the warrant shall be expressed, with condition
to appear in the court of which the said justice or baron is a judge, at a day in the
ensuing term to be mentioned in the said warrant, to answer the matter of contempt
with which he, she or they are charged; and in case of neglect or refusal to become
25 bound as aforesaid, it shall be lawful for such justice or baron to commit such
person or persons so neglecting or refusing to the jail or prison of the court of
which such justice or baron shall be a judge thereto remain until he, she, or they
shall have become bound as aforesaid, or shall be discharged by order of the court
in term time, or by order of one of the justices or barons of the court in vacation;
30 and the recognizance or recognizance to be taken thereupon shall be returned and
filed in the same court, and shall continue in force until the matter of such
contempt shall have been heard and determined, unless sooner ordered by the court
to
be discharged: Provided, that if such writ shall be awarded so late in the vacation
35 by any one of the said justices or barons, that, in his opinion, obedience thereto
cannot be conveniently paid during such vacation the same shall and may, at his
discretion, be made returnable in the court of which the said justice or baron shall
be a justice
or baron, at a day certain in the next term; and
40 the said court shall and may proceed thereupon, and award process of contempt in
case of disobedience thereto, in like manner as upon disobedience to any writ
originally awarded by
the said court: Provided also, that if such writ shall be awarded by the Court of
King's Bench or the Court of Common Pleas, or Court of Exchequer . . . . . . . . . . . .
45 which last-mentioned court shall have like power to award such writs as the
respective courts of King's Bench and Common Pleas . . . . . . . . . . .now have, in
term, but so late that, in the judgement of the court, obedience thereto cannot be
conveniently paid during such term the same shall and may, at the discretion of the
said court, be made returnable
50 at a day certain in the then next vacation, before any justice or baron of the degree
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of the coif
. . . . . . . . . . who shall and may proceed thereupon, in such manner as by this Act
is directed concerning writs issuing in and made returnable during the vacation.
3. And be it further enacted by the authority aforesaid, that in all cases provided for
5 by this Act, although the return to any writ of habeas corpus shall be good and
sufficient in law, it shall be lawful for the justice or baron, before whom such writ
may be returnable, to proceed to examine into the truth of the facts set forth in such
return by affidavit or by affirmation (in cases where an affirmation is allowed by
law), and to do therein as to justice shall apertain; and if such writ shall be returned
10 before any one of the said
justices or barons, and it shall appear doubtful to him on such examination,
whether the material facts set forth in the said return or any of them be true or not,
in such case it shall and may be lawful for the said justice or baron to let to bail the
said person so confined or restrained, upon his or her entering into a recognizance
15 with one or more sureties, or in case of infancy or coverture, or other disability,
upon security by recognizance, in a reasonable sum, to appear in the court of which
the said justice or baron shall be a justice or baron upon a day certain in the term
following, and so from day to day as the court shall require, and to abide such
order as the court shall make in and concerning the premises; and such justice or
20 baron shall transmit into the same court the said writ and return, together with such
recognizance, affidavits, and affirmations; and thereupon it shall be lawful for the
said court to proceed to examine into the truth of the facts set forth in the return, in
a summary way by affidavit or affirmation (in cases where by law affirmation is
allowed), and to order and determine touching the discharging, bailing, or
25 remanding the party.
4. And be it further enacted by the authority aforesaid, that the like proceeding may
be had in the court for controverting the truth of the return to any such writ of
habeas corpus awarded as aforesaid, although such writ shall be awarded by the
said court itself, or be returnable therein.
30 5. And be it declared and enacted by the authority aforesaid, that a writ of habeas
corpus, according to the true intent and meaning of this Act, may be directed and
run . . . . . . . . . . . . into any port, harbour, road, creek, or bay, upon the coast of
England or Wales, although the same should lie out of the body or any county; . . .
. . . . . . . . . any law or usage to the contrary in anywise notwithstanding.
35 6. And be it further enacted by the authority aforesaid, that the several provisions
made in this Act, touching the making writs of habeas corpus issuing in time of
vacation returnable into the said courts, or for making such writs awarded in term
time returnable in vacation, as the cases may respectively happen, and also for
making wilful disobedience thereto a contempt of the court, and for issuing
40 warrants to apprehend and bring before the said justices or barons, or any of them,
any person or persons wilfully disobeying any such writ, and in case of neglect or
refusal to become bound as aforesaid, for committing the person or persons so
neglecting or refusing to jail as aforesaid, respecting the recognizances to be taken
as aforesaid, and the proceeding or proceedings thereon, shall extend to all writs of
45 habeas corpus awarded in pursuance of the said Act passed in England in the
thirty-first year of the reign of King Charles the Second . . . . . . . . . . . . . and
hereinbefore recited, in as ample and beneficial a manner as if such writs and the
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said cases arising thereon had been herein-before specially named and provided for
respectively.
Division 3—Justice and Liberty
[1297] 25 Edward I (Magna Carta) c. XXIX

5 No freeman shall be taken or imprisoned, or be disseised of his freehold, or
liberties or free customs, or be outlawed 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 nor put out of his freehold, nor of his franchises nor free
custom, unless it be by the law of the land; it is accorded assented, and stablished,
that from henceforth none shall be taken by petition or suggestion made to our
15 Lord the King, or to his council, unless it be by indictment or presentment of good
and lawful people of the same neighbourhood where such deeds be done, in due
manner, or by process made by writ original at the common law; nor that none be
out of his franchises, nor of his freeholds, unless he be duly brought into answer,
and forejudged of the same by the course of the law; and if any thing be done
20 against the same, it shall be redressed and holden for none.
Item, that no man of what estate or condition that he be, shall be put out of
land or tenement, nor taken, nor imprisoned, 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 answer without presentment before justices, or matter of record, or
by due process and writ original, according to the old law of the land; And it any
thing from henceforth be done to the contrary, it shall be void in the law, and
30 holden for error.
[1405-6] 7 Henry IV c. I
. . . And that the peace within the realm be holden and kept, so that all the King's
liege people and subjects may from henceforth safely and peaceably go, come, and
abide, according to the laws and usages of the same realm; And that good justice
35 and equal right be done to every person; saving to the same our Lord the King his
regalty and prerogative.
[1627] 3 Charles I (Petition of Right) c. I
The petition is exhibited to his Majesty by the lords spiritual and temporal, and
commons, in this present parliament assembled, concerning divers rights and
40 liberties of the subjects, with the King's majesty's royal answer thereunto in full
parliament.
To the King's most excellent majesty.
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Humbly show unto our sovereign Lord the King, the lords spiritual and temporal,
and commons in parliament assembled, That whereas it is declared and enacted by
a statute made in the time of the reign of King Edward the First, commonly called
Statutum de tallagio non concedendo, That no tallage or aid shall be laid or levied
5 by the King or his heirs in this realm, without the good will and assent of the
archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of
the commonality of this realm; (2) and by authority of parliament holden in the
five and twentieth year of the reign of King Edward the Third, it is declared and
enacted, That from thenceforth no person should be compelled to make any loans
10 to the King against his will, because such loans were against reason and the
franchise of the land; (3) and by other laws of this realm it is provided, That none
should be charged by any charge or imposition called a benevolence, nor by such
like charge; (4) by which the statutes before-mentioned and other the good laws
and statutes of this realm, your subjects have inherited this freedom, That they
15 would not be compelled to contribute to any tax, tallage, aid or other like charge
not set by common consent in parliament.
2. Yet nevertheless, of late divers commissions directed to sundry commissioners in
several counties, with instructions, have issued; by means whereof your people
have been in divers places assembled, and required to lend certain sums of money
20 unto your Majesty, and many of them upon their refusal so to do, have had an oath
administered unto them not warrantable by the laws or statutes of this realm, and
have been constrained to become bound to make appearance and give attendance
before your privy council and in other places, and others of them have been
therefore imprisoned, confined, and sundry other ways molested and disquieted;
25 (2) and divers other charges have been laid and levied upon your people in several
counties by lords lieutenants, deputy lieutenants, commissioners for musters,
justices of peace and others, by command or direction from your Majesty, or your
privy council, against the laws and free customs of the realm.
3. And where also by the statute called, The great charter of the liberties of England,
30 it is declared and enacted, That no freeman may be taken or imprisoned, or be
disseised of his freehold or liberties or his free customs, or be outlawed or exiled,
or in manner destroyed, but by the lawful judgement of his peers, or by the law of
the land.
4. And in the eight and twentieth year of the reign of King Edward the Third it was
35 declared and enacted by authority of parliament, That no man of what estate or
condition that he be, should be put out of his land or tenements, nor taken, nor
imprisoned, nor disherited, nor put to death without being brought to answer by
due process of law.
5. Nevertheless against the tenor of the said statutes, and other the good laws and
40 statutes of your realm to that end provided, divers of your subjects have of late
been imprisoned without any cause showed; (2) and when for their deliverance
they were brought before your justices by your Majesty's writs of habeas corpus,
there to undergo and receive as the court should order, and their keepers command
to certify the causes of their detainer, no cause was certified, but that they were
45 detained by your Majesty's special command, signified by the lords of your privy
council, and yet were returned back to several prisons, without being charged with
any thing to which they might make answer according to the law.
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6. And whereas of late great companies of soldiers and mariners have been dispersed
into divers counties of the realm, and the inhabitants against their wills have been
compelled to receive them into their houses, and there to suffer them to sojourn,
against the laws and customs of this realm, and to the great grievances and
5 vexation of the people.
7. And whereas so by authority of parliament, in the five and twentieth year of the
reign of King Edward the Third, it is declared and enacted, That no man should be
forejudged of life or limb against the form of the great charter and the law of the
land;
10 (2) and by the said great charter and other the laws and statutes of this your realm,
no man ought to be adjudged to death but by the laws established in this your
realm, either by the customs of the same realm, or by acts of parliament; (3) and
whereas no offender of what kind soever is exempted from the proceedings to be
used, and punishments to be inflcted by the laws and statutes of this your realm;
15 nevertheless of late time divers commissions under your Majesty's great seal have
issued forth, by which certain persons have been assigned and appointed
commissioners with power and authority to proceed within the land, according to
the justice of martial law, against such soldiers or mariners, or other dissolute
persons joining with them as should commit any murder, robbery, felony, mutiny
20 or other outrage or misdemeanour whatsoever, and by such summary course and
order as is agreeable to martial law, and as it sued in armies in time of war, to
proceed to the trial and condemnation of such offenders, and them to cause to be
executed and put to death according to the law martial. By pretext whereof some of
your Majesty's subjects have been by some of the said commissioners put to death,
25 when and where, if by the laws and statutes of the land they had deserved death, by
the same laws and statutes also they might, and by no other ought to have been
judged and executed. And also sundry grievous offenders, by colour thereof
claiming an exemption, have escaped the punishments due to them by the laws and
statutes of this your realm, by reason that divers of your officers and ministers of
30 justice have unjustly refused or forborn to proceed against such offenders
according to the same laws and statutes, upon pretence that the said offenders were
punishable only by martial law, and by authority of such commissions as aforesaid;
(2) which commissions, and all other of like nature, are wholly and directly
contrary to the said laws and statutes of this your realm.
35 8. They do therefore humble pray your most excellent Majesty, That no man
hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-
like charge, without common consent by act of parliament;
(2) and that none be called to make answer, or take such oath, or to give
attendance, or be confined, or otherwise molested or disquieted concerning the
40 same, or for refusal thereof; (3) and that no freeman, in any such manner as
is before-mentioned, be imprisoned or detained; (4) and that your Majesty would
be pleased to remove the said soldiers and mariners, and that your people may not
be so burthened in time to come; (5) and that the aforesaid commissions, for
proceeding by martial law, may be revoked and annulled, and that hereafter no
45 commissions of like nature may issue forth to any person or persons whatsoever to
be executed as aforesaid left by colour of them any or your Majesty's subjects be
destroyed, or put to death contrary to the laws and franchise of the land. All which
they most humbly pray of your most excellent Majesty as their rights and liberties,
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according to the laws and statutes of this realm; and that your Majesty would also
vouch safe to declare. That the awards, doing and proceedings, to the prejudice of
your people in any of the premises, shall not be drawn hereafter into consequence
or example; (2) and that your Majesty would also graciously pleased, for the
5 further comfort and safety of your people, to declare your royal will and pleasure,
That in the things aforesaid all your officers and ministers shall serve you
according to the laws and statutes of this realm, as they tender the honour of your
Majesty, and the prosperity of this kingdom.
[1688] I William and Mary Sess. II (Bill of Rights) c. II
10 An act for declaring the rights and liberties of the subject, and settling the
succession of the crown:
Whereas the lords spiritual and temporal, and commons, assembled at
Westminster, lawfully, fully, and freely representing all the estates of the people of
this realm, did upon the thirteenth day of February, in the year of our Lord one
15 thousand six hundred eighty eight, present unto their Majesties, then called and
known by the names and stile of William and Mary, prince and princess of Orange,
being present in their proper persons, a certain declaration in writing, made by the
said lords and commons, in the words following; viz.:
20 Whereas the late King James the Second, by the assistance of divers evil
counsellors, judges, and ministers employed by him did endeavour to subvert and
extirpate the protestant religion, and the laws and liberties of this kingdom.
1. By assuming and exercising a power of dispensing with and suspending of laws,
and the execution of laws, without consent of parliament.
25 2. By committing and prosecuting divers worthy prelates, for humbly petitioning to
be excused from concurring to the said assumed power.
3. By issuing and causing to be executed a commission under the great seal for
erecting a court called, the court of commissioners for ecclesiastical causes.
4. By levying money for and to the use of the crown, by pretence of prerogative, for
30 other time, and in other manner, than the same was granted by parliament.
5. By raising and keeping a standing army within this kingdom in time of peace,
without consent of parliament, and quartering soldiers contrary to law.
6. By causing several good subjects, being protestants, to be disarmed, at the same
time when papists were both armed and employed, contrary to law.
35 7. By violating the freedom of election of members to serve in parliament.
8. By prosecutions in the court of King's bench, for matters and causes cognizable
only in parliament; and by divers other arbitrary and illegal courses.
9. And whereas of late years, partial, corrupt, and unqualified persons have been
40 returned and served on juries in trials, and particularly divers jurors in trials for
high treason, which were not freeholders.
10. And excessive bail hath been required of persons committed in criminal cases, to
elude the benefit of the laws made for the liberty of the subjects.
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11. And excessive fines have been imposed; and illegal and cruel punishments
inflicted.
12. And several grants and promises made of fines and forfeitures, before any
conviction or judgement against the persons, upon whom the same were to be
5 levied.
All which are utterly and directly contrary to the known laws and statutes, and
freedom of this realm:
And whereas the said late King James the Second having abdicated the
government, and the throne being thereby vacant, his highness the prince of
10 Orange (whom it hath pleased Almighty God to make the glorious instrument of
delivering this Kingdom from papery and arbitrary power) did (by the advice of
the lords spiritual and temporal, and divers principal persons of the commons)
cause letters to be written to the lords spiritual and temporal, being protestants, and
other letters to the several counties, cities, universities, boroughs, and cinque-ports,
15 for the choosing of such persons to represent them, as were of right to be sent to
parliament to meet and sit at Westminster upon the two and twentieth day of
January, in this year one thousand six hundred eighty and eight in order to such an
establishment, as that their religion, laws, and liberties might not again be in
danger of being subverted; upon which letters, elections have been accordingly
20 made:
And thereupon the said lords spiritual and temporal, and commons, pursuant to
their respective letters and elections, being now assembled in a full and free
representative of this nation, taking into their most serious consideration the best
means for attaining the ends aforesaid; do in the first place (as their ancestors in
25 like case have usually done) for the vindicating and asserting their ancient rights
and liberties, declare:
1. That the pretended power of suspending the laws, or the execution of laws, by
regal authority, without consent of parliament, is illegal.
2. That the pretended power of dispensing with laws, or the execution of laws, by
30 regal authority, as it hath been assumed and exercised of late, is illegal.
3. That the commission for erecting the late court of commissioners for ecclesiastical
causes, and all other commissions and courts of like nature are illegal and
pernicious.
4. That levying money for or to the use of the crown, by pretence of prerogative,
35 without grant of parliament, for longer time, or in other manner than the same is or
shall be granted, is illegal.
5. That it is the right of the subjects to petition the King, and all commitments and
prosecutions for such petitioning are illegal.
6. That the raising or keeping a standing army within the kingdom in time of peace,
40 unless it be with consent of parliament, is against law.
7. That the subjects which are protestants, may have arms for their defence suitable to
their conditions, and as allowed by law.
8. That election of members of parliament ought to be free.
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9. That the freedom of speech, and debates or proceedings in parliament, ought not to
be impeached or questioned in any court or place out of parliament.
10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel
and unusual punishments inflicted.
5 11. That jurors ought to be duly impannelled and returned.
12. That all grants and promises of fines and forfeitures of particular persons before
conviction, are illegal and void.
13. And that for redress of all grievances, and for the amending, strengthening, and
preserving of the laws, parliaments ought to be held frequently.
10 And they do claim, demand, and insist upon all and singular the premisses, as their
undoubted rights and liberties; and that no declarations, judgements, doings or
proceedings, to the prejudice of the people in any of the said premisses, ought in
any wise to be drawn hereafter into consequence or example.
To which demand of their rights they are particularly encouraged by the
15 declaration of his highness the prince of Orange, as being the only means for
obtaining a full redress and remedy therein.
1. Having therefore an entire confidence, That his said highness the prince of Orange
will perfect the deliverance so far advanced by him, and will still preserve them
from the violation of their rights, which they have here asserted, and from all other
20 attempts upon their religion, rights, and liberties.
2. The said lords spiritual and temporal, and commons, assembled at Westminster, do
resolve, That William and Mary prince and princess of Orange, be, and be
declared, King and Queen of England, France and Ireland, and the dominions
thereunto belonging, to hold the crown and royal dignity of the said kingdoms and
25 dominions to them the said prince and princess during their lives, and the life of
the survivor of them; and that the sole and full exercise of the regal power be only
in, and executed by the said prince of Orange, in the names of the said prince and
princess, during their joint lives; and after their deceases, the said crown and royal
dignity of the said kingdoms and dominions to be the heirs of the body of the said
30 princess; and for default of such issue to the princess Anne of Denmark, and the
heirs of her body; and for default of such issue to the heirs of the body of the said
prince of Orange. And the lords spiritual and temporal, and commons, do pray the
said prince and princess to accept the same accordingly.
3. And that the oaths hereafter mentioned be taken by all persons of whom the oaths
35 of allegiance and supremacy might be required by law, instead of them; and that
the said oaths of allegiance and supremacy be abrogated.
I A.B. do sincerely promise and swear, That I will be faithful, and bear true
allegiance, to their Majesties King William and Queen Mary.
So help me God.
40 I A.B. do swear, That I do from my heart abhor, detest, and abjure as impious and
heretical, that damnable doctrine and position, That princes excommunicated or
deprived by the pope, or any authority of the see of Rome, may be deposed or
murdered by their subjects, or any other whatsoever. And I do declare, That no
foreign prince, person, prelate, state, or potentate hath, or ought to have any
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jurisdiction, power superiority, pre-eminence, or authority ecclesiastical or

spiritual, within this realm.
So help me God.
4. Upon which their said Majesties did accept the crown and royal dignity of the
5 kingdoms of England, France and Ireland, and the dominions thereunto belonging,
according to the resolution and desire of the said lords and commons contained in
the said declaration.
5. And thereupon their Majesties were pleased, That the said lords spiritual and
temporal, and commons, being the two houses of parliament, should continue to
10 sit, and with their Majesties' royal concurrence make effectual provision for the
settlement of the religion, laws and liberties of this kingdom, so that the same for
the future might not be in danger again of being subverted; to which the said lords
spiritual and temporal, and commons, did agree and proceed to act accordingly.
6. Now in pursuance of the premisses, the said lords spiritual and temporal, and
15 commons, in parliament assembled, for the ratifying, confirming and establishing
the said declaration, and the articles, clauses, matters and things therein contained,
by the force of a law made in due form by authority of parliament, do pray that it
may be declared and enacted, That all and singular the rights and liberties asserted
and claimed in the said declaration, are the true, ancient, and indubitable rights and
20 liberties of the people of this kingdom, and so shall be esteemed, allowed,
adjudged, deemed, and taken to be, and that all and every the particulars aforesaid
shall be firmly and strictly holden and observed as they are expressed in the said
declaration; and all officers and ministers whatsoever shall serve their Majesties
and their successors according to the same in all times to come.
25 7. And the said lords spiritual and temporal, and commons, seriously considering
how it hath pleased Almighty God, in his marvellous providence, and merciful
goodness to this nation, to provide and preserve their said Majesties' royal persons
most happily to reign over us upon the throne of their ancestors, for which they
render unto him from the bottom of their hearts their humblest thanks and praises,
30 do truly, firmly, assuredly, and in the sincerity of their hearts think, and do hereby
recognize, acknowledge and declare, That King James the Second having
abdicated the government, and their Majesties having accepted the crown and royal
dignity as aforesaid, their said Majesties did become, were, are, and of right ought
to be, by the laws of this realm, our sovereign leige lord and lady, King and Queen
35 of England, France and Ireland, and the dominions thereunto belonging, in and to
whose princely persons the royal state, crown, and dignity of the said realms, with
all honours, stiles, titles, regalities, prerogatives, powers, jurisdictions and
authorities to the same belonging and appertaining, are most fully, rightfully, and
entirely invested and incorporated, united and annexed.
40 8. And for preventing all questions and divisions in this realm, by reason of any
pretended titles to the crown, and for preserving a certainty in the succession
thereof, in and upon which the unity, peace, tranquility, and safety of this nation
doth, under God, wholly consist and depend, The said lords spiritual and temporal,
and commons, do beseech their Majesties that it may be enacted, established and
45 declared, That the crown and regal government of the said kingdoms and
dominions, with all and singular the premisses thereunto belonging and
appertaining, shall be and continue to their said Majesties, and the survivor of them
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during their lives, and the life of the survivor of them: And that the entire, perfect,
and full exercise of the regal power and government be only in, and executed by
his Majesty, in the names of both their Majesties during their joint lives; and after
their deceases the said crown and premisses shall be and remain to the heirs of the
5 body of her Majesty; and for default of such issue, to her royal highness the
princess Anne of Denmark, and the heirs of her body; and for default of such issue,
to the heirs of the body of his said Majesty: And thereunto the said lords spiritual
and temporal, and commons, do, in the name of all the people aforesaid, most
humbly and faithfully submit themselves, their heirs and posterities for ever; and
10 do faithfully promise, That they will stand to, maintain, and defend their said
Majesties, and also the limitation and succession of the crown herein specified and
contained, to the utmost of their powers, with their lives and estates against all
persons whatsoever, that shall attempt any thing to the contrary.
9. And whereas it hath been found by experience, that it is inconsistent with the
15 safety and welfare of this protestant kingdom, to be governed by a popish prince,
or by any King or Queen marrying a papist; the said lords spiritual and temporal,
and commons, do further pray that it may be enacted, That all and every person
and persons that is, are or shall be reconciled to, or shall hold communion with, the
see or church of Rome, or shall profess the popish religion, or shall marry a papist,
20 shall be excluded, and be forever incapable to inherit, possess or enjoy the crown
and government of this realm, and Ireland, and the dominions thereunto belonging,
or any part of the same, or to have, use or exercise any regal power, authority, or
jurisdiction within the same; and in all and every such case or cases the people of
these realms shall be, and are hereby absolved of their allegiance, and the said
25 crown and government shall from time to time descend to, and be enjoyed by such
person or persons, being protestants, as should have inherited and enjoyed the
same, in case the said person or persons so reconciled, holding communion, or
professing, or marrying as aforesaid, were naturally dead.
10. And that every King and Queen of this realm, who at any time hereafter shall come
30 to and succeed in the imperial crown of this kingdom, shall on the first day of the
meeting of the first parliament, next after his or her coming to the crown sitting in
his or her throne in the house of peers, in the presence of the lords and commons
therein assembled, or at his or her coronation, before such person or persons who
shall administer the coronation oath to him or her, at the time of his or her taking
35 the said oath (which shall first happen) make, subscribe, and audibly repeat the
declaration mentioned in the statute made in the thirtieth year of the reign of King
Charles the Second intitutled, An act for the more effectual preserving the King's
person and government, by disabling papists from sitting in either house or
parliament. But if it shall happen, that such King or Queen, upon his or her
40 succession to the crown of this realm, shall be under the age of twelve years, then
every such King or Queen shall make, subscribe, and audibly repeat the said
declaration at his or her coronation, or the first day of the meeting of the first
parliament as aforesaid, which shall first happen after such King or Queen shall
have attained the said age of twelve years.
45 11. All which their Majesties are contented and pleased shall be declared, enacted, and
established by authority of this present parliament, and shall stand, remain, and be
the law of this realm for ever; and the same are by their said Majesties, by and with
the advice and consent of the lords spiritual and temporal, and commons, in
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parliament assembled, and by the authority of the same, declared, enacted, and
established accordingly.
12. And be it further declared and enacted by the authority aforesaid, That from and
after this present session of parliament, no dispensation by non obstante of or to
5 any statute, or any part thereof, shall be allowed but that the same shall be held
void and of no effect, except a dispensation be allowed of in statute, and except in
such cases as shall be specially provided for by one or more bill or bills to be
passed during this present session of parliament.
13. Provided that no charter, or grant, or pardon, granted before the three and twentieth
10 day of October, in the year of our Lord one thousand six hundred eighty nine shall
be any ways impeached or invalidated by this act, but that the same shall be and
remain of the same force and effect in law, and no other than as if this act had
never been made.
15 Division 4—Monopolies
[1623-4] 21 or 21 and 22 James I c. III ss 1, 6

An Act concerning monopolies and dispensations with penal laws and the
forfeiture thereof.
1. (1) Forasmuch as your most excellent Majesty, in your royal judgment, and of your
20 blessed disposition to the weal and quiet of your subjects, did in the year of our
Lord God one thousand six hundred and ten, publish in print to the whole realm,
and to all posterity, That all grants and monopolies, and of the benefit of any penal
laws or of power to dispense with the law, or to compound for the forfeiture, are
contrary to your Majesty's laws, which your Majesty's declaration is truly
25 consonant and agreeable to the ancient and fundamental laws of this your realm.
(2) And whereas your Majesty was further graciously pleased, expressly to command,
that no suitor should presume to move your Majesty for matters of that nature.
(3) Yet nevertheless upon misinformations, and untrue pretences of public good, many
such grants have been unduly obtained, and unlawfully put in execution, to the
30 great grievance and inconvenience of your Majesty's subjects, contrary to the laws
of this your realm, and contrary to your Majesty's most royal and blessed intention
to published as aforesaid.
(4) For avoiding whereof, and preventing of the like in time to come, may it please
your excellent Majesty, at the humble suit of the lords spiritual and temporal, and
35 the commons, in this present parliament assembled, That it may be declared and
enacted.
(5) And be it declared and enacted by authority of the present parliament, That all
monopolies, and all commissions, grants, licences, charters and letters patents
40 heretofore made or granted, or hereafter to be made or granted, to any person or
persons, bodies politick or corporate whatsoever, of or for the sole buying, selling,
making, working or using of any thing within this realm, or the dominion of
Wales.
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(6) Or of any other monopolies, or of power, liberty to faculty, to dispense with any
others, or to give licence or toleration to do, use or exercise any thing against the
tenor or purport of any law or statute.
(7) Or to give or make any warrant for any such dispensation, licence or toleration to
5 be had or made; or to agree or compound with any others for any penalty or
foreitures limited by any statute; or of any grant or promise of the benefit, profit or
commodity of any forfeiture, penalty or sum of money, that is or shall be due by
any statute, before judgement thereupon had.
(8) And all proclamations, inhibitions, restraints, warrants of assistance, and all other
10 matters and things whatsoever, any way tending to the instituting, erecting,
strengthening, furthering or countenancing of the same or any of them.
(9) Are altogether contrary to the laws of this realm, and so are and shall be utterly
void and of none effect, and in no wise to be put in use or execution.
6. Provided also, and be it declared and enacted, That any declaration before
15 mentioned shall not extend to any letters patents and grants of privilege for the
term of fourteen years or under, hereafter to be made, of the sole working or
making of any manner of new manufactures within this realm, to the true and first
inventor and inventors of such manufactures, which others at the time of making
such letters patents and grants shall not use, so as also they be not contrary to the
20 law, nor mischievous to the state, by raising prices of commodities at home, or hurt
of trade, or generally inconvenient: The said fourteen years to be accounted from
the date of the first letters patents, or grant of such privilege hereafter to be made,
but that the same shall be of such force as they should be, if this act had never been
made, and of none other.
25 Division 5—Royal Marriages
[1772] 12 George III c. XI

An Act for the better regulating the future Marriages of the Royal Family.
Whereas your Majesty, from your paternal affection to your own family, and from
your royal concern for the future welfare of your people, and the honour and
30 dignity of your crown, was graciously pleased to recommend to your parliament to
take into their serious consideration, whether it might not be wise and expedient to
supply the defect of the laws now in being; and, by some new provision, more
effectually to guard the descendants of his late majesty King George the Second,
(other than the issue of princesses who have married, or may hereafter marry, into
35 foreign families) from marrying without the approbation of your Majesty, your
heirs, or successors, first had and obtained; we have taken this weighty matter into
our serious consideration; and, being sensible that marriages in the royal family are
of the highest importance to the state, and that therefore the Kings of this realm
have ever been entrusted with the care and approbation thereof; and, being
40 thoroughly convinced of the wisdom and expediency of what your Majesty has
thought fit to recommend, upon this occasion, we, your Majesty's most dutiful and
loyal subjects, the lords spiritual and temporal, and commons, in this present
parliament assembled, do humbly beseech your Majesty that it may be enacted;
and be it enacted by the King's most excellent majesty, by and with the advice and
45 consent of the lords spiritual and temporal, and commons, in this present
parliament assembled, and by the authority of the same.
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1. That no descendant of the body of his late majesty King George the Second, male
or female, (other than the issue of princesses who have married, or may hereafter
marry, into foreign families) shall be capable of contracting matrimony without the
previous consent of his Majesty, his heirs, or successors, signified under the great
5 seal, and declared in council (which consent, to preserve the memory thereof, is
hereby directed to be set out in the licence and register of marriage, and to be
entered in the books of the privy council); and that every marriage, or matrimonial
contract, of any such descendant, without such consent first had and obtained, shall
be null and void, to all intents and purposes whatsoever.
10 2. Provided always, and be it enacted by the authority aforesaid, That, in case any
such descendant of the body of his late majesty King George the Second, being
above the age of twenty-five years, shall persist in his or her resolution to contract
a marriage disapproved of, or dissented from, by the King, his heirs or successors;
that then such descendant, upon giving notice to the King's privy council, which
15 notice is hereby directed to be entered in the books thereof, may, at any time from
the expiration of twelve calendar months, after such notice given to the privy
council as aforesaid, contract such marriage; and his or her marriage with the
person before proposed, and rejected, may be duly solemnized, without the
previous consent of his Majesty, his heirs, or successors; and such marriage shall
20 be good, as if this act had never been made, unless both houses of parliament shall,
before the expiration of the said twelve months, expressly declare their
disapprobation of such intended marriage.
__________________
SCHEDULE
Enactments Division of Part II

[1275] 3 Edward I (Statute of Westminster the Elections
First) c. V
[1297] 25 Edward I (Magna Carta) c. XXIX Justice and Liberty
[1351-2] 25 Edward III St. V c. IV Justice and Liberty
[1354] 28 Edward III c. III Justice and Liberty
[1368] 42 Edward III c. III Justice and Liberty
[1405-6] 7 Henry IV c. I Justice and Liberty
[1623-4] 21 or 21 and 22 James I c. III, ss 1, 6 Monopolies
[1627] 3 Charles I (Petition of Right) c. I Justice and Liberty
[1640] 16 Charles I c. X Habeas Corpus
[1679] 31 Charles II c. II, ss 1-9, 11-13, 15-20 Habeas Corpus
[1688] 1 William and Mary ss II (Bill of Rights) Justice and Liberty
c. II
[1772] 12 George III c. XI Royal Marriages
[1816] 56 George III c. C Habeas Corpus
25
END QUOTE
.
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As Mr G. H. Schorel-Hlavka had as one of his numerous submissions on constitutional matters

before the County Court of Victoria on 19 July 2006, and so unchallenged by the Crown, despite
it being part of the Section 78B NOTICE OF CONSTITUTIONAL MATTERS, not a single
LAWYER/JUDGE/POLITICIAN is validly appointed within the State of Victoria because they
5 all fail to have “citizenship” as in the constitutional term of “citizenship” As the Framers of the
Constitution made clear that the Commonwealth could not define/declare “citizenship”
The relevant material was published on 6-7-2006 in one of his books titled;
.
INSPECTOR-RIKATI® & What is the -Australian way of life- really?
10 A book on CD on Australians political, religious & other rights
.
“Citizenship”, as like “detention”, was specifically left beyond the powers of the
Commonwealth of Australia. Progressively the Courts seem to have allowed the Commonwealth
15 of Australia to offend against those constitutional limitations, but while this might be so, since
Mr G. H. Schorel-Hlavka opposed on 4 December 2002 the validity of “citizenship” legislation
and the Commonwealth Director of Public Prosecutions in fact upon its own submission obtained
an order, by consent, for the matter to be heard and determined by the High Court of Australia,
then Mr Francis James Colosimo is entitled to rely upon that. Therefore Mr G. H. Schorel-
20 Hlavka having successfully raised these matters on constitutional grounds as objections, these
objections are and remain ULTRA VIRES and the Prosecutor in this case cannot circumvent
this without first obtaining a “judicial determination” as to whether the matters again raised are
to be declared INTRA VIRES, or remain ULTRA VIRES.
25 HANSARD 10-3-1891 Constitution Convention Debates (Official Record of the Debates of

QUOTE Dr. COCKBURN:
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
30 present are not only legislative, but constituent bodies. They have not only the power of
legislation, but the power of amending their constitutions. That must disappear at once on the
abolition of parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will.
END QUOTE
35 Again;
QUOTE
No parliament under a federation can be a constituent body; it will cease to have the power of
changing its constitution at its own will.
END QUOTE
40 .
This is also an issue Mr Francis James Colosimo explores, below,, that the Victorian
Parliament lacked any powers to somehow overthrow its 1855 State Constitution and somehow
replaced it with a purported 1975 Constitution.

QUOTE
Dr. COCKBURN: However, I do think that, as far as possible, we ought to settle these
matters, which will not only be bombs in this Convention, but also will be matters which
50 may seriously disturb the authority and influence of the federal parliament, which will
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require to have the goodwill, or at the least the good wishes, of all at the commencement of
its career. I do not wish to occupy the time of the Convention at length in dealing with
general principles; but still, to a certain extent, we must deal with general principles before
we go into Committee. Those who are speaking at a somewhat late stage of this debate
5 have this advantage at least: that the points which they had in their minds at the beginning
have been gradually lopped off, and there is not much left for them to talk about. There are,
however, one or two points which I feel it is necessary to raise on the general issue. It has
been well said by the hon. members, Mr. Thynne, Colonel Smith, and others, that we are
not here to advocate the question of federation, that being looked upon already as a settled
10 subject. [start page 197]
We are sent here simply to draft a constitution; and the desirableness of federation is our
major premise. That would be quite right if it only meant the discussion of federation as
against continued separation; but another point has been brought in: that is, the question of
unification has been raised in more than one quarter. So that, although it is not necessary to
15 argue in favour of federation as against continued separation, it will be necessary to argue
for federation as against unification; because, between the two levels of separation and
unification, there lies federation as an intermediate stage, which can be reached either by
ascending from separation, as was the case in the American colonies, or by descending
from unification as was the case in the Canadas; while in Switzerland we have had
20 examples of both. In Switzerland there was a descent from unification, from the republic
one and indivisible forced upon it by Napoleon, down to a loose confederation, and then an
ascent again to a complete federation, at which point equilibrium has at present been
obtained. So we have at least to combat the arguments for unification. Although we have
heard several able advocates and veteran statesmen urging unification, I do not think that
25 that point of view will recommend itself at present to the delegates representing the various
Australian colonies. Federation is an intermediate stage between the two extremes, and like
all compromises, it possesses some of the advantages, and many of the drawbacks of both
originals. It is a compromise which is inconsistent with many of those things which we
have hitherto regarded as advantages under which our privileges have sprung up. The hon.
30 member, Sir Samuel Griffith, very properly spoke in favour of that elasticity of constitution
which we may not notice changing from day to day; but when we look back, after ten or
eleven years, it is easy to face that we have, to a large extent, changed that constitution.
Now, it is impossible, unfortunately, that this elasticity, which has so much to recommend
it, and whose advantages were pointed out by Sir Samuel Griffith, can be retained to the
35 fullest extent when we make this compromise of federation.
Sir SAMUEL GRIFFITH: We can have elasticity in its working, although there may be
rigidity in the powers!
Dr. COCKBURN: No; the essence of federation is rigidity.

Sir SAMUEL GRIFFITH: Only in certain respects!
40 Dr. COCKBURN: There is rigidity as far as the constitution is concerned.
Sir SAMUEL GRIFFITH: No, only so far as the powers are concerned!
Dr. COCKBURN: It is a question of a written and rigid constitution as against an

unwritten and elastic constitution.
Sir SAMUEL GRIFFITH: No!
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Dr. COCKBURN: All our experience has been under an elastic constitution. Usage, no
doubt, will, to a great extent, modify even a written and rigid constitution; but I think the
hon. member, Sir Samuel Griffith, will agree with me that a written constitution is
absolutely incompatible with that gradual change which takes place from day to day.
5 Sir SAMUEL GRIFFITH: No; look at America!
Dr. COCKBURN: America is the very case I have in view. America has had a rigid
constitution which has practically remained unaltered for the last 100 years.
Mr. MOORE: There have been thirty-seven amendments!

Dr. COCKBURN: There have been only four amendments in this century. The hon.
10 member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree with
me that out of sixteen amendments only four have been agreed to in this century. All the
other amendments which have been made were really amend- [start page 198] ments which
were indicated almost at the very framing of the constitution, and they may be said to be
amendments which were embodied in the constitution at the first start. The very element,
15 the very essence, of federation is rigidity, and it is no use expecting that under a rigid and
written constitution we can still preserve those advantages which we have reaped under an
elastic constitution. All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we embark on
federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme.
20 Our parliaments at present are not only legislative, but constituent bodies. They have not
only the power of legislation, but the power of amending their constitutions. That must
disappear at once on the abolition of parliamentary sovereignty. No parliament under a
federation can be a constituent body; it will cease to have the power of changing its
constitution at its own will. Again, instead of parliament being supreme, the parliaments of
25 a federation are coordinate bodies-the main power is split up, instead of being vested in one
body. More than all that, there is this difference: When parliamentary sovereignty is
dispensed with, instead of there being a high court of parliament, you bring into existence a
powerful judiciary which towers above all powers, legislative and executive, and which is
the sole arbiter and interpreter of the constitution. Therefore it is useless for us to hope that
30 we can, at the same time, have the advantages of a federation and retain the advantages of
that elasticity which has hitherto given birth to our greatest privileges. Even responsible
government, which we have all learned to revere so much, has simply been a growth under
the shelter of parliamentary sovereignty. We do not know that the parliamentary
responsibility of ministers can exist under any other conditions. We have not seen it exist in
35 the United States or in Switzerland, and we have no reason to suppose that it will be
compatible with the conditions of federation here. I am inclined to think that it will not. I
am inclined to think that our best course will be to follow, in this respect, the guidance of
Switzerland, and have our ministers elected individually by the parliaments. I am all the
more willing to recognise this because, quite apart from federation, this is an alteration in
40 our constitution which for many years I have been in the habit of advocating even with our
present local parliaments. This rigidity of constitution leads to some very strange results.
When a constitution becomes immutable, not theoretically immutable, but practically
immutable, as it must be in a federation, it is apt to become, as has been very well laid
down by Dicey in his admirable work on federal government, the object of a somewhat
45 superstitious reverence on the part of the people, which leads them to regard the
constitution not only as something altogether apart from its true object, but something
sacred in itself. From what the hon. member, Mr. Deakin, said, I rather gathered that he
regarded that as an advantage. He spoke of a government "strong as a fortress, and sacred
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as a shrine." I am not altogether able to agree with the hon. member there. I think that
parliaments are rather utilitarian devices. As has been well put by an authority on
constitutional law, constitutions are devices founded on expediency, and possess no
intrinsic right of existence. So that, whatever the form of government may be-whether it is
5 that of a separate state, or the intermediate stage of a federation, or whether it is on the
highest level of all, that of unification-still I think we shall best serve the real object of
government if we regard all these, not as ends in themselves, and therefore not entitled to
super- [start page 199] stitious reverence, but simply as means with one object in view-that
is, good government, strictly utilitarian institutions, to which no sort of superstitious
10 reverence ought to attach itself. Otherwise we find that a rigid constitution becomes one of
the strongest engines of conservatism. I quite agree with the hon. member, Sir Samuel
Griffith, that elasticity is an advantage; and although we are about to depart from our
unwritten and elastic constitution and embark on a written and rigid constitution, I think we
should, as far as possible, give every play to that elasticity consistent with federation, for
15 hitherto it has been attended by the very best results. I have mentioned the fact, which we
must all recognise, that federation is essentially a compromise, and that one of our most
difficult problems will be to reconcile that elasticity which is so necessary for the
development of a constitution, with that rigidity which is recognised as being one of the
characteristics of federation. Not only in that respect must federation be recognised as a
20 compromise; but it is also essentially a compromise between the rights of the state as such,
and the rights of the central government. In your opening address, sir, you appealed to the
members of this Convention to forget as far as possible their local inclinations and to lose
sight of the lines which divide them. While agreeing with you that to a great extent this
must be done, still, as federation is a compromise and essentially a bargain, if we lose sight
25 of those inclinations which are one of the elements in the bargain, I am afraid we shall
make rather a one-sided contract. It is not because we are dissatisfied with our past history,
as I take it, that we are seeking federation. On the contrary, we have much to be proud of,
and it is because we are so proud of our progress, and love so much those colonies with
which our progress has been associated, that we look to federation not to destroy but to
30 protect and shield, those institutions under which we have so far obtained our rights and
privileges; and we look upon federation as a cover, a powerful cover, under which we can
advance to a still greater development of our freedom. And, sir, we could see at once that
when the first crossing of swords took place between the two parties to the bargain-between
the states-rights element and the element that makes for unification-we could see on which
35 side the strength of the argument lay; and it will be here as it has been elsewhere.
END QUOTE
.
Sir Samuel Griffith allegedly wrote the Judiciary Act 1903, then ran the High Court of Australia
as CJ for 14 odd years, using personal judgements, defying interpretation of the Constitution in
40 accord with common law, Hansard records of the Constitution Convention Debates (Official
Record of the Debates of the National Australasian Convention), etc, even defying the Privy
Council according to Isaac Isaacs J, and all JJ in the Engineers Case judgement 1920. It may
appear as a one man crusade by Sir Samuel Griffith to turn the Constitution into something that
was never intended by the Framers of the Constitution, that is that the judges of the High Court
45 of Australia ultimately would wield the powers of how the Constitution was to be applied.
Federal Executives desiring unification merely need to prop up their own brand of judges, so to
say, to allow for their kind of unification by High Court of Australia judgment contrary to what
the Constitution stands for. This is an underlying problem where on the one hand judges claim to
be conservative while on the other hand handing down judgments that are nothing but based on
50 contemporary circumstances. Making the Constitution to be subject to the abuse of power by the
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Federal Executive rather then to have the Constitution to be a source of protection against abuse
of power by the Federal Executive.
.
Al-Kateb v Godwin [2004] HCA 37, McHugh J:
5 QUOTE
The claim that the Constitution should be read consistently with the rules of international
law has been decisively rejected by members of this Court on several occasions. As a
matter of constitutional doctrine, it must be regarded as heretical. In Polites v The
Commonwealth [(1945) 70 CLR 60], the Court accepted that, so far as the language of a
10 statute permits, it should be interpreted and applied in conformity with the established rules
of international law. That is a rule of construction of long standing. The rationale for the
rule is that the legislature is taken not to have intended to legislate in violation of the
rules of international law existing when the legislation was enacted. Accordingly, the
law is construed as containing an implication to that effect. But, as Polites decided, the
15 implication must give way where the words of the statute are inconsistent with the
implication. No doubt the rule of construction had some validity when the rules of
international law were few and well-known. Under modern conditions, however, this rule
of [141] construction is based on a fiction. Gone are the days when the rules of
international law were to be found in the writings of a few well-known jurists.
20 Under Art 38 of the Statute of the International Court of Justice, international law includes:
(1) international conventions establishing rules recognised by contesting states, (2)
international custom, as evidence of a general practice accepted as law and (3) the general
principles of law recognised by civilised nations. International custom may be based on
“diplomatic correspondence, policy statements, press releases, the opinions of official legal
25 advisers, official manuals on legal questions ... executive decisions and practices, orders to
naval forces etc, comments by governments on drafts produced by the International Law
Commission, state legislation, international and national judicial decisions, recitals in
treaties and other international instruments, a pattern of treaties in the same form, the
practice of international organs, and resolutions relating to legal questions in the United
30 Nations General Assembly” [Ian Brownlie, Principles of Public International Law (Oxford
University Press, 6 ed 2003), p 6].
Given the widespread nature of the sources of international law under modern conditions, it
is impossible to believe that, when the Parliament now legislates, it has in mind or is even
aware of all the rules of international law. Legislators intend their enactments to be given
35 effect according to their natural and ordinary meaning. Most of them would be surprised to
find that an enactment had a meaning inconsistent with the meaning they thought it had
because of a rule of international law which they did not know and could not find without
the assistance of a lawyer specialising in international law or, in the case of a treaty, by
reference to the proceedings of the Joint Standing Committee on Treaties. In Minister for
40 Immigration and Ethnic Affairs v Teoh [(1995) 183 CLR 273 at 316 (emphasis added)],
counsel for the Minister told this Court that Australia was “a party to about 900 treaties”.
When one adds to the rules contained in those treaties, the general principles of law
recognised by civilised nations and the rules derived from international custom, it becomes
obvious that the rationale for the rule that a statute contains an implication that it should be
45 construed to conform with international law bears no relationship to the reality of the
modern legislative process.
Be that as it may, the rule of construction recognised in Polites … is too well established to
be repealed now by judicial decision.
However, this Court has never accepted that the Constitution contains an implication to the
50 effect that it should be construed to conform with the rules of international law. The
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rationale for the rule and its operation is inapplicable to a Constitution – which is a source
of, not an exercise of, legislative power. The rule, where applicable, operates as a statutory
implication. But the legislature is not bound by the implication. It may legislate in
disregard of it. If the rule were applicable to a Constitution, it would operate as a restraint
5 on the grants of power [142] conferred. The Parliament would not be able to legislate in
disregard of the implication ...
Most of the rules now recognised as rules of international law are of recent origin. If
Australian courts interpreted the Constitution by reference to the rules of
international law now in force, they would be amending the Constitution in disregard
10 of the direction in s 128 of the Constitution. Section 128 declares that the Constitution
is to be amended only by legislation that is approved by a majority of the States and
“a majority of all the electors voting”. Attempts to suggest that a rule of international law
is merely a factor that can be taken into account in interpreting the Constitution cannot hide
the fact that, if that is done, the meaning of the Constitution is changed whenever that rule
15 changes what would otherwise be the result of the case. The point is so obvious that it
hardly needs demonstration.
But a simple example will suffice to show the true character of what is done if courts take a
post-1900 rule of international law into account. Immediately before the rule was
recognised, our Constitution had meanings that did not depend on that rule. Either the rule
20 of international law has effect on one or more of those meanings or it has no effect. If it
has an effect, its invocation has [143] altered the meaning of the Constitution
overnight. As a result, a court that took the rule into account has amended the Constitution
without the authority of the people acting under s 128 of the Constitution. It has inserted a
new rule into the Constitution.(For POLITES v_THE COMMONWEALTH–
25 KANDILIOTES & Minister for Immigration and Ethnic Affairs v Teoh [(1995) 183
CLR 273 at 316
END QUOTE
Again;
QUOTE
30 As a result, a court that took the rule into account has amended the Constitution
without the authority of the people acting under s 128 of the Constitution.
END QUOTE
.
This is precisely the argument of Mr G. H. Schorel-Hlavka, that the Constitution must be read
35 as was applicable at the time of Federation, taking into account any successful referendum, but
otherwise laws enacted by the Commonwealth of Australia are and remain ULTRA VIRES for
so far they are beyond constitutional powers.
“Citizenship” was exclusively left to the States as a legislative power, and likewise, the
federation to a “political Union”, not being a dominion, empire, republic, kingdom cannot be
40 altered without a Section 128 of the Constitution referendum. It is neither an incidental powers
of the Commonwealth to seek to argue or purport otherwise, as extensively canvassed below.
.
Commonwealth of Australia Constitution Act (1900) Section 118

QUOTE
45 Full Faith and credit shall be given, throughout the Commonwealth to the laws, the public
acts and records. and the judicial proceedings of every state.
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END QUOTE
.
Therefore, where this was already subject to litigation against the Crown and neither the
Commonwealth or for that any State Attorney-General sought to dispute that “citizenship” is a
5 State legislative power and not for the Commonwealth, then any requirement for “Australian
citizenship” as legislated by the Commonwealth of Australia is therefore ULTRA VIRES.
The fact that the County Court of Victoria on 19 July 2006 without any reservation whatsoever
upheld the cases against the Crown underlines that for all purposes and intend it created a
DIRECT and COLLATERAL ESTOPEL against the Crown, as it had the opportunity to
10 present any challenge but refused/failed to do so.
.
On that basis it does not only apply to Mr G. H. Schorel-Hlavka, as no Constitution is merely
created for the service of one person, but is in fact applicable to all people in the Commonwealth
of Australia.
15 .
.
20 This book was in fact filed as evidence and so before the Court on 19 July 2006!
.
The material (about “CITIZENSHIP”) was also published on 30 September 2003;
.
INSPECTOR-RIKATI® on CITIZENSHIP
25 A book on CD about Australians unduly harmed.
(ISBN 0-9580569-6-X prior to 1-1-2007) ISBN 978-0-9580569-6-0
.
Later also in;
.
30 INSPECTOR-RIKATI® & How to lawfully avoid voting (Book)
A book about Australia’s federal election issues & rights
(ISBN 0-9751760-3-X prior to 1-1-2007) ISBN 978-0-9751760-3-0
-
INSPECTOR-RIKATI® & How to Lawfully Avoid Voting (Book-Colour)
35 A Book about Australia's Federal Election Issues & Rights
ISBN 978-0-9751760-9-2
-
INSPECTOR-RIKATI® & How to lawfully avoid voting (CD)
A book on CD about Australia’s federal election issues & rights
40 (ISBN 0-9751760-4-8 prior to 1-1-2007) ISBN 978-0-9751760-4-7)
.
Therefore, the 1948 Naturalization and Citizenship Act clearly was unconstitutional where it
defined/declared “citizenship”.
While those who grew up with this notion of the Commonwealth declaring/defining citizenship
45 now may occupy benches, including that of the High Court of Australia and may not be able to
understand/comprehend the true constitutional position of legislative powers of CITIZENSHIP
nevertheless it is the right of any person to oppose this unconstitutional kind of legislative
provision as to citizenship and no court and neither VCAT can circumvent such objection.
.
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Kirby J in Al-Kateb v Godwin [2004] HCA 37.doc;

QUOTE
The understanding of the Constitution in this Court is constantly evolving. The
interpretive principle that I have expressed is but another step in the process of evolution.
5 [168] With great respect to the opinion of Dixon J in Polites v The Commonwealth (and to
those who have later embraced that view) his Honour’s notion of the influence of
international law on the interpretation of the Australian Constitution can scarcely be treated
as the last word. In 1945, when Polites was decided, the Australian Constitution was
commonly regarded as little more than a statute of the United Kingdom Parliament,
10 binding in Australia for that reason. In most cases – including many constitutional cases
– the decisions of this Court were subject to appeal to the Privy Council.
Notions of national independence and distinctive legal thinking in Australia were tamed by
these realities. Because of entirely new realities today our thinking is necessarily different.
In 1945, the international community was quite different. The Crown of the United
15 Kingdom was still sovereign over a fifth of humanity. Many colonial empires survived.
Government by representative democracy and the rule of law were the exception. The
global economy was primitive when compared with today. Integrating technology was
quite limited. The United Nations had not yet been formed when the decision in Polites
was handed down in April 1945. The institutions of the world community had not yet been
20 created. The legal instruments that have declared the human rights and fundamental
freedoms of humanity had not yet been adopted. In these circumstances, to have expected
even so great a judge as Dixon J to foresee the legal expressions of human rights and
fundamental freedoms, founded in the notions of human dignity and the principle of justice
recognized in the Charter of the United Nations and to appreciate their impact on our
25 Constitution, is to expect too much. He, and our other predecessors, are excused for not
foreseeing these developments.
END QUOTE
.
As Mr G. H. Schorel-Hlavka has so much pointed out in his books in the INSPECTOR-
30 RIKATI® series, the Framers of the Constitution had all along recognised that there would be
from time to time a need to amend the Constitution but it was to be done through the people, and
for this Section 128 was created. The basic concept was that the Constitution (Commonwealth
of Australia Constitution Act 1900 (UK) with British law governed. Meaning, that (all) British
laws applies provided that it would not offend the provisions of the Constitution. The Framers
35 made clear that International law would not dictate constitutional provided legislative powers,
albeit the Commonwealth of Australia could take consideration of International provisions and, if
it deemed needed, apply it. Further, the Commonwealth of Australia could apply other legislative
provisions of other countries and/or adapt it as it’s own but not bound to do so. The
Commonwealth of Australia could in fact accept States to continue their legislative powers in
40 any of the subjects referred to in Subsection 51, but only until the Commonwealth of Australia
were to legislate itself in those subjects. Once it did so, all State legislative powers would come
to an end, albeit provisions already existing would protect residents of the respective States as to
their rights.
As the Framers of the Constitution made clear, if the electors choose to amend the Constitution
45 within the ambit of Section 128 Referendum then this was provided for, but it could not be
achieved otherwise. The American Constitution did not have this Referendum powers included,
and for this the Framers were aware of the need to keep a Constitution alive and allow electors
(and no other) to modernise the Constitution by amending it, if and when needed.
If therefore the Commonwealth of Australia was to have its own Queen of Australia, a complete
50 Departure from what the Constitution stands for, then this can only be achieved by a referendum
p98 9-3-2009
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approving this, and not otherwise. After all, the Constitution, also known as the “new Magna
Charta” is and remains to be for the people by the people!
.
Kirby J in Al-Kateb v Godwin [2004] HCA 37;
5 QUOTE
Courts declaring new rights: It is true that, consistently with the Constitution, it is not part
of the judicial function to insert a comprehensive Bill of Rights into the Constitution. Nor
may the judiciary “by the back door” incorporate an international treaty (even one ratified
by Australia) as part of Australian law where the Parliament has not done so by legislation.
10 END QUOTE
.
Neither then by a “by the backdoor” manner may apply some “citizenship” and “Queen of
Australia” meaning be applied that were specifically rejected by the Framers of the Constitution!
.
15 Kirby J in Al-Kateb v Godwin [2004] HCA 37);
QUOTE
My conclusion is no more a judicial attempt to “amend[ ] the Constitution under the
guise of interpretation” than were the many decisions of this Court, in which McHugh J
participated, where the process of interpretation produced a significant change to earlier
20 understandings of that document. If one new interpretation is forbidden, so are others. We
should not declare interpretations impermissible just because we do not agree with them.
As McHugh J has written elsewhere [News Ltd v South Sydney District Rugby League
Football Club Ltd (2003) 200 ALR 157 at 168.]:
“Questions of construction are notorious for generating opposing answers, none of
25 which can be said to be either clearly right or clearly wrong.”
These words apply equally to constitutional construction.
END QUOTE
.
And this is precisely the issue. The High Court of Australia seeks to re-interpret constitutional
30 meanings and by this amend the Constitution in some cases (Sue v Hill for example) while in
others (Al-Kateb, Al Khafaji, Behrooz and Re Woolley) (See Folder 01 of the CD) refusing to
use the same application. Mr G. H. Schorel-Hlavka maintains that the Constitution does not
permit amendment of the Constitution by the High Court of Australia and as such is bound to
interpret the Constitution as intended by the Framers, and not otherwise. In the document
35 Historical Aspects of Democracy (See Folder 16 of the CD) the following statement is made in
the document titled;
QUOTE
The late, Mr G. Clements, a former well known QC in the UK commented "The continued
usage of the Australian Constitution Act 1900(UK) by Australian Governments and the
40 judiciary is a confidence trick of monstrous proportions played upon the Australian people
with the intent of maintaining power. The Australian Constitution Act 1900(UK) remains
an act of the United Kingdom. After joining the League of Nations in 1919, Australia
became a sovereign nation. It had no further legal power to use, alter or otherwise tamper
with another nation's legislation."
45 END QUOTE
This underlines that there is a need to clarify if we have a Constitution at all and if somehow
International law, as like other contemporary laws could alter of dispose of the Commonwealth
of Australia Constitution Act 1900 (UK) or that we simply must continue on the basis that the
Commonwealth of Australia Constitution Act 1900 (UK) is the only valid Constitution to be
p99 9-3-2009
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applied. Only then can we determine which legislative provisions can be deemed valid for
litigation.
In the Annotated Constitution of the Commonwealth of Australia, by Quick & Garran we find
extrinsic material relevant to the issues afoot. (Quote) page 795
5 (Per Marshall, C. J., Gibbons v Ogden, 9 Wheat. At p.187.)
QUOTE
“ Now the doctrines laid down by Chief Justice Marshall, and on which the courts have
constantly since proceeded, may be summed up in two propositions.
10 1.“Every power alleged to be vested in the National government, or any other organ
thereof, must be affirmatively shown to have been granted. There is no presumption in
favour of the the existence of a power; on the contrary; the burden of proof lies on those
who assert its existence, to point out something in the Constitution which either expressly
or by necessary implication confers it. Just as an agent, claiming to act on behalf of his
15 principal, must make out by positive evidence that his principal gave him the authority he
relies on; so Congress, or those who rely on one of the Statutes, are bound to show that the
people have authorized the legislature to pass the statute. The search for the power will be
conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing
which directly or impliedly conveys it, then whatever the executive or legislature of the
20 National government, or both of them together, may have done in the persuasion of its
existence, must be deemed null and void, like the act of any other unauthorized agent.”
END QUOTE
.
Marriage of Baines (1981) 7 Fam LR 226 at 229
25 QUOTE
The role of the judge is that of adjudicator.
END QUOTE
.
Therefore it is not for VCAT and/or the Court to assume jurisdiction but to adjudicate upon the
30 facts that are placed before the Court.
.
What never was, in any past proceedings made known to the unrepresented Defendant, was that
albeit statements from the BAR table normally cannot be held to be “evidence” it is another
matter altogether when the unrepresented Defendant, having made certain statements from the
35 BAR table, then later under oath confirms the same and then causes it to be accepted as evidence.
The following quotation of transcript is a clear example that this can be done;
SCHOREL v. SCHOREL (1982) C 66117 of 1982 Unreported Transcript 11-3-82 and 12-3-82
before Emery SJ.
40 QUOTE
Page 115: (Emery SJ examine-in-chief Mr Schorel in the witness box)
(In regard of the former husband’s statements from the bar table earlier during the
proceedings about matters on the lists)
“You made or gave me some information while you were standing at the bar table just
45 a little while ago about the two lists of furniture that your wife produced this morning,
exhibits A and B. What you said from the bar table is true, is that right?- - - That is
correct, your Honour.
p 100 9-3-2009
p101
Yes. Well, that makes it all evidence that you have given instead of just a statement.”
END QUOTE
.
This is why also the following is so important;
5 .
QUOTE
"A frequent consequence of self representation is that the court must assume the burden of
endeavouring to ascertain the rights of the parties which are obfuscated by their own
10 advocacy"
END QUOTE
.
A trial judge can explain to an unrepresented Defendant the relevant rules applicable in the Court
and not merely assume that the unrepresented Defendant has full knowledge of what the legal
15 processes are about. Sure, it would not be practicable for a trial judge to set out each and every
Rule of the Court, or every part of legal process applicable, but surely basic and critical matters
should form part of a judge setting out to an unrepresented Defendant what are the basic
requirements in conduct? It just may appear that judicial officers are ignorant of the emotional
and mental turmoil that may go on within an unrepresented Defendant facing litigation that can
20 have severe consequences and ignore to even set out the basic rules of litigation. It seems that
because judicial officers know the Rules, or purportedly know them they assume that an
unrepresented Defendant does so also, but then when it comes to implementing proper
procedures of proving jurisdiction it rather appears that the judicial officer himself doesn’t
appear to understand what is required on such a challenge in the court, and the challenge itself
25 being of primary concern to eliminate before proceeding at all. This truly then becomes an added
burden and unexpected burden to the unrepresented Defendant when the adjudicator does not
follow or does not appear to follow due process at law and appears to not understand when Mr
Francis James Colosimo insists that it is up to the Prosecution to prove the jurisdiction when
challenged.
30 The issue of assumption is showing itself, with great concern to Mr G. H. Schorel-Hlavka, to be
coming through with numerous judgments. Shown, as set out below also, where judges
“ASSUME” some LEGAL FACT even so it is LEGAL FICTION because some judge in the
past happens to have made some kind of statement in a judgment, regardless that the judge in that
cause (Authority) was totally wrong as to the legal basis on which the argument was based upon.
35 Just consider the issue of is the Commonwealth of Australia a DOMINION or is it in fact no
more but some limited “political UNION” (As in the European Union) and in fact the States
(Victoria, Western Australia etc) are the Dominions? (As Spain and France are individual parties
to the European Union.)
The High Court of Australia has even claimed that the States are part of the Commonwealth of
40 Australia, which could not possibly be correct as this would change a federation into a
confederation (amalgamation)! The High Court of Australia seems to rest a lot of argument upon
the changing of Title in the Royal Titles Act, as if this Act can somehow have anything to do
with the formation of the Federation.
Sure, when reading the various judgments, then the arguments seems to be plausible, that is from
45 the point of view of the author of the judgment, but in pure and valid constitutional terms they
are in the view of Mr G. H. Schorel-Hlavka no more than fictional nonsense from the land of
make believe as no valid authority is behind such mere say so. The people to whom the
Constitution rightfully belongs either consent to changes made over time as they are permitted
by Section 128, Referendum to do or the Constitution stays as originally accepted and agreed to
50 by the people.
p 101 9-3-2009
p102
Section 128 of the Constitution, the people by Referendum, can by vote and by majority of the
States of the Commonwealth of Australia alter, sight and mark these changes. Any other so
obtained changes to the Constitution is but by default and ULTRA-VIRES the Constitution and
being no more than ULTRA-VIRES affording no obedience other than by brute force and
5 political will upon the people, who rely on the blessings of almighty God as stated in the
Preamble of the Constitution itself.
The Commonwealth of Australia's membership of the former League of Nation and the
subsequent United Nations cannot be justification for independence, for if the Commonwealth of
Australia never was a “Sovereign nation” in the first place then this cannot be so. So to then
10 prescribe to the Commonwealth of Australia as being an independent nation, and as such the
Commonwealth of Australia then not and its people now not now being subjects to the British
Crown. This is equivocal to my next door neighbour making me the Queen of “Whatever”
unbeknown to my neighbour and then acted upon by me as it suited me, when no authority was
vested in my neighbour to do so nor myself.
15 This decision though is possible to be decided for by the people of the States, and then by the
majority of the States of the Commonwealth of Australia, and so far, when Section 128,
Referendum was invoked as to the Commonwealth of Australia becoming a Republic, it was
clearly denied by the people to become such, and as such we remain British Subjects and even if
the Queen wants rid of us and for all intent and purpose “divorces” us, as is claimed or implied
20 by the British Nationality Act 1984. 11712 Geo. 6. Ch. 56,. this does not change what was by
the Commonwealth of Australia agreed to on behalf of the States, is beyond constitutional
powers and without a referendum remains ULTRA VIRES. This again is equivalent to a
marriage, where both parties signed a contract as to a marriage being agreed upon and where
then one of the party, wishing to be divorced claims such a divorce to have taken place with no
25 need to involve the other party nor inform the other party of the change made to the original
marriage contract. Even more to the point, one party signed a contract that stated they would
never separate and understood this to be no threat as the other party gave them complete
authority over themselves anyway along with all the benefits that came with the contract as in
rights and privileges granted which would not be ever interfered with for all time to come, unless
30 such was the will of the other party. Such freedom experiences it's own independence from the
onset of the agreement with all the tools to make independent changes according to the contract
agreed upon. A marriage for perpetuity that nothing other than each party is in control of
regarding its independent growth, failing breaking of the rules of the contract as to how to make
future changes as a Commonwealth, which would be guarded by the British Crown if violated.
35 Such is the freedom the Framers of the Constitution of the Commonwealth of Australia provided
for the people, and approved by the People in subsequent referendums held then, of this land
mass called Australia, where no “divorce” can alter what was put in place as it was for perpetuity
and no Referendum by the people has so far changed. What the High Court of Australia appears
to seek to accomplish is to transform the Constitution into some documents with totally different
40 applications circumventing Section 128 of the Constitution referendums.
On the one hand it argues that the Constitution must be interpreted as to what was applicable at
the time of federation while on the other hand it pursues that modern views should be applied.
And by so doing, having no regard for the very Constitution itself. That is anarchy at its worst
and only tyranny can come from it, as the people are by such interpretation excluded by the
45 “modern views” gained without Section 128, Referendum by the people.
Her Majesty, the British Parliament, the Federal Government, the Federal Parliament and not
even the Courts have any constitutional powers to amend the Constitution but the electors by
way of Section 128 referendum have. Sure, within subsection 51 (xxxvii) and (xxxviii) certain
50 powers can be exercised but it must be within the scope of those subsections.
p 102 9-3-2009
p103
For example, the so called Australian Act 1986 was not a constitutional power vested within the
powers of either the British Parliament or the States as it sought to alter the constitutional
provisions and limitations elsewhere provided for in the Constitution itself.
.
5 Hansard 2-3-1898 Constitutional Convention Debates (Official Record of the Debates of
That is, for admission into this political Union, which is not a republic, which is not
to be called a dominion, kingdom, or empire, but is to be a Union by the name of
10 "Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
15 QUOTE
Mr. OCONNOR.-If the territory does not stand in the same position as a state, it is
admitted to political rights at the will of the Commonwealth, and upon such terms as
the Commonwealth may impose. Every person who has rights as a member of the
20 Commonwealth must be a citizen either of some state or some territory. It is only by
virtue of his citizenship of a state or of a territory that he has any political rights in
the Commonwealth.
END QUOTE
And
25 QUOTE Mr. OCONNOR.-
Now, in regard to the citizens of the states-that is, those who are here already, apart
from these laws-every citizen of a state having certain political rights is entitled to all
the rights of citizenship in the Commonwealth, necessarily without a definition at all.
END QUOTE
30 And
QUOTE Mr. KINGSTON (South Australia).-
. I am impressed with the importance of taking power as occasion arises to define
what shall constitute citizenship of the Commonwealth; and the Bill at present is
altogether deficient in regard to giving any power to the Commonwealth Parliament
35 to legislate on this subject.
END QUOTE
And
That the citizens of the states are the citizens of the Commonwealth. That is the
40 fundamental principle we must have regard to, and I ask my honorable friend to say
whether a citizen of the Commonwealth is not a citizen of the state?
.
45 QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will
come under the operation of the law, so as to be a citizen of the Commonwealth, who
would not also be entitled to be a citizen of the state? There ought to be no opportunity for
such discrimination as would allow a section of a state to remain outside the pale of the
50 Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists,
p 103 9-3-2009
p104
but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but
one only is a citizen of the Commonwealth. That would not be the dual citizenship
meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say,
5 I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
dual citizenship. That does not affect the operation of this clause at all. But if we introduce
this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who
say that it is putting on the face of the Constitution an unnecessary provision, and one
which we do not expect will be exercised adversely or improperly, and, therefore, it is
10 much better to be left out. Let us, in dealing with this question, be as careful as we possibly,
can that we do not qualify the citizenship of this Commonwealth in any way or exclude
anybody [start page 1764] from it, and let us do that with precision and clearness.
As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not
want to place in the hands of the Commonwealth Parliament, however much I may be
15 prepared to trust it, the right of depriving me of citizenship.
I put this only as an argument, because no one would anticipate such a thing, but the
Commonwealth Parliament might say that nobody possessed of less than £1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of
Parliament.
20 Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
rest this Constitution on a foundation that we understand, and we mean that every
citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship, except
25 with regard to one particular set of people who are subject to disabilities, as aliens,
and so on. Subject to that limitation, we ought not, under this Constitution, to hand over
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
END QUOTE
30 And
QUOTE
Mr. BARTON (New South Wales).-We have provided in this Constitution for the
exercise of the rights of citizenship, so far as the choice of representatives is concerned,
and we have given various safe-guards to individual liberty in the Constitution. We have,
35 therefore, given each resident in the Commonwealth his political rights, so far as the
powers of legislation and administration intrusted to the Commonwealth are concerned. Let
us consider the position. Before the establishment of the Commonwealth, each subject is
the subject of a state. After the Commonwealth is established, every one who acquires
political rights-in fact, every one who is a subject in a state, having certain political rights,
40 has like political rights in the Commonwealth. The only difference between the position
before the institution of the Commonwealth and afterwards is that, so far as there are
additional political powers given to any subject or citizen, be has the right to exercise these,
and the method of exercising them is defined. So far the right of citizenship, if there is a
right of citizenship under the empire, is defined in the Constitution. Now, each citizen
45 of a state is, without definition, a citizen of the Commonwealth if there is such a term
as citizenship to be applied to a subject of the empire. I must admit, after looking at a
standard authority-Stroud's Judicial Dictionary-that I cannot find any definition of
citizenship as applied to a British subject. No such term as citizen or citizenship is to be
found in the long roll of enactments, so far as I can recollect, that deal with the
p 104 9-3-2009
p105
position of subjects of the United Kingdom, and I do not think we have been in the
habit of using that term under our own enactments in any of our colonies.
Mr. HIGGINS.-You had it in the Draft Bill.
Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to
5 objections from members of the Convention. I am inclined to think that the Convention is
right in not applying [start page 1765] the term "citizens" to subjects residing in the
Commonwealth or in the states, but in leaving them to their ordinary definition as subjects
of the Crown. If, however, we make an amendment of this character, inasmuch as citizens
of the state must be citizens of the Commonwealth by the very terms of the Constitution,
10 we shall simply be enabling the Commonwealth to deal with the political rights of the
citizens of the states. The one thing follows from the other.
If you once admit that a citizen or subject of the state is a citizen or subject of the
Commonwealth, the power conferred in these wide terms would enable the Federal
Parliament to deal with the political rights of subjects of the states. I do not think the
15 honorable member intends to go so far as that, but his amendment is open to that
misconception.
Mr. HOWE.-Trust to the Federal Parliament.
Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trust
them to exercise it with wisdom, but we still keep as the subject of debate the question of
20 whether a particular legislative right should be conferred on the Federal Parliament. When
you give them the right then you may trust them to exercise it fully.
Mr. HOWE.-And wisely.
Mr. BARTON.-If the honorable member's exclamation means more than I have
explained, then the best thing to do is to confide to the Commonwealth the right of dealing
25 with the lives, liberty, and property of all the persons residing in the Commonwealth,
independently of any law of any state. That is not intended, but that is what the expression
"Trust the Federal Parliament" would mean unless it was limited by the consideration I
have laid down. I am sure Dr. Quick will see that he is using a word that has not a
definition in English constitutional law, and which is not otherwise defined in this
30 Constitution. He will be giving to the Commonwealth Parliament a power, not only of
dealing with the rights of citizenship, but of defining those rights even within the very
narrowest limits, so that the citizenship of a state might be worth nothing; or of
extending them in one direction, and narrowing them in another, so that a subject
living in one of the states would scarcely know whether he was on his head or his
35 heels. Under the Constitution we give subjects political rights to enable the Parliament to
legislate with regard to the suffrage, and pending that legislation we give the qualification
of electors. It is that qualification of electors which is really the sum and substance of
political liberty, and we have defined that. If we are going to give the Federal Parliament
power to legislate as it pleases with regard to Commonwealth citizenship, not having
40 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 QUOTE
45 How wrong and far the various Parliaments can drift is for example shown in Mr G. H. Schorel-
Hlavka’s various books where he exposes the misconception in regard of legislative powers.
Commonwealth Powers (Family Law---Children) Act 1986 Version No. 010 Act No.
92/1986
50 (See Folder 02 of the CD)
p 105 9-3-2009
p106
This Act purports to give the Commonwealth of Australia certain legislative powers in regard of
Children not being children of a marriage.
The Basic error that here is creeping up in the enactment is the following;
QUOTE
5 4. Termination of reference s. 4
The Governor in Council may, at any time, by proclamation published in the
Government Gazette, fix a day as the day on which the reference under this Act shall
terminate.
END QUOTE
QUOTE Mr. DEAKIN.-
Another difficulty of the sub-section is the question whether, even when a state has
referred a matter to the federal authority, and federal legislation takes place on it, it
15 has any-and if any, what-power of amending or repealing the law by which it referred
the question? I should be inclined to think it had no such power, but the question has
been raised, and should be settled. I should say that, having appealed to Caesar, it
must be bound by the judgment of Caesar, and that it would not be possible for it
afterwards to revoke its reference.
20 END QUOTE
.
Therefore, once a State adapted Commonwealth legislation then it has no power to rescind the
reference of legislative powers whatsoever. The State of Victoria and so other States however
never seemed to have understood this and as such never intended to adopt existing
25 Commonwealth legislation! Indeed, it seeks to refer to;
QUOTE
Current State: This information relates only to the provision/s amending the
Commonwealth Powers (Family Law--Children) Act 1986
END QUOTE
30 Somehow the State of Victoria is here seeking to amend a State legislation already having been
overtaken by Commonwealth legislation! This is ignoring the fact that the Victorian legislation
would be of no value, as once the Commonwealth having acted upon it, then hat is the end of
State legislative powers forever. That is if the legislation was within its constitutional jurisdiction
to be referred to the Commonwealth in the first place.
35 Subsection 51(xxvii) is not the right vehicle to do so as that relates to a mater in dispute between
two or more States but not all States, as Mr G. H. Schorel-Hlavka so carefully has addressed in
his various books. As such, the purported reference of legislative powers by all States was
unconstitutional and therefore NULL AND VOID (ULTRA VIRES).
One may argue as to what on earth this Commonwealth Powers (Family Law--Children) Act
40 1986 case has to do with current litigation and Mr G. H. Schorel-Hlavka would respond that
this is an example to show how all those lawyers in the Parliament, in the Courts, etc do not
understand the basic errors that having been made in this issue and that likewise basic errors are
made time and again in other matters, such as “citizenship” the constitutional status of the
Commonwealth of Australia, etc. As in the Commonwealth Powers (Family Law--Children) Act
45 1986, even there being no constitutional power having been granted for the Australian Act 1986,
and therefore cannot apply, as the Act seemingly appeared to have accomplished some change to
the Constitution that inadvertently circumvented constitutional powers and limitations, such as
Section 128 referendum, without which such fundamental changes as to the transfer of power
p 106 9-3-2009
p107
from the States to the Commonwealth of Australia cannot ever be made and will only result in an
ULTRA-VIRES act which renders the Act inoperable, null and void.
The British Parliament had no constitutional powers themselves to amend Subsection 51(xix) as
to naturalization, to naturalize “aliens” into “British nationals” and neither did the
5 Commonwealth of Australia have any legislative powers to accomplish this power to naturalize.
That power is a State power. However, somehow by implementation of the Australian Act 1986
some purported backdoor approach is enacted so as to rob Mr Francis James Colosimo and
others of their constitutional rights as British subjects and the rights and privileges and
protections obtained by remaining as such.
10
Hansard 2-3-1898 Constitution Convention Debates; (Official Record of the Debates of the
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we
15 are all alike subjects of the British Crown.
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 it not implanted in the
Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
20 the 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 way
interfering 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 a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen. I
25 see therefore nothing unconstitutional, nothing contrary to our instincts as British
subjects, in proposing to place power in this Constitution to enable the Federal Parliament
to deal with the question of federal citizenship. An objection has been raised in 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 Constitution itself. I have
30 considered this matter very carefully, and it has seemed to me that it would be most
difficult and invidious, if not almost impossible, to frame a satisfactory definition. There is
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
35 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
40 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.
45 END QUOTE
It must be noted that Dr Quick’s amendment was defeated as to give constitutional powers to the
Commonwealth of Australia to declare/define citizenship!
p 107 9-3-2009
p108
CHH 92-217 page 78485 (1991)

QUOTE
“The Court could not make an order which otherwise fell outside
its jurisdiction merely because the parties consent to it..”
5 END QUOTE
This is also very much also applicable to the various Parliaments as well.
Merely because (political) parties happened to agree with each other to create this purported
Australian Citizenship Act 1986 that does not in itself grant them constitutional powers which
they never had in the first instance to put such an Act in place. One of the core issue for example
10 is; did the Commonwealth of Australia prior to 1948 have any constitutional powers to
declare/define citizenship of any person born within the Commonwealth of Australia? The
answer can only be NO it didn’t have this legislative power. Then if it didn’t have the legislative
power then how could the Commonwealth of Australia obtain such legislative powers to enact
the Australian Citizenship Act 1986. Such power, belongs to the states, not the Commonwealth
15 of Australia and without the said powers being transferred from the States to the Commonwealth
of Australia, the Commonwealth of Australia has no such power. The Australian Citizenship Act
1986 as such is null and void.
Therefore, in this comprehensive document, albeit not complete, Mr Francis James Colosimo
relies upon
20 determinations of the High Court of Australia, with other experts, as shown below:
QUOTE:-
“..However, the judiciary has no power to amend or modernize the Constitution to give
effect to what Judges think is in the best public interest. The function of the judiciary,
including the function of this Court, is to give effect to the intention of the makers of the
25 Constitution as evinced by the terms in which they expressed that intention. That
necessarily means that decisions, taken almost a century ago by people long dead, bind
the people of Australia today even in cases where most people agree that those decisions
are out of touch with the present needs of Australian society.”
30 ":.. The starting point for a principled interpretation of the Constitution is the search for
the intention of its makers" Gau dro n J (Wa kim , HCA 27 \99)
"... But … in the interpretation of the Constitution the connotation or connotations of its
words should remain constant. We are not to give words a meaning different from any
35 meaning which they could have borne in 1900. Law is to be accommodated to changing
facts. It is not to be changed as language changes. "
Windeyer J (Ex parte Professional Engineers' Association)
... " A Fed era l co ns ti tu ti on mu st be ri gi d. Th e go ve rn me nt it est abl ish es mus t

40 be one of def ine d pow er; wi th in th os e po wer s it mu st be par amo unt bu t it
mu st be in co mp et en t to go be yo nd the n." Gum mow and Hay ne JJ (Wa kim ,
HCA 2 7\99)
“… what law is to be applied by the courts? That question is resolved by covering
clause 5 of the Constitution: This Act, and ALL LAWS made by the Parliament
45 of the Commonwealth under the Constitution, shall be binding on the courts, judges,
p 108 9-3-2009
p109
and people of every State and of every part of the Commonwealth, notwithstanding
anything in the laws of any State.”
Hayne J. (McClure V Australian Electoral Commission HCA 1999, ALR at 736
END QUOTE
5 And…
QUOTE
In the Annotated Constitution of the Commonwealth of Australia, by Quick &
Garran we find extrinsic material relevant to the issues afoot. Quote:-
§ 33 "An d all Law s”
10 No dif fic ult y is su g ges ted by the wor ds; "an d all the law s mad e by th e
Par lia men t of the Com mon wea lth und er the Con sti tut ion .” The wor ds "un der
the Con sti tut ion " are wor ds or lim ita tio n and qu al if ic at io n. The y are
equ iva len t to the wor ds in the cor res pon din g san cti on of the Con sti tut ion or
the Uni ted Sta tes "in pu rsu anc e th ere of, ” Su pra . Not all ena ctm ent s
15 pur por tin g to be law s mad e by the Par lia men t are bin din g; but law mad e
und er, in pur sua nce of , an d wi th in the aut hor it y con fer red by the Con sti tut ion ,
and tho se on ly, are bi ndi ng on the cou rts , jud ges , and peo ple . A law in exc ess
of the aut hor ity con fer red by the Con sti tut ion is no law ; it is who ll y voi d
and ino per ati ve; it con fer s no ri ght , it im po se s no du ti es ; it af fo rd s no
20 pr ot ec ti on . (Nor ton v. , She lby Cou nty , 1 IS U.S. 425 ; see not e § 447
“Po wer of :1 1C Par li ame nt of a Col ony .'' ) .
The Act its elf is bin din g wit hou t lim ita tio n or qua lif ica tio n bec aus e it is
pas sed by the sov ere ig n Par lia men t, but law s pas sed by th e Par lia men t of the
Co mm on we al th , a sub ord ina te Par li amen t, mu st be wit hin the lim its of the
25 del ega tio n of pow ers or the y wi ll be nul l and voi d. To be val id and bin din g
the y mus t be wit hin the dom ain of jur isd ict ion map ped out and del im ite d in
exp res s ter m, or by nec ess ar y imp lic ati on, in the Con sti tut ion its elf. Wha t is
not so gra nte d to the Par lia men t of the Co mm on we al th is den ied to it.
Wha t is not so gra nte d is eit her res erv ed to th e Sta tes , as exp res sed in the ir
30 res pec tiv e Con sti tut ion s, or remains vested but dormant in the people of the
Commonwealth, The pos sib le are a, of enl arg eme nt of Com mon wea lth pow er
by, an ame ndm ent of th e Con sti tut ion wil l he con sid ere d und er Ch apt er VII I.
Eve ry leg isl ati ve ass emb ly exi sti ng und er a fed era l con sti tut ion is mer el y a
35 sub -ord ina te law mak ing bod y, who se laws are of the nat ure of by -law s, val id
whi lst wit hin the aut hor it y con fer red upo n it by the con sti tut ion , but inv ali d or
unc ons tit uti ona l if the y go be yon d th e lim its of suc h aut hor it y. The re is an
app are nt abs urd it y in com par in g the leg isl atu re of the
Uni ted Sta tes to an Eng lis h rai lwa y, com pan y or sch ool boa rd, but the
40 com par iso n is jus t ... a law pas sed by Con gr es s whi ch is in exc ess of its leg al
po we rs as con tra ven ing the Co ns ti tu ti on is inv ali d;. .. a law pas sed by
Con gre ss is cal led an Act of Con gre ss; and if ult ra vir es is des cri bed as
ùn con sti tut ion al’ ; a law pas sed by the Gre at Eas ter n Rail way Com pan y is
cal led a ‘b y-law ', and if ult ra vir es is cal led , not ùn con sti tut ion al' but
45 ìn val id '.
END QUOTE
.
p 109 9-3-2009
p110
And, Mr G. H. Schorel-Hlavka relies on books published on CD format by Mr G. H. Schorel-

Hlavka in the INSPECTOR-RIKATI® series, MAY JUSTICE ALWAYS PREVAIL® in
regard to constitutional and other legal issues which are further set out in that material.
The following book was published on 30 September 2003, on which day also 4 copies were
5 provided to the High court of Australia, with a further 4 on 3 October 2003.
INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X
10 The following book was published on 6 July 2006 as part of Appeals before the County
court of Victoria, which appeals on 19 July 2006 were successful and the convictions set
aside.

15 ISBN 0-9751760-2-1
Talbot v. Janson, 3 U.S. 133 (1795)

QUOTE
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state,
20 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;
25 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
30 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,
and the homage, which, under every modification of government, must be paid to the
inherent rights of man.
35 END QUOTE
.
The following is from a document published by the Commonwealth of Australia, purporting that
somehow a change of legislation (in 1979) can alter the application of the Constitution!
QUOTE
40 3.7 People born on Norfolk Island have Australian citizenship in the same way that people
born on the mainland have. The Australian Citizenship Act 1948 applied on Norfolk Island
from its inception in the same way that it did on the mainland until 1985. In that year the
Commonwealth Government removed references to 'British subjects' from the Act and
p 110 9-3-2009
p111
consequential changes to Commonwealth, state and territory electoral laws restricted future
enrolment to Australian citizens only. Based on the preference expressed by the Norfolk
Island Government of the day, the Commonwealth Government repealed all the provisions
of the Norfolk Island Act 1979 which related to citizenship.
5 3.8 The reason for the change was the desire to remove references to ‘British subject’
which were seen as discriminatory. The Australian Citizenship Amendment Act 1983 had
sought to remove all discriminations apparent in the existing act. As a consequence, the
Norfolk Island Assembly was offered the choice of references to ‘British subject’ in the
Norfolk Island Act
10 4 Department of Immigration and Multicultural Affairs web page on citizenship,
http://www.immi.gov.au/citizen/index.html, quoted in Department of Transport and
Regional Services, Submissions, p 95. 5 Department of Transport and Regional Services, Submissions, p 96.
6 Department of Transport and Regional Services, Submissions, p 96. CITIZENSHIP 17
1979 being deleted, which was consistent with amendments for the Commonwealth and
15 state parliaments, or of the citizenship requirement being deleted altogether, which was
consistent with the requirements for local governments at that time.
END QUOTE
.
20 National Australasian Convention) (See Folder 33 of the CD)
QUOTE Mr. ISAACS (Victoria).-
and the Federal Parliament is not to be [start page 349] at liberty to define the
jurisdiction of that High Court so as to take away any portion of it.
END QUOTE
25 And
QUOTE
Mr. WISE (New South Wales).-I think that the clause as it stands is a necessary
safeguard to the individual liberty of the subject in every state. It does not interfere with the
right of every state to alter its laws and to deprive its citizens of their liberty of being tried
30 by a jury of their fellow countrymen, but it does say that the Federal Parliament shall
be compelled to submit any person accused of a breach of the federal laws to trial
before a body of his own fellow citizens, in the state to which he belongs. If this clause
were not here offenders under the Federal Parliament might be removed under an executive
act from one part of the Commonwealth to another, to be tried by resident magistrates, and
35 the Federal Executive would be given authority which might permit them to
tyrannously interfere with the liberties of every subject in the community.
END QUOTE
.
40 National Australasian Convention)
QUOTE
Mr. OCONNOR (New South Wales).-
The honorable member will not deny that there should be a guarantee in the
Constitution that no person should be deprived of life, liberty, or property without
45 due process of law.
END QUOTE
.
That is why Mr G. H. Schorel-Hlavka for years now in his books is campaigning for the
creation of an OFFICE OF THE GUARDIAN, a constitutional council, to advise the
50 Government, the people, the Parliament and the Courts as to constitutional powers and
p 111 9-3-2009
p112
limitations. Currently it is unchecked (constitutional limitations) and Mr G. H. Schorel-Hlavka

for example faces a mountain of problems where those could have been avoided had such
OFFICE OF THE GUARDIAN been created and provided check and balances as to seek to
prevent abuse of powers. No one could possibly accept that the Commonwealth of Australia
5 could simply amend the application and meaning of the Constitution by merely legislating in
some act for the removal of British subject and create some alternative without the people’s
consent.
The onus is upon the Prosecutor to prove that there was a Referendum held that approved for
10 the legislative powers of the state as to define/declare State citizenship to be transferred to the
Commonwealth of Australia. After all, without “Australian citizenship” not even the prosecutor
has a legal standing in Court. Indeed, Mr G. H. Schorel-Hlavka would be the only qualified
person in Court to litigate, as being a Defendant is not depending upon her being an “Australian
citizen” as any one, regardless of legal status, can be a Defendant.
15
A major problem appears to be that we have people who on obtaining a law degree, consider
themselves to be knowledgeable in areas of law in which they are not fully versed. This was
recognised by the Framers of the Constitution, in that they left the original interpretation of the
Constitution in the hands of the High Court of Australia with Privy Council as the final
20 arbitrator. The truth is that lawyers obtain certification to be able to practice law on behalf of
other people as requested, that gives them a legal status to do so on the requestors behalf, but
beyond that it has no meaning as to their ability to be constitutional experts, even if they happen
to argue in some case constitutional issues. We even have judges who are appointed to the High
Court of Australia and having perhaps been involved in one or two cases concerning some
25 constitutional issue, are then appointed, even though not fully trained or versed in constitutional
law and its application. Yet, they are then placed to adjudicate in constitutional issues with
opinions rather than the strict application of the Constitution being applied. It is no wonder then,
that so much has gone wrong, where judges who take Hansard quotations out of context, and
then adjudicate contrary to the intentions of the Framers of the Constitution as to what was
30 clearly set out by them, when the Convention Debates (Official Record of the Debates of the
National Australasian Convention) are referenced fully. The Sykes v Cleary case is a clear
example as a point in case as is the Sue v Hill case an example of ill conceived judgments.
To argue constitutional issues, the person must, as has my Attorney Mr G. H. Schorel-Hlavka,
read in full the Constitution Convention Debates (Official Record of the Debates of the
35 National Australasian Convention) and imbibe them as to feel you were present at the very
time that the Framers of the Constitution were when they were discussing the very issues at great
length, as to the protection of the freedoms of the people of the Commonwealth of Australia as
the people depended on their considerations and the Framers of the Constitution were well aware
of such at the time. This Mr G. H. Schorel-Hlavka has done, that is he explored what debate
40 and conclusions occurred during the conventions since 1981 and how the Framers of the
Constitution modified their views to finally come to the Commonwealth Constitution Bill that
later, with some amendments came to be known as the Commonwealth of Australia
Constitution Bill 1900 (UK).
In neither Sue v Hill, Sykes v Cleary, Tasmania Dam (Franklin Dam) and numerous other
45 prominent cases were the Convention debates (Official Record of the Debates of the National
Australasian Convention) extensively and necessarily explored as to ascertain the original
interpretation of the meaning behind the Constitution, as has been done by Mr G. H. Schorel-
Hlavka as shown in his writings and published books, the lack of which not having been done by
those in trust of the Constitution has resulted in numerous LEGAL FICTIONS which have
50 become accepted as if they are a constitutional reality.
p 112 9-3-2009
p113
Can it be held that the political and legal evolutionary nature between the Federation of the
Australian States and the UK was such that the nature of the former colonies fundamentally
changed with Federation? Not really, all that was permitted was for the colonies to rename
themselves each as a State but remaining “DOMINIONS” in their own right and to form a
5 “political Union” under the British Crown. The Imperial links between the States as part of the
Commonwealth of Australia and the UK were never terminated, historically, and were never
intended to ever be so terminated by the Framers of the Constitution and which very
Constitution as it was intended then, and as such, was what was accepted by the people of the
States (Colonies/Dominions of Briton within the continent known as Australia), with Section 128
10 being placed into the Constitution, being that a Referendum was seen to be necessary at Law to
be held to ascertain the will of the people to allow changes to be made to the Constitution, that
would allow the Commonwealth of Australia to act within the Authority granted to it by the
States. Without the Commonwealth of Australia gaining the said Authority from the people
within the State, and in the majority of the States that joined to form the Commonwealth of
15 Australia, in the manner of a Section 128 of the Constitution, then any authority to act outside of
the power granted when not having been granted by the people is null and void. It is by the will
of the people within the States that to the Commonwealth of Australia power is granted and its'
ability to act on their behalf and such is not possible without the people's stated will.
While in 1958, some take as evidenced by the convention of the Territorial Sea and Continguous
20 Zone, China Ocean Shipping Co v South Australia, and even more so probably since the British
Nationality Act 1948 (Imp) and/or the Nationality & Citizenship Act No 83 1948 (Cth), that
independence of the Imperial system appeared to be seen, argued and accepted, and as indeed the
High Court of Australia in Sue v Hill also pursued this notion of independence of the Imperial
system, nonetheless, the Framers of the Constitution set out, as evidenced in the Hansard
25 Debates (Official Record of the Debates of the National Australasian Convention), that the
only way to make changes to the Constitution of the Commonwealth of Australia was within the
Section 128, Referendum of the Constitution. It is this, with plain clarity, that Mr G. H.
Schorel-Hlavka has in much detail, put forward thoroughly in his writings and on which
material, having been entered into the Courts of Victoria, I rely. It is also with his thoroughness
30 in reading and using the Convention Debates (Official Record of the Debates of the National
Australasian Convention) in his cases that Mr G. H. Schorel-Hlavka won his matters in the
Courts of Victoria.
As TERRY PATRICK SHARPLES in his case before the High Court of Australia No. B104 of
35 2001, TERRY PATRICK SHARPLES Applicant MAJOR GENERAL PETER ARNISON A. O.
First Respondent PETER DOUGLAS BEATTIE Second Respondent DESMOND JOSEPH
O’SHEA Third Respondent stated;
QUOTE
Lord Shaw of Dunfermline Scott vScott 1913 AC at 477 – despotism “In the darkness of
40 secrecy, sinister interest and evil in every shape have full swing. Only in proportion as
publicity as publicity has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice”
END QUOTE
.
45 The High Court of Australia has constitutionally no powers to amend the Constitution, not even
if it wanted to do so, nor can the High Court of Australia do so for whatever Government of the
Day may be in power. It is obligated to hand down judicial decisions as to the intentions of the
Framers of the Constitution, as amended from time to time by successful Section 128
Referendums.
50
p 113 9-3-2009
p114
EITHER WE HAVE A CONSTITUTION OR WE DON’T BUT WE CANNOT AND NEVER

SHOULD ACCEPT THAT THE POWER OF THE ELECTORS' IS STOLEN AWAY FROM
THEM BY NON ELECTED LAWYERS WHOM, ALTHOUGH IT MAY SUIT THEM, SO AS
TO WIN A CASE AND SO WISH TO AMEND THE CONSTITUTION IN THEIR FAVOUR
5 AND OR THEIR PERSONAL VIEWS.
.
Hansard 17-3-1898 Last sitting day of the Constitution Convention Debates; (Official Record
of the Debates of the National Australasian Convention)
QUOTE Mr. DEAKIN.-
10 After that comes encouragement in the reflection upon the giant stride towards
prosperity, power, and prestige which this union will enable us to accomplish. What a
charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is
15 also a charter of peace-of peace, order, and good Government for the whole of the
peoples whom it will embrace and unite.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do
not intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
20 unmoved upon this momentous occasion. We who are assembled in this Convention
are about to commit to the people of Australia a new charter of union and liberty;
we are about to commit this new Magna Charta for their acceptance and
confirmation, and I can conceive of nothing of greater magnitude in the whole
history of the peoples of the world than this question upon which we are about to
25 invite the peoples of Australia to vote. The Great Charter was wrung by the barons
of England from a reluctant king. This new charter is to be given by the people of
Australia to themselves.
END QUOTE
Again;
30 QUOTE
This new charter is to be given by the people of Australia to
themselves.
END QUOTE
.
35 Politicians of different colours would like to take the power to infringe upon constitutional
limitations and set themselves up, so to say, as dictators but this Constitution was wisely created
to prevent this. The Framers of the Constitution elaborated in great detail what the proper legal
processes were and made clear that any other attempt to seek to amend the Constitution without
consent expressed by the electors by way of Section 128 Referendum of the Constitution would
40 be ULTRA VIRES.
Sue v Hill 1999 163 ALR 648 Gleeson CJ, Gummow J, Hayne J at p 38 para 96.
QUOTE
Section 5(2) the oath of allegiance and oath of office, before the above assembly by the
45 first respondent was to the Queen of Australia. Under the 1986 Letters Patent the oath of
allegiance was to Her Majesty Elizabeth the Second, by the Grace of God of the United
Kingdom of Great Britain and Northern Island and of Our other Realms and Territories
Queen, Head of the Commonwealth, Defender of the Faith.
END QUOTE
p 114 9-3-2009
p115
.
It doesn’t matter if Her Majesty did or didn’t give Royal Assent to the Australian Act 1986, as
after all Royal Assent was given to the Cross Vesting Act since declared ULTRA VIRES and not
worth the paper it was written on. Neither did the British Parliament somehow have any
5 legislative powers to be able by some backdoor manner seek to amend the application of the
Constitution as accepted by the Commonwealth of Australia, as it could not ever amend the
Constitution by any British legislation, due to the independence obtained by the Constitution
itself, and the Section 128 Referendum requirement.
As for the right of the public to know what the Framers of the Constitution intended so they
10 could make an informed decision and further, trust that those on whom they rely on to make
interpretations of those decisions likewise be able to make use of what the Framers of the
Constitution intended as debated by them.
15 QUOTE
Mr. REID.-No, I do not propose to bring it on at this stage of this clause at all. I feel
that after the very long time we have taken over this question the public have a right to
know our final mind upon it.
END QUOTE
20 As for the right of the States to alter their constitutions, without offending the Commonwealth of
Australia Constitution Act 1900 (UK) the message however is very clear, that the citizens would
not loose any rights, rather gain their independence along with their British subject rights.
25 QUOTE
Dr. COCKBURN (South Australia).-I have always argued against the latter part of
this clause, because it is stereo-typing the mode of altering our state Constitutions.
When this Commonwealth is called into existence the power of the various states with
regard to all legislation of an external character-all legislation affecting shipping and
30 immigration, and [start page 645] other legislation which concerns the empire at large-
will be taken away from them, and I do not see why, under the new Constitution, the
Parliaments of the various states should not have the power of altering their
Constitutions in any way they desire.
Mr. BARTON.-There is nothing to prevent that.
35 Dr. COCKBURN.-At present, if any state wants to alter its Constitution, even as
regards a purely local affair relating, say, to the manner of the exercise of the suffrage, it
has first to have an absolute majority in its own Parliament, and then to go through the
tedious process of a reference to the Imperial authorities. Now, seeing that under this
Constitution all matters which really concern the outside relations of the state will be
40 removed from the legislative powers of the state, I do not see why the states should not
have the power to alter their Constitutions at their own will. They will only have power
to deal with purely local concerns. I certainly think that we might very well strike out all
the words after "Parliaments." That would accomplish the object I have in view.
Clause 103 was struck out.
p 115 9-3-2009
p116
Mr. BARTON (New South Wales).I think it might be well to adopt the amendment
suggested by Mr. Symon. There is a small portion of the amendment I left out
inadvertently, I now beg to propose it, as follows:-
The Constitution of each state of the Commonwealth shall, subject to the provisions of
5 this Constitution, continue as at the establishment of the Commonwealth, or as at the
admission or establishment of the state, as the case may be, until altered in accordance
with the provisions of its Constitution.
Mr. TRENWITH.-If this clause were not in the Bill at all, would not the Constitution
still remain the same?
10 Mr. BARTON.-I am not quite sure of that, and there are a great many people
who, reading a Federal Constitution, are apt to call out, as we constantly hear them
crying out in the colony from which I come-"They want to take from us our rights
and liberties under our Constitution, and give us nothing back." That is to say,
there is a considerable demand for an express declamation on the face of the
15 Federal Constitution that the states shall keep their Constitutions, and also have
power to alter them if they want to do so.
Mr. KINGSTON.-You might stop at the word "altered."
Mr. BARTON.-I think Mr. Symon's suggestion is the correct one.
Mr. ISAACS.-The states that are established after federation will not want that.
20 Mr. BARTON.-Yes, because they will come in under such terms as may be arranged
between them and the Commonwealth, but they should come in under the same
guarantee as those who originally joined, as far as their Constitution is concerned.
Mr. Barton's new clause, in lieu of clause 103, was agreed to.
END QUOTE
25 .
QUOTE
Mr. REID.-Take the matter of irrigation and navigation. The question of irrigation is
30 not within the legislative powers of the Commonwealth, though navigation clearly is.
Suppose there was a Commonwealth law dealing with navigation and a State law
dealing with irrigation, as they both affect the same fluid questions may arise between
them, but surely it is not intended that in regard to a matter within the sphere of the
state, and not under the control of the federal power, the federal law should prevail.
35 However, I shall be quite content if my honorable and learned friend will consider the
matter. The clause as it stands is, expressed in very general terms, and it seems to me
that it provides that it the law of the Commonwealth upon some other matter infringes
upon a state law affecting a matter of exclusively state concern the state law must go
under.
40 Mr. SYMON (South Australia).-I would suggest to the leader of the Convention that
the amendment suggested by the Premier of New South Wales is not necessary. It is
implied that the law of the Commonwealth is a law within the legislative power of the
Commonwealth.
p 116 9-3-2009
p117
Mr. HIGGINS.-Otherwise it is not a law.
Mr. REID.-It is a law until it is declared not to be a law.
Mr. SYMON.-Clause 101 is merely declaratory. If there is any inconsistency between

a law of the state and a law of the Commonwealth it is for the High Court to determine
5 which shall prevail, and the court will, of course, be bound to consider whether the law
of the Commonwealth is, or is not, within the legislative power of the Commonwealth.
If it is not, it will be null and void. The clause is necessary to establish in the
Constitution the principle that where the Commonwealth legislates within its legislative
power its laws must prevail.
10 Mr. ISAACS (Victoria).-It was decided in the case of Norton v. Shelby County that an
unconstitutional law of Congress is no law. Any law of the United States which is
unconstitutional is illegal, because it is forbidden by the Constitution, and may,
therefore, be disregarded. If the law of the Commonwealth is constitutional it will
necessarily over-ride the [start page 644] law of the state. The clause will not give a law
15 of the Commonwealth either validity or invalidity.
Mr. REID.-Then it is not wanted.
Mr. SYMON.-It is merely declaratory. The clause was agreed to.

END QUOTE
.
20 Therefore, the High Court of Australia can only declare a law to be within constitutional powers
not take it upon itself to somehow enlarge constitutional powers that were not provided merely
because it considered it could do so.
In the following quotation the then clause 52 now is Section 51 of the Constitution.
25 .
QUOTE
The Hon. E. BARTON: All these in clause 52 are in the parliament!
30 The Hon. I.A. ISAACS: But there am many provisions of the bill in relation to
the parliament which are not powers vested in the parliament.
END QUOTE
.
A clear example to this is, that whilst the Commonwealth of Australia within Section 69 has
35 provided for the positions of certain Departments, it has no constitutional powers to amend
Section 69 as to be able to dispose of these very Departments, ie:-telecommunication, postal
services or the likes, that were referred to in this Section 69 of the Constitution.
For example Subsection 51(v) was created because of Section 69 and not the other way around.
The Framers of the Constitution made clear, that the “Constitution” was a living document as it
40 could be amended by the electors by way of a successful section 128 of the Constitution
referendum. They recognized then that over the years the electors may desire to amend the
Constitution as to make it flexible to their desire and needs. Indeed, they noted the lack of
flexibility in the United States Constitution that did not appear to have such provision.
.
p 117 9-3-2009
p118
Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of

QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
5 we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states. We
10 have our Constitution framed in this way with a Senate to guard what? The interests of the
states, so that the Commonwealth shall not intrude one inch into what is retained as the
executive rights and jurisdiction of the states.
END QUOTE
.
15 “Citizenship” was and remains to be a legislative power of the States, for where there was no
referendum to amend the Constitution then it remains as such. The Framers of the Constitution
specifically refused to use the United States system of “citizenship” and as such it would be
wrong to consider what US authorities are dictating in that regard. This possible considering of
what the US authorities were dictating in that regard, one may erroneously perceive from reading
20 Quick & Garran.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Te; Re Minister for I
[2002] HCA 48 (7 November 2002, the High Court of Australia refers to “non-citizen” even
though this is not a constitutional term at all. What appears to be the case is that judges having
handed down judgments, based on other past judgements, albeit the judgements were erroneous
25 judgments, and by this the core problem therefore continues perpetually, rather then the judges
obtaining via their own research the true constitutional meaning of “Australian citizenship” or
any other constitutional issue, and in so doing reconstitute the Constitution as it was originally
intended to operate by the Framers of the Constitution.
30 Mr G. H. Schorel-Hlavka has achieved, what lawyers have not by quoting in his books every
quotation from the Debates (Official Record of the Debates of the National Australasian
Convention) relevant to “citizenship” and by this, being able to reveal matters no one has
considered or contemplated since federation due to the High Court of Australia banning the
usage of the Convention Debates (Official Record of the Debates of the National Australasian
35 Convention) in 1904, until they were allowed to be used again around 1992.
.
QUOTE Mr. MUNRO:
40 The governor-general is to appear here as the representative of the Queen. Under
our constitution the Queen is to be in some sense present among us. The only way in
which we can have her present is through her representative, and if her
representative is to be elected by us, and not by herself, he will be not her
representative, but ours.
45 END QUOTE
.
QUOTE Mr. BARTON:
p 118 9-3-2009
p119
Our purposes of government may be national while we preserve the utmost loyalty to
the monarch whom the constitution sets over us. As the hon. member, Sir George
Grey, has expressed it, we have constituted the Queen a member, and the highest
member, of our parliament. The association of the Queen with the action of the
5 commonwealth is distinct, and is firmly embedded in the whole bill. If that is done,
there can be no association of the idea of republicanism with this bill.
END QUOTE
.
Again, the Constitution belongs to the people, not the Courts, the Government or the legislators,
10 as they merely are servants of the people and cannot dictate changes of their own accord, and if
they do, then the changes made are ULTRA-VIRES, null and void affording no obedience.
.
Hansard 2-3-1898 Constitution Convention Debates; (Official Record of the Debates of the
National Australasian Convention) (See Folder 33 of the CD)
15 Mr. SYMON.-
It is not a lawyers' question; it is a question of whether any one of British blood who
is entitled to become a citizen of the Commonwealth is to run the risk-it may be a
small risk-of having that taken away or diminished by the Federal Parliament!
National Australasian Convention); (See Folder 33 of the CD)
Mr. BARTON.-
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
25 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.
.
30 the National Australasian Convention) (See Folder 33 of the CD)
Mr. BARTON.-Yes; and here we have a totally different position, because the
actual right which a person has as a British subject-the right of personal liberty
and protection under the laws-is secured by being a citizen of the states. It must be
recollected that the ordinary rights of liberty and protection by the laws are not
35 among the subjects confided to the Commonwealth. The administration of [start
page 1766] the laws regarding property and personal liberty is still left with the
states.

Mr. SYMON.-
We must rest this Constitution on a foundation that we understand, and we mean that
every citizen of a state shall be a citizen of the Commonwealth, and that the
Commonwealth shall have no right to withdraw, qualify, or restrict those rights of
45 citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this
Constitution, to hand over our birth right as citizens to anybody, Federal Parliament or any
one else, and I hope the amendment will not be accepted.
.
p 119 9-3-2009
p120
The very danger now appears to be the purported WAR AGAINST TERROR where the
Commonwealth of Australia now seeks to infringe upon the civil rights of the electors, which
infringements of rights have come about from declaring a war on a false premises that there were
supposed weapons of mass destruction, that have never yet been found, and then by some absurd
5 declaration on some supposed supposition a war against individuals and their rights is now
pursued. The Constitution does not permit this and it is well overdue that lawyers sitting at the
bench of any Court accept and indeed express these concerns that no matter what trickery the
Commonwealth of Australia may desire to put into play, that they, the lawyers, will not play a
part in it and will insist that legislative provisions that are not within constitutional powers are
10 and remain ULTRA VIRES. To allow otherwise is to allow dictatorship and tyranny!
.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Te; Re Minister for I
[2002] HCA 48 (7 November 2002
1. On the other hand, s 34 of the Constitution acknowledges the possibility of change
15 in the relationship between the UK on the one hand and Australia on the other. It
does so by providing that the Parliament may alter the qualifications for elections so
as to eliminate any requirement that candidates "be a subject of the Queen, either
natural-born or for at least five years naturalised under a law of the United
Kingdom". Further, in Sue v Hill[32], Gaudron J remarked:
20 "Of greater significance is that, by s 51(xxxviii) of the Constitution, the
Commonwealth has power to legislate with respect to 'the exercise within the
Commonwealth, at the request or with the concurrence of the Parliaments of
all the States directly concerned, of any power which can at the establishment
of this Constitution be exercised only by the Parliament of the United
25 Kingdom or by the Federal Council of Australasia'. It was pursuant to
s 51(xxxviii) that the Parliament of the Commonwealth enacted the Australia
Act 1986 (Cth)".
.
1. In Kirmani v Captain Cook Cruises Pty Ltd [No 1][11], Gibbs CJ said of the Statute
30 of Westminster that:
"[i]ts principal purpose was to give to the Dominions (Canada, Australia,

New Zealand, the Union of South Africa, the Irish Free State and
Newfoundland) that autonomy and equality of status with each other and
with the United Kingdom which had been recognized by the Balfour
35 Declaration of 1926. By a process of gradual development, the status of
the Dominions had changed; as a matter of constitutional practice they had
come to be regarded, not as colonies, but as sovereign communities."
2. The constitutional term "subject of the Queen" must be understood in the light
of the development and evolution of the relationship between Australia and the
40 UK and between the UK and those other countries which recognise the
monarch of the UK as their monarch. In particular, the expression "subject of the
Queen" can be given meaning and operation only when it is recognised that the
reference to "the Queen" is not to the person but to the office. That recognition
necessarily entails recognition of the reality of the independence of Australia from
45 the UK.
(Kirmani v Captain Cook Cruises Pty Ltd [No 1] (See Folder 01 of the CD)
p 120 9-3-2009
p121
.
There is no such possibility for the Constitution somehow to alter in structure that the States, as
indicated before, could loose their legislative powers to define/declare citizenship without the
Constitution itself having been amended by Section 128 of the Constitution. The Delegates
5 made clear that it was a flexible Constitution that could be amended in time using Section 128 of
the Constitution. Therefore, if it was held that there was a need of a change to the manner the
Constitution was to apply, then it was for the electors, who after all own the Constitution, to
approve any amendments by Section 128 referendum, not some judges appointed by a
Government of the Day by trying to bring within the scope of the Constitution something that
10 was not only excluded but was deliberately excluded from the Constitution at the first onset of
the creation of the DRAFT of the Commonwealth Constitution Bill in 1891 and maintained so
ever since as there is no evidence of this having been consented to be changed. As quoted "Of
greater significance is that, by s 51(xxxviii) of the Constitution, the Commonwealth has
power to legislate with respect to 'the exercise within the Commonwealth, at the request or
15 with the concurrence of the Parliaments of all the States directly concerned, of any power
which can at the establishment of this Constitution be exercised only by the Parliament of
the United Kingdom or by the Federal Council of Australasia'. It was pursuant to
s 51(xxxviii) that the Parliament of the Commonwealth enacted the Australia Act 1986
(Cth)". What a HUGE leap or “slight of hand” is such a claim made. The suggestion being that
20 a power to legislate is moved by consensus of State Parliament to the Federal Council of
Australia without the need of a Section 128 Referendum to grant such shift of legislative power.
I challenge the Prosecution to find the source of this said ability of transferring legislative power
from the States to the Federal Council, other than an unconstitutional agreement between people
who should know better.
25 The purported Australia Act 1986 seeks to circumvent by due process of law, amendments of the
Commonwealth of Australia Constitution Act 1900 (UK) by amending the application of the
Constitution and the due process of law required for such changes as was intended by the
Framers of the Constitution without referendum. It would effectively result in a possible
successful robbing of Australians of their British nationality and purporting to
30 RETROSPECTIVELY endorse the unconstitutional Australian Citizenship Act 1948.
.
Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship
35 of the 1891 Bill, there are several clauses not quite in their right place in it, and it would be
well to alter their order. The Drafting Committee will look into that matter, and at the end
of the proceedings will ask hon. members to give their attention to such alterations as they
may suggest. It will be better to transpose some of the clauses. With reference to Sir
Edward Braddon's amendment, which is put in a better form than that suggested by Mr.
40 Symon, I do not think there is any actual necessity for it. I find in Maxwell on
"Interpretation of Statutes," 1st edition, page 192, this passage:
It is where the enactment would prejudicially affect vested rights, or the legal character of
past Acts, that the presumption against a retrospective operation is strongest. Every Statute
which takes away or impairs vested rights acquired under existing laws, or create a new
45 obligation, or imposes a new duty, or attaches a new disability in respect of transactions or
considerations already past, must be presumed, out of respect to the Legislature, to be
intended not to have a retrospective operation. Thus the provision of the Statute of Frauds,
p 121 9-3-2009
p122
that no action should be brought to charge any person on any agreement made in
consideration of marriage, unless the agreement were in writing, was held not to apply to
an agreement which had been made before the Act was passed. The Mortmain Act, in the
same way, was held not to apply to a devise made before it was enacted. So it was held that
5 the Act of 8 & 9 Vict., c. 106, which made all wagers void, and enacted that no action
should be brought or maintained for a wager, applied only to wagers made after the Act
was passed.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle
10 underlying the matter is this: that a court in construing an Act assumes that Parliament
never intended to do a thing which is unjust. I am quite sure that Mr. Symon will agree that
the provision is not necessary.
Mr. SYMON: Hear, hear.
15 National Australasian Convention) (See Folder 33 of the CD)
Mr. OCONNOR.-I think the honorable member (Mr. Higgins) will understand, from his
experience of the law, that there are differences of opinion about these matters, and we
only want to ascertain what the law really is. I have a very clear view about it myself, and I
think the view I have is in accordance with what we will all admit to be the justice of the
20 case. Further, if there was any doubt at all about the preservation of rights which have been
acquired under any bounty laws made before the 30th June, 1898, I think that point should
be made perfectly clear in the Constitution, so that those rights should be preserved. But
after that date any statute which merely gives the right from day to day, as the offers under
the statute are accepted, should, of course, cease on the imposition of uniform customs
25 duties. I call the honorable member's (Mr. Isaacs') attention to a passage in Maxwell on the
Interpretation of Statutes, page 299, which states-
It is chiefly where the enactment would prejudicially affect vested rights, or the legal
character of past transactions, or impair contracts, that the rule in question prevails. Every
statute, it has been said, which takes away or impairs vested rights acquired under existing
30 laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in
respect of transactions or considerations already past, must be presumed, out of respect to
the Legislature, to be intended not to have a retrospective operation.
Then Maxwell gives a number of instances to illustrate this principle, which is very well
known.
35 Mr. REID.-Express words are required to make anything retrospective, to impair a

contract.
Mr. OCONNOR.-That is well known, and this provision, when it says the Act is to
cease and have no effect, cannot possibly touch the validity of any contract which has been
created while the Act was in full force and effect.
40 Sir GEORGE TURNER.-Should you not also provide for accruing rights?
p 122 9-3-2009
p123
Mr. BARTON.-I will see that the clause is made quite clear with regard to all existing
rights.
5 Mr. HOLDER (South Australia).-I beg to move-
That the following new clause stand, part of the Bill:-In the event of any law passed by
the Federal Parliament being declared by any decision of the High Court to be ultra vires
of this Constitution the Executive may, upon the adoption by absolute majorities in both
Houses of the Legislature, within six months after the decision of the High Court, of [start
10 page 1718] resolution thereto directing, refer the law to the electors under section 121, and
if approved as therein provided the Constitution shall be deemed to have been enlarged,
and the law shall be conclusively deemed to have been intra vires of this Constitution from
the passing thereof.
In the opinion of our constituents, or of a great many of them, one grave objection to this
15 Constitution is that over everything is the High Court. In the opinion of many, the legal
formulae and legal proceedings usurp in this Constitution the place which the people have
occupied in the state Constitutions. If we accept the Constitution, the final appeal will be,
not to the people as represented by the Parliaments, but to the High Court. I admit freely
that as the Constitution is a deed of partnership, it is absolutely necessary to have the High
20 Court to interpret it, and to see that the various co-partners keep in all that they do within
the four comers of the deed to which they have agreed. At the same time, so rooted is the
objection to the position which law occupies in this Constitution that it will be well if we
can meet that objection in any way by placing in the hands of the people the final appeal, at
least in some cases where the final appeal would otherwise be to the High Court. I do not
25 need to quote from many opinions of others to support what I have said as to the general
view that federation means a great deal of law. I noticed in the daily papers in this city a
few days ago a report of an address by Professor Harrison Moore, the professor of law at
the Melbourne University, in which he said that the legal profession had not had very much
to do of late, but that under the Federal Constitution now under consideration the lawyers
30 would have plenty of work. I do not take that comment as coming from one who is hostile
to federation, but simply regard it as the expression of Professor Harrison Moore's
deliberate opinion that federation under this scheme would mean any amount of work for
the lawyers. That is just what the people do not want, and if we can by any means lessen
the law work and place the final decision of some matters in the hands of the people, from
35 that point of view we shall do well. I can quite conceive that again and again the Federal
Parliament might pass laws involving comparatively small extensions of the Constitution
as we have it before us, but yet involving such amendments as, if the people were appealed
to, they would certainly indorse-amendments not of sufficient weight and importance to be
submitted to the people for their endorsement unless the laws in question were challenged.
40 Therefore, in this amendment I propose that in the event of any law passed by the Federal
Parliament being declared by the court to be ultra vires, then the Federal Parliament may,
by an absolute majority of both Houses of the Legislature, within six months of the adverse
decision of the court, submit the matter to the electors for a referendum in the same way as
provided in the clause dealing with ordinary amendments of the Constitution. We have
45 deliberately decided previously that the Constitution should only be amended by direct
appeal to the electors, in which the vote shall be counted in two ways. I do not propose to
p 123 9-3-2009
p124
alter that provision in the slightest degree. We have provided that measures altering the
Constitution shall only come into force after they have been carried by absolute majorities
of both Houses. I include the same provision in this clause. Before a matter can be sent to
the referendum, both Houses must by absolute majorities agree thereto.
5 Mr. HIGGINS.-If so, how do you improve the position by this clause?
Mr. HOLDER.-The honorable member asks me what effect my clause would have. I
will suggest a case. Suppose that it is desired to effect an alteration in the Constitution. The
steps necessary for that now would be to introduce into the Federal Parliament a Bill to
amend the Constitution. That Bill must go through [start page 1719] its various stages, be
10 passed by absolute majorities in both Houses, and must then go to a referendum of the
people. But suppose that without any knowledge on the part of the Parliament that that
would be the case the major portion of the Bill was found to be outside the limits of the
Constitution, and that it was held to be ultra vires. Honorable members will begin to see
what this clause would achieve in that event. Supposing in this case the Bill had been
15 passed without any belief by the Federal Parliament that the provisions were ultra vires of
the Constitution, and some months afterwards the courts were petitioned to exercise
jurisdiction, and pronounced the measure ultra vires; if, then, the Constitution had to be
amended in the ordinary way, it would follow that, after the Bill had been passed, after
some steps might have been taken under it, after it had been pronounced ultra vires, the
20 whole matter would have to be begun again at the very beginning. You would have once
more to introduce a measure to Parliament, to pass it through all its stages, to take a vote of
the people, so that all your work has to be done again, whereas under my clause the
procedure would be this: The court pronounces the Bill ultra vires; at once, or at anytime
within six months thereafter, the two Houses of the Legislature are asked to pass addresses,
25 if they consider it important enough, and think it right to do so, and all the time that would
otherwise be spent in passing a new measure through Parliament is saved, because the
carrying of the two resolutions would not take nearly so long as the passing of an Act of
Parliament. And then this provision comes in. If on the referendum the majority of the
states and of the people approve-
30 The Constitution shall be deemed to have been enlarged, and the law shall be conclusively
deemed to have been intra vires of this Constitution from the passing thereof.
Mr. GLYNN.-Is not that putting matter of legislation in the Constitution?
Mr. HOLDER.-No, I do not contemplate for a moment putting any legislative matter in
the Constitution.
35 Mr. GLYNN.-That is what its effect will be.
Mr. HOLDER.-I do not see how that result could come about.
Mr. ISAACS.-This makes it retrospective altogether.
Mr. HOLDER.-I will answer that interjection, which certainly has great weight.
Mr. OCONNOR.-Will the honorable member answer this question: Supposing a law is
40 affirmed by this process, and afterwards another law involving the same question is
proposed, is that also made good, or must there be a referendum for that?
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Mr. HOLDER.-I have two interjections to answer. I will deal first with that of the
Attorney-General of Victoria. In reply to his statement that this makes the law altogether
retrospective, I simply say that the proposal is to make the law retrospective in this sense:
That during the interval throughout which it was, according to the judgment of the court,
5 ultra vires, the decision of the people afterwards could make it intra vires.
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It
might not have been an offence to do a certain thing if the High Court declared the law to
be ultra vires, but if that law was made intra vires from an antecedent date, all the persons
who did that thing might be subject to punishment.
10 Mr. HOLDER.-I have great respect for the eminent legal authority of the Attorney-
General of Victoria, and he may help me to overcome that difficulty, and attain the
advantage I seek to attain. Mr. O'Connor asks me, if this were adopted, and under a certain
referendum a certain Bill was declared to be intra vires, whether that position would cover
any similar Bill adopted afterwards? My answer to that is this. I wish it [start page 1720]
15 should do so, that the enlargement of the Constitution should be not merely for the
inclusion of the particular measure which had been passed, but for the inclusion of the
particular matter concerning which otherwise that Bill had been, but for the referendum,
ultra vires. I do not profess to be a draftsman, and I gather that the Drafting Committee
have been kind enough to undertake-especially for lay members-to put into proper
20 phraseology any resolutions which the Convention has by a majority declared to embody
principles which they wish to have included in the Bill. So I am content, if the Convention
adopts my proposition as being an indication of its will, to leave the wording of the clause
as it shall appear finally entirely in the hands of the Drafting Committee, and shall be very
glad of any help they can give to suggest a method of covering what the honorable member
25 has suggested, so that my intentions my be fully met. do feel that in any question where the
point of the law ultra vires is raised, not the High Court but the people ought to be the final
appeal-that if I or any one else is on the other side of this controversy concerning a
measure, and I take the ground that it is ultra vires or that it is not, the final appeal
concerning what the Federal Parliament may do ought not to rest with the High Court,
30 which can simply determine it on the dry question of law, but ought to rest with those
people who, themselves, have the right to say whether or not the Constitution shall be
enlarged to take in the particular question at issue. I do not hesitate to affirm that, if we can
place this final appeal in the hands of the people instead of keeping it in the hands of the
High Court, we will have done very much indeed to popularize this measure, not only in
35 South Australia, but in other colonies. For I do assure honorable members that the presence
of so large a number of lawyers as there are in this Convention has helped to give colour to
the suggestion, which is very widely prevalent, that this Constitution is being made for the
lawyers and for the courts.
Mr. SYMON.-Nonsense!
40 Mr. GLYNN.-That is pandering to the popular cry.
Mr. BARTON.-I think my honorable friend ought to do his best to dispel any such base
slander as that.
Mr. HOLDER.-I can assure my honorable friend that I will do my best to dispel any
such base slander as that. I am not stating a matter in which I express my own thought or
45 my own feeling, but I repeat that in what I said just now I am expressing the thought and
the feeling of a great many persons outside the Convention who are not so well informed as
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we are. If we can remove a misapprehension, if we can cure a ground of distrust, by

making the people themselves the final arbiters in their own cause, we shall surely be doing
well, and by doing that we will not be endorsing, but will be going the very best way
possible to refuse an indorsement to that opinion which was dissented from just now.
5 Sir EDWARD BRADDON.-Why not make them the first arbiters, too?
Mr. SYMON.-Why not make them the High Court at once?
Mr. HOLDER.-I have already shown that the adoption of my clause would save a large
amount of time. It is quite impossible that the people can sit as Judges, because the
function of Judges is one thing, and the function of electors of the Commonwealth is quite
10 another thing. I am not confounding these two. The people are absolutely incompetent to
judge whether a certain law is or is not ultra vires, and I would not dream of committing
that charge to the people, for there are no persons less fit than the general electors-taken all
together on a referendum-of any country to decide whether this or that is true law.
Mr. ISAACS.-You say the people accept the position in law; but they are asked whether
15 they will change the Constitution.
[start page 1721]
Mr. HOLDER.-That is exactly it. I would never dream of asking the people to reverse a
legal decision arrived at by the High Court. I have been specially careful in the form of the
amendment to avoid any such thing. I do not dream that the High Court will on one day say
20 that a certain Bill is ultra vires, and that the people shall the day after, or some months
after, say the court was wrong. That is not what I suggest. I suggest that the people should
accept the decision of the High Court that the law was ultra vires, but should say it ought
not to be ultra vires-that the Constitution should be enlarged so that such a decision could
not be given again. I do not wish to leave it to the people to say that the decision was
25 wrong, but to leave them to say that the Constitution should be so enlarged so as to-make
such a decision impossible in the future. That is a different thing from making the people
Judges or giving them a judicial position. I really feel very hopeless as a layman addressing
the Convention on a very technical legal point like this. I quite anticipate-and though this is
not a wise thing to say, I do not mind saying it-I quite anticipate defeat before I sit down.
30 At the same time, I shall not cease to regret defeat if it comes, nor shall I cease to believe
that this way out, or some other which the Drafting Committee could easily suggest, ought
to be adopted, so as to avoid the possibility of anybody outside saying, with any
appearance of truth, that this is a lawyer-written Constitution. I want to move the motion in
a slightly different form. I want to leave out the word "High" before "Court" in each case,
35 so that the word "court" only shall stand. I mean that word to cover not merely the decision
of the High Court, but the decision of the last court of appeal from the High Court, if that
appeal be made. With that alteration, I move the amendment standing in my name.
National Australasian Convention) (Folder 33)
40 Mr. SYMON.-Then what is the use of debating it? This amendment may be described as
another means of spending [start page 1726] £30,000 or £50,000 on a referendum, without
the safeguards which should be essential in every possible proposal for amendment of the
Constitution, in a debate upon the different stages of the Bill. The machinery we have got
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with regard to amendments of the Constitution would be as effectual and more satisfactory
than what is proposed in this amendment. I agree that if this means anything it means
neither more nor less than an amendment of the Constitution. Mr. O'Connor, in a very
pregnant interjection made in the course of Mr. Holder's speech yesterday, said-"How
5 would you deal with the case of a Bill going in substantially the same direction and dealing
with the same subject-matter?" Mr. Holder replied that he would leave it with the Drafting
Committee to frame a provision to deal with cases of that kind. But the objection entirely
dissolves the whole ground on which the honorable member bases his amendment, because
it would have the effect, as I think Mr. Glynn interjected, of introducing into the
10 Constitution the legislation which was called in question by the Federal High Court.
Mr. LEAKE.-It is also retrospective in its effect.
Mr. SYMON.-That is the point I was coming to, and I am much obliged to the honorable
member for calling my attention to it. But I do not wish to elaborate the point, because it
must be seen that the proposal has that vice. In addition to that, what does my honorable
15 friend (Mr. Holder) do? We all of us have the interests of the states at heart; but my
honorable friend leaves the state law to be declared ultra vires. Under this proposal you are
to protect the laws of the Commonwealth in an extraordinary and burdensome way, but not
the state laws, which the High Court may declare to be ultra vires. Why should not the
people of the states have a similar power of saying that their law is perfectly good, and that
20 they want it? That is what I meant by saying that this is a lop-sided arrangement. If you
want to amend the Constitution, amend it; but if you are dealing simply with a law declared
to be ultra vires, then I say that the states should be treated equally with the
Commonwealth, and it should be open to their particular citizens to say whether or not
they approve of the proposed alteration of the law. But you would introduce the greatest
25 complication into the Constitution by doing anything of the kind. An amendment of the
Constitution is a matter of grave importance, and to say that a Commonwealth law declared
to be ultra vires by the High Court is to be placed in a different position, and is to be
treated in a special way, in which a law of a state declared to be ultra vires is not treated, is
grossly unfair. You must, to be just, deal with both the states and the Commonwealth upon
30 the same method in regard to alterations of the Constitution.
Mr. HOLDER.-Will you support me if I put that in?
Mr. SYMON.-My honorable friend should not ask me to support such a proposition as
that, because he knows that I would do nothing of the kind; but I say that if his proposal is
to be adopted with regard to the laws of the Commonwealth, it is unjust that the states
35 should not be treated in the same way. I say that the states and the Commonwealth should
have the same advantage in this respect.
Sir JOHN DOWNER.-And why confine it only to questions of ultra vires?
Mr. SYMON.-Exactly. Why not say, that all laws of the Commonwealth shall be valid in
all respects, and that all laws of the states should also be valid? Then we should get into a
40 nice pickle. If a law is of vital and serious consequence to the Commonwealth, and is
declared to be ultra vires by the High Court, there is under the Bill an appeal to the people,
by means of the provision for amending the Constitution. Let that appeal be made, and let
the Constitution be amended; but do not let us introduce, a further [start page 1727]
opening for expense, and also for injustice, by an inefficient means of really amending the
45 Constitution, but which at the same time will leave unredressed the grievances which may
exist on the part of the state. I therefore hope that this amendment will be rejected as
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altogether unnecessary, and as cumbrous and expensive; and as not even having the colour
of bringing about the redress of difficulties, which my honorable friend stated at the outset,
because the provision is not one which will have the effect of diminishing the possibilities
of litigation under this Constitution. No one more deeply sympathizes with the object of
5 the clause than I do, but some more effectual way must be devised to deal with this
question. This, instead of being an improvement, will be a distinct blemish on the
Constitution we have to frame.
Mr. ISAACS (Victoria).-I agree with Mr. Symon that there are difficulties raised which
are almost insuperable against the clause as it stands. There is not a single point in which
10 more facility is given for amendment of the Constitution than already exists in the Bill.
You want under this clause, as you want under the 121st clause, an absolute majority of
both Houses. You also want a majority of the states voting, and a majority of the people
voting.
Mr. BARTON.-An absolute majority of both Houses directing a referendum, not for
15 passing a law.
Mr. ISAACS.-But they have already passed a law, and I take it that if you can get an
absolute majority of both Houses directing the referendum, there is no practical difference
between that and an absolute majority again passing the law. Because they virtually passed
the law as far as they could. Therefore, it seems to me there is no advantage gained from
20 the stand-point of desiring a better means of getting an amendment of the Constitution.
Then, I feet that it is open to the destructive criticism that it makes the law retrospective,
and after the court, possibly the Privy Council, has decided that the law is ultra vires, and
people have acted on that decision, being compelled to, act on that decision, or being
compelled to refrain from acting on the decision of the court, as the law is positive or
25 negative; then we should have under this referendum a law made operative as from the
time of its original passing, and penalties, both personal and pecuniary, might be incurred
through no fault of the individuals who had incurred them. That seems to me to be a defect
to which we cannot close our eyes.
Mr. WISE.-Besides, it would punish everybody who took the advice of a man who
30 interpreted the law properly.
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
act, or refrain from acting. That is a position which none of us would willingly get into,
and the retrospective action is wrong. I quite sympathize with the moving spirit that
actuated Mr. Holder, because I feel, as I said before, that our means of amending the
35 Constitution are lamentably defective. It is an attempt by Mr. Holder to prevent the strict
interpretation of the law from running counter to public opinion, even public opinion which
may be definitely expressed by means of a referendum. Complaints have been made, as we
know, in America that the Supreme Court is master of the Constitution; that there is no
appeal from it, and that the means of amending the Constitution to get rid of any particular
40 decision, which time and circumstances have made utterly contrary to the feelings of the
nation, are practically irremediable. I should say, in reference to the so-called safety-valve
that has been provided in America, even that one stigmatized as being only tolerable
because it avoids a worse state of affairs, namely, swamping the Supreme Court, is a mode
which I find Mr. Dicey refers to and does not reprove. In the last edition of his work on the
45 Constitution, 1897, pages 166 and 167, he actually points out without disapproval, and, in
fact, with [start page 1728] a certain amount of approbation, the possibility of appointing
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more Judges to the Supreme Court; the new Judges being, as he says, lawyers who share
the convictions of the ruling party. When we see that state of things referred to in such
terms by so eminent and impartial a writer as Mr. Dicey, we must not lightly treat the
considerations brought forward by Mr. Holder and dismiss them from our minds. I agree
5 that the mode he suggests is one which we can hardly follow. If it were proposed that a law
passed by both Houses, and thus expressing what is desired by public opinion-and by some
strict construction of the Constitution that desired end has been found impracticable-and
that, both Houses having agreed to that law, it should be competent for the Executive, upon
an absolute majority of either House, to send it to a referendum of the states and the people,
10 I could understand that a better remedy was provided, because you would have the states
protected on the original vote passing the Bill, and again in the referendum. If that course
were adopted, I think this clause could be framed so as to give us a better position than we,
have under the Bill. But if we agree in the first instance that both Houses should pass the
Bill, as we must, and then require both the Houses to refer the Bill to the people and the
15 states, who are to pass it, we shall not get one bit further than what we have got under the
121st clause. Unless the honorable member is willing to amend his clause in that respect,
we should only complicate matters, and if retrospective operation were given to it we
should be lending ourselves to what would be, quite unintentionally on the part of the
honorable member, a gross injustice.
20 Mr. BARTON.-What is the honorable member's suggestion?
Mr. ISAACS.-The adoption by an absolute majority in either House of Legislature,

instead of by both Houses. It presupposes both Houses have passed the Act; that the Act is
declared to be invalid; that subsequently public opinion has been found to be of such a
nature as to press for an adoption of such a law, and it is impracticable, because the
25 Constitution does not admit of it. Then either House must pass by an absolute majority a
resolution, and the Executive must refer the law to a dual referendum of the states and the
people. A double protection would be given, and that would ease the minds of a great many
people, not only in this colony, but, I dare say, in New South Wales, as to the question of
an amendment of the Constitution. It does not touch the question of deadlocks in ordinary
30 legislation, but only the amendment of the Constitution, and would go far to pave the way
for a better understanding on the subject than we now possess.
The CHAIRMAN.-I may shorten the debate if I point out that the amendment suggested
by Mr. Isaacs would be tantamount to an alteration of the decision already arrived at in
clause 121. In that clause it is decided that majorities of both Houses are necessary to alter
35 the Constitution. If Mr. Isaacs' amendment were carried it would negative that proposition,
and I do not think we can do that at this stage.
Mr. ISAACS.-I should like to mention one consideration which has not perhaps occurred
to your mind. I understood the decision was that, if the two Houses came into conflict, the
question should be referred on a motion passed by absolute majorities of both Houses. But
40 this is not a question of conflict between the two Houses, but where the two Houses have
agreed, and the Supreme Court has said that it is outside the Constitution. That seems to me
a totally different question, when the two Houses may not be in conflict, but either House
may pass this resolution, and then the Executive can refer it. I think that is a great
distinction.
45 The CHAIRMAN.-I would point out that clause 121 says that the provisions [start
page 1729] of the Constitution shall not be altered except in the manner following-
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that is, by an absolute majority of the Senate and of the House of Representatives.
That seems to me to be conclusive.
Mr. BARTON (New South Wales).-I share in the objections which so many honorable
members have offered to this clause. I certainly hope that I shall not be taken to be
5 speaking simply as a lawyer, and with a desire that this Constitution should be under the
law and lawyers, when I express my objections to it. I agree with what has been said to the
effect-although there is a great weight to be attached to Mr. Holder's argument-that the
clause will operate as an appeal from the High Court to a popular authority-an appeal to an
authority which, at any rate, is not a competent authority on a question of law. As to the
10 question of making a law, the people ultimately are no doubt the best authority, but on the
question as to the reading of a law they can scarcely be the best authority. There is a
difficulty in this clause which also presents itself to me-that is, it works only one way.
Where a law has been decided by the High Court to be ultra vires, by this appeal to
the people it may be decided to be intra vires of the Constitution from the beginning.
15 Take the case of a law which the High Court decides to be within the Constitution, and
which the people have a very strong opinion is outside the bounds of the Constitution, and
that the court has been wrong there. Now, if it is right to make a clause of this kind operate
for the purposes of appeal in the one case, it is equally right to make it operate for the
purposes of appeal in the other.
20 Mr. ISAACS.-That is not necessary. The people have it in their power to repeal an Act if
they do not like it.
Mr. BARTON.-In this case the object is to enable the people to make valid that which
under the Constitution is invalid. If you make the clause work one way, what reason is
there for not making it work the other? With reference to the general effects of the clause,
25 it seems to be clear that where the High Court has wrongly decided a matter to be
intra vires of the Constitution, you provide no sort of way of dealing with it excepting by
repeal. It may be that repeal is the easiest method. This amendment is intended to get rid of
the decision of the High Court, which may be perfectly correct in law. I do not think that is
a course which will commend itself to our general sense and experience as being desirable.
30 I know that we are providing for new conditions, and there is weight to attach to every
argument which relies upon the novelty of these conditions. But still I do not think that this
is a course which should commend itself. If you take the case of any decision of the High
Court that a law is ultra vires-and the position would be worse if Mr. Isaacs' amendment
were adopted-having got that decision from the authority you yourselves have set up as the
35 ultimate arbiter, within your own bounds at any rate, on questions of constitutional law,
you then say that the finding of that tribunal may be rendered nugatory just as the
Executive, having a majority in Parliament, may choose by submitting it to the people. It
may be assumed that the Executive will feel the popular pulse before they do it. The
conclusion then is, that you deliberately weaken that will be the effect, although it may, not
40 be the intention-the authority of that tribunal. Would not such a provision operate very
badly? I quite see that the Hon. Mr. Holder has not submitted his clause with the view of
taking the appeal from the High Court to the people on a matter of law. All I am arguing is,
that the effect of the clause would be the same as if he had done so. There is not much
difference between saying, as is said in this clause, that when the High Court has decided a
45 matter to be ultra vires you may remit it to the people, who may determine that it is within
the powers of the Constitution, which would be a reversal in one sense of the decision of
the High [start page 1730] Court, and saying boldly, and at once, that if the High Court
declares the law to be ultra vires the people may decide that it is intra vires.
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Mr. SYMON.-It is a matter of form.
Mr. BARTON.-Yes, the difference between these two procedures is simply a matter of
form. In the clause the words are used "and the law shall be conclusively deemed to have
been intra vires of this Constitution from the passing thereof." The peculiarity of this part
5 of the clause is very striking, because the words I have read follow these words-"and if
approved as therein provided the Constitution shall be deemed to have been enlarged." If
the Constitution is to have been deemed to have been enlarged for that contingency it is
only because the law was ultra vires. If you carry that further and say that it is intra vires,
what do you want with any enlargement? It is quite inconsistent. It amounts to saying that
10 the Constitution has been enlarged, and that is only necessary if the law was ultra vires.
And yet it is followed by the words-"and the law shall be conclusively deemed to have
been intra vires," which is to decide that the High Court was not right but wrong.
Mr. KINGSTON.-That is like the passing of a Validating Act.
Mr. BARTON.-No; a Validating Act does not put things in that way, and I say that that
15 is an objection of more than form. When you say that the Constitution shall have been
deemed to have been enlarged, you decide that the Constitution requires amendment in that
particular, but when you say that the law shall be conclusively deemed, to have been intra
vires from the passing thereof, then you decide that the Constitution does not require
amendment. There is very considerable not only ambiguity, but contradiction in the
20 proposal. What are we asked to authorize the people to do-to decide that the High Court
was right? In which case their decision could only have effect if it operate as an
enlargement, or to decide that the High Court is wrong, in which case the Constitution is
sufficient from the beginning. We ought to know which road we are to take before we vote
on the clause. It seems tome that the objection there is a strong one, and that it requires
25 some answer. I shall not now repeat the arguments adduced by other honorable members
against the clause. That is unnecessary. But I do say that I have not been at all convinced
that it is our duty to adopt the clause.
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick)
has suggested. The Constitution would be deemed to be enlarged by the passing of a law,
30 but if you wanted to alter or amend it you could not do so.
Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution
having been enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
35 Mr. BARTON.-No, you would have to take the question of whether the Constitution
was really amended or enlarged; but the decision might mean that the Constitution did not
require enlargement at all.
Mr. HOLDER (South Australia).-I will deal with the speeches in the order in which they
were given. I note that, although the Hon. Mr. Symon said that the matter was not worthy
40 of a moment's consideration, he proceeded to talk for about half-an-hour about it, and his
speech consisted mainly in setting up bogies that were not in the amendment, and knocking
them down again after they had sufficiently frightened the Convention. I need say no more
about these bogies, because they were not present in my mind, and they do not appear in
the amendment. I am obliged to the Hon. Mr. Isaacs for the speech he delivered, which
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shows that the feeling of which I have a [start page 1731] knowledge is also within his
knowledge the feeling that the Constitution we are framing is somewhat too rigid, that the
modes of amendment are few and difficult, and that greater ease of expression of the
popular will would be an advantage. I am pleased to have the recognition which the
5 honorable and learned member gives of the fact that these views are not confined to South
Australia. As to the particular points raised both by Mr. Isaacs and the Hon. Mr. Barton, I
want to say this: That what is contemplated is actually an amendment of the Constitution. It
is not intended to be an amendment by a side-wind, but an amendment with all the
necessary delay and all the necessary expense which it is contemplated any such
10 amendment should involve. I did not imagine for a moment that I was going to make a
short cut to any amendment of the Constitution by which damage might be done to either
state or national interests. I think that I have duly safeguarded both state and national
interests, while providing a speedier method of altering the Constitution. So far as the
objection raised by the Hon. Mr. Barton on the matter of a law being declared ultra vires is
15 concerned, there is no idea of submitting to the popular verdict any legal decision of the
High Court or of any court. When the Parliament determines under this clause to refer any
matter to the people they accept the verdict of the court as being true and right. If they do
not accept it their course will not be to refer it to the people, but to send it to a court of
appeal. The fact that they do refer it to the people shows that they recognise that the matter
20 was outside the powers of the Federal Parliament, and that they seek to have those powers
enlarged. The form of words adopted means this-that the enlargement of the Constitution is
to be somewhat dated back. It is to be retrospective, not in the sense of a challenge, but
rather the reverse, of the decision of the court. The enlargement of the powers is made
retrospective cover the particular question at issue. With regard to the last point mentioned
25 by Mr. Isaacs, on the suggestion of Dr. Quick, I referred to it yesterday evening when
replying to an interjection from the Hon. Mr. O'Connor. I can conceive of almost no case
where the enlargement of the Constitution would not be sufficiently clear and definite in its
outline to enable anything to be done which might be required in the future. I will take a
case as illustrating the general trend of the amendment. Supposing such a case occurs as
30 occurred recently in the United States, and that an Income Tax Bill is passed by the Federal
Parliament. It is discovered-though I do not think it could be under our Constitution, I am
merely discussing it as an illustration-that the Federal Parliament has exceeded its powers.
The High Court or some other competent court rules to that effect. The conviction of the
Federal Parliament is that the people intended that they should have this power, and that it
35 is owing to an oversight or to a technical defect in the law that they have not the power.
Now, two courses may be taken. They may rely on clause 121. In that case the Bill which
has been passed by the Federal Parliament, and declared ultra vires by the High Court,
would be laid aside, and a measure would be introduced for the amendment of the
Constitution. That measure would have to be passed by both Houses, and a vote of the
40 people taken upon it. If the vote was given in the affirmative, a new Bill would have to be
brought in providing for the income tax. The first law would be absolutely set aside, and a
very considerable delay would take place, although the popular will had all along been in
its favour, and the popular belief was that the making of such a law was within the powers
of the Federal Parliament. My clause would shorten matters very much. As soon as the
45 court declared the Bill to be ultra vires the Federal Parliament could [start page 1732] refer
the matter to the popular vote. If the vote was given in the affirmative, then that law would
have been from its first passage intra vires. The enlargement of the Constitution enabling
the Federal Parliament to pass an Income Tax Bill would be dated back to the time when
the Bill was first passed, and it would have been all along the law of the land. The financial
50 arrangements of the whole Commonwealth, which might have been made on the faith of
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that Income Tax Bill being intra vires, would not be upset, as they would be if a new Bill
had to be introduced. I am afraid that there is only too much force, however, in the
suggestion of the honorable and learned member that my proposed new clause-I did not see
it before-is in conflict with clause 121. I will therefore forestall any declaration to that
5 effect upon the part of the Chair by asking leave to withdraw my amendment. I hope, a
little later on, after consultation perhaps with the honorable and learned member, to bring
forward a proposal which will not be antagonistic in its terms to clause 121, and which will
tend to make the amendment of the Constitution in accordance with the popular will as
speedy a process as possible.
10 Sir EDWARD BRADDON.-Does the honorable member think that if an appeal were
made to the people to upset the judgment of the Supreme Court, the case could be so
clearly put before the electors that they would be able to give an intelligent verdict upon
it?
Mr. HOLDER.-I should not dream for an instant of asking the people to consider, much
15 less to either confirm or reverse, any decision of any competent court, because I do not
think that they would be competent to pronounce an opinion in regard to such a matter. But
I would allow the people to say-"The Supreme Court is right, and to cure the defect in the
Constitution which has been sprung upon us we want to see it enlarged, so that another
similar decision will be impossible." I do not propose to ask the people to adjudicate upon
20 the decisions of the Supreme Court, but I wish to give them power to enlarge the
Constitution in accordance with the decision of the Supreme Court.
Mr. Holder's proposed new clause 121A, was, by leave, withdrawn.
Preamble:-Whereas the people of [here name the colonies which have, adopted the
Constitution] have agreed to unite in one indissoluble Federal Commonwealth under the
25 Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution
hereby established: And whereas it is expedient to make provision for the admission into
the Commonwealth of other Australasian Colonies and possessions of Her Majesty: Be it
therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament
30 assembled, and by the authority of the same, as follows:-
Mr. GLYNN (South Australia).-I beg to move-
That the following words be inserted after the word "Constitution" (line 2):-"humbly
relying upon the blessing of Almighty God."
I wish to move the insertion of this form of words in the preamble, because I think that it
35 embodies the spirit of the nine suggestions in regard to this matter made by the various
Houses of Parliament which have considered the Draft Constitution. The words I wish to
insert are simple and unsectarian. They are expressive of our ultimate hope of the final end
of all our aspirations, of the great elemental truth upon which all our creeds are based, and
towards which the lines of our faiths converge. They will, I think, recommend the
40 Constitution to thousands to whom the rest of its provisions may for ever be a sealed book.
If our whole ceremonial life is not touched with insincerity and its symbols are not empty
and vain, if there be a reality greater than we can grasp at the back of all our aspirations; a
mind as eternal as time, and infinite as space, to which the phenomena of the world and our
lives are but a passing phase; if the invocation of the Divine blessing and sanction upon the
45 many occasions of our [start page 1733] daily life is not a mere empty formality we cannot,
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at the moment of entering into a union so full as this of the possibilities of good and evil, of
contentment or regret-of, in the words of Jeremy Taylor, felicity or lasting sorrow-refuse to
give expression to the central fact of all our faiths. In an affirmation of pure reverence and
submission such as this, the adherents of all creeds, sinking their differences of form and
5 method, can join, and will find the spirit of toleration in them growing strong under a sense
of their common aim. It will thus become the pledge of religious toleration. We may be
met again by mere considerations of propriety. We may be told that everything has its
appropriate time and place, and that words of faith should not be embedded in the preamble
of an Act of Parliament. But I would point out that this objection proves too much, and, if
10 pushed to the full limit of its application, would deprive half the offices and courtesies of
life of their highest significance. The stamp of religion is fixed upon the front of our
institutions, its letter is impressed upon the book of our lives, and that its spirit, weakened
though it may be by the opposing forces of the world, still lifts the pulse of the social
organism. It is this, not the iron hand of the law, that is the bond of society; it is this that
15 gives unity and tone to the texture of the whole; it is this, that by subduing the domineering
impulses and the reckless passions of the heart, turns discord to harmony, and evolves the
law of moral progress out of the clashing purposes of life. In these days of too-often dying
ideals, when thoughts that once would burn are chilled by the besetting touch of
commonplace; when utility seems the measure of virtue, and the greater passions pale
20 under the searching rays of reason; when affection, love, duty, the divine but reckless
instincts of patriotism, have been expressed in the language of metaphysics, or become the
subjects of mental pathology; when the ardour that fires our noblest aims is damped by a
calculating cynicism, and the glow of poetry goes out before the glare of materialism; it is
well that we should set in our Constitution something that may at times remind us of ideals
25 beyond the counter, and of hopes that lift us higher than the vulgar realities of the day. I
speak not as one whose mind is braced beyond the measure of his neighhours by an
adamantine faith, or any of those consolations that come from the larger hope. Say what we
will, there are moments, short though they may be, when the puzzle of life and destiny
staggers the sense, when the shadow is cast and obscures the vision, and the best of us feel
30 our weakness and loosening grip of the unseen. Then it is that the symbols of faith and
reverence attest their power and efficacy, and brace the reeling spirit with a recovered
sense of the breadth and continuity of man's consciousness of an inscrutable Power ruling
our lives. This is the basic principle, the central theme, of all our creeds and dogmas-the
great elemental truth, in which all their differences disappear. Let us, then, in no spirit of
35 Pharisaism-for we speak as much for others as for ourselves-fix in the Constitution, this
mark of the Omnipotent, this stamp of the Eternal, this testimony of feeling, or it may be
but of desire, in which faith may find a recommendation, and doubt discover no offence.
The CHAIRMAN.-I would call the attention of the members of the committee to the
fact that a number of amendments have been suggested by various Houses of Legislature
40 which are in effect of a similar nature to the proposal of the honorable member (Mr.
Glynn). I would, therefore, suggest that any honorable member wishing to bring the
amendment into conformity with the language of any of these parliamentary suggestions
should move an amendment upon it inserting the words suggested by the Houses of any of
the colonies. All these suggestions are [start page 1734] practically of the same effect,
45 though expressed in different words.
Mr. HIGGINS (Victoria).-In Adelaide I voted against the insertion in the preamble of a
form of words proposed by the honorable member (Mr. Glynn), and it is with regret that I
shall have to repeat that vote-at the present time, because the Constitution contains no
provision to obviate the had effect which the insertion of these words will have. I am glad
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that I am so far justified in my opposition to the proposal made by the honorable member
in Adelaide by the fact that no Assembly and no person has suggested the insertion of the
words which were then proposed to be inserted by the honorable member. Those words
were utterly inappropriate. I freely admit that the words which he now proposes to insert
5 are not quite so objectionable, though I still think that the amendment could be improved
upon. I say frankly that I should have no objection to the insertion of words of this kind in
the preamble, if I felt that in the Constitution we had a sufficient safeguard against the
passing of religious laws by the Commonwealth. I shall, I hope, afterwards have an
opportunity, upon the reconsideration of the measure, to bring before the Convention a
10 clause modified to meet some criticisms which have been made on the point, and if I
succeed in getting that clause passed it will provide this safeguard. I shall have an
opportunity then of explaining how exceedingly important it is to have some such
safeguard. There is no time for me now to go into an elaborate history of this question so
far as the United States of America are concerned. I have investigated it with a great deal
15 of care, and I can give the result of my investigations to honorable members, who, I hope,
will not believe that I would misled them if I could help doing so with regard to the effect
of what has taken place there. Because they had no words in the preamble of the
Constitution of the United States to the effect of those which the honorable member (Mr.
Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of
20 enforcing religion. There was a struggle for about thirty years to have some words of
religious import inserted in the preamble. That struggle failed; but in 1892 it was decided
by, the Supreme Court that the people of the United States were a Christian people.
Mr. BARTON.-That decision was followed practically by the decision that they were a
Christian people.
25 Mr. HIGGINS.-Yes. That decision was given in March or February, and four months
afterwards it was enacted by Congress that the Chicago Exhibition should be closed upon
Sundays, simply upon the ground that Sunday was a Christian day. The argument was that
among a Christian nation you should enforce Christian observances.
Mr. BARTON.-Could they not have closed the exhibition on Sundays without that
30 enactment?
Mr. HIGGINS.-I think the honorable and learned member will hear me out in this, that
there is nothing in the Constitution of the United States of America, even indirectly,
suggesting a law of this sort. No doubt, the state of Illinois could have passed such a law,
because it has all its rights reserved. But there was nothing in the Constitution enabling the
35 Congress to pass. a law for the closing of the exhibition Sunday. As soon as ever those
parties who had been working for the purpose of getting Sunday legalized throughout the
United States found that decision given in February, 1892, that "this is a Christian nation,"
they followed it up quickly, and within four months there was a law passed for the closing
of the exhibition on Sunday.
40 Mr. WISE.-Was that held to be constitutional?
Mr. BARTON.-It has not been challenged yet.
[start page 1735]
Mr. HIGGINS.-It has been in force for five and a half or six years, and it was struggled
against, as my honorable friend will know. There was a strong monetary interest against it,
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and they, no doubt, took advice, but I will say frankly that I am not aware that it has been
held to be constitutional. I understand though that there has been no dispute among the
legal men in that country as to its being constitutional. Honorable members will hardly
realize how far the inferential powers have been extended in America. I should have
5 thought it obvious, and I think Mr. Wise will agree with me, that the Congress had no
power to pass a law of that sort.
Mr. WISE.-I admit that your statement puts a very different complexion on the matter.
Mr. HIGGINS.-I hope it does, because it will become a very important matter. I should
have thought that it was not within the scope of Congress to pass a law, no matter how
10 righteous, to close the exhibition on Sunday, but I find, on looking to a number of
decisions in the United States, that it has been held again and again that, because of certain
expressions, words, and phrases used in the Constitution, inferential powers are conferred
upon the Congress that go beyond any dreams we have at present. I know that a great many
people have been got to sign petitions in favour of inserting such religious words in the
15 preamble of this Bill by men who know the course of the struggle in the United States, but
who have not told the people what the course of that struggle is, and what the motive for
these words is. I think the people of Australia ought to have been told frankly when they
were asked to sign these petitions what the history in the United States has been on the
subject, and the motive with which these words have been proposed. I think the people in
20 Australia are as reverential as any people on the face of this earth, so I will make no
opposition to the insertion of seemly and suitable words, provided that it is made perfectly
clear in the substantive part of the Constitution that we are not conferring on the
Commonwealth a power to pass religious laws. I want to leave that as a reserved power to
the state, as it is now. Let the states have the power. I will not interfere with the
25 individual states in the power they have, but I want to make it clear that in inserting
these religious words in the preamble of the Bill we are not by inference giving a
power to impose on the Federation of Australia any religious laws. I hope that I shall
be excused for having spoken on this matter. I felt that it was only fair that honorable
members should know that there is a damer in these words, if we are to look to the
30 precedent of the United States. I will help honorable members in putting in any suitable
words provided that we have sufficient safeguards.
Mr. LYNE.-Will you explain, before you sit down, where the particular danger is?
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the
Commonwealth powers which ought to be left to the states. The point is that we are not
35 going to make the Commonwealth a kind of social and religious power over us. We are
going into a Federation for certain specific subjects. Each state at present has the power
to impose religious laws. I want to leave that power with the state; I will not disturb
that power; but I object to give to the Federation of Australia a tyrannous and over-
riding power over the whole of the people of Australia as to what day they shall
40 observe for religious reasons, and what day they shall not observe for that purpose.
The state of Victoria will be able to pass any Sunday law it likes under my scheme. It
can pass any law of that sort now; but surely it is a proper thing for a state, and it is not a
proper thing for the Commonwealth, to exercise this power. I feel that honorable members
who value state rights reserved [start page 1736] to the states, who value the preservation
45 of the individuality of the states for state purposes, will agree with me that it is with the
state we ought to leave this power, and that we ought not to intrust it to the
Commonwealth. For instance, our factory laws are left to the state. Those laws provide for
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a certain number of hours of rest, and that employes shall not work on Sundays, and so
forth. If we leave the factor laws to the state we should also leave this question of the
observance of Sunday to the state. I will not take it from them. At the same time, I am not
going, no matter what the consequences are, to help to intrust this power to the
5 Commonwealth. I want the people of the different states to manage their own affairs as
well as they can. I may say frankly that I, rightly or wrongly, am one of those who think
that the Christian or religious observance is no good if it is enforced by law. I am one of
those who think the religious observance is of no value unless it is the outcome of a man's
own character, and the outcome of a man's own belief.
10 Mr. SYMON.-You do not want to keep it always stuck up in the form of a sentence in
your bathroom.
Mr. HIGGINS.-My learned friend, I believe, is staying at the Melbourne Club, and I am
glad that they have taken the opportunity to inculcate sound doctrine upon him.
Mr. WALKER.-Is not there an acknowledgment of the Almighty in the schedule of the
15 Bill? Is not this perfectly consistent with the schedule
Mr. HIGGINS.-No; I think the honorable member will see that a recital in the
preamble to the Constitution is a very different thing from an oath which may be
taken in a court of justice or anywhere else.
Mr. DOUGLAS.-You will find that you can make an affirmation without referring
20 to Almighty God. Any person can make an affirmation who has no belief in Almighty
God.
The CHAIRMAN.-I do not think the honorable member is in order in making a speech.
Mr. HIGGINS.-I thank the honorable member for being disorderly under the
circumstances. I think there is a good deal of force in what he says, but I also see this,
25 that the taking of an oath in a court of justice or on taking office is quite a different
thing from having in a well thought-out preamble to a Constitution any reference to
religious belief.
Mr. WALKER.-It is prescribed in the schedule.
Mr. HIGGINS.-That may be, but a schedule is quite a different thing from a
30 preamble.
Again;
Mr. ISAACS.-There is one additional difficulty, which my honorable friend (Dr. Quick)
has suggested. The Constitution would be deemed to be enlarged by the passing of a law,
but if you wanted to alter or amend it you could not do so.
35 Mr. HOLDER.-That is the point Mr. O'Connor mentioned last night.
Mr. BARTON.-That is to say that, the law having been passed, and the Constitution
having been enlarged, the Constitution has been amended.
Mr. ISAACS.-That is all. You could not alter a word of it.
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Mr. BARTON.-No, you would have to take the question of whether the Constitution
was really amended or enlarged; but the decision might mean that the Constitution did not
require enlargement at all.
5 National Australasian Convention) (Folder 33)
PREAMBLE.
Whereas the people of [here name the colonies which have adopted the Constitution]
have agreed to form one indissoluble Federal Commonwealth under the Crown of the
United Kingdom of Great [start page 1184] Britain and Ireland, and under the Constitution
10 hereby established: And whereas it is expedient to make provision for the admission into
the Commonwealth of other Australasian Colonies and possessions of Her Majesty: Be it
therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament
assembled, and by the authority of the same, as follows:-
15 Mr. DEAKIN: On the question of the preamble I have already called the attention of Mr.
Barton to a change made in the opening expression. In the original Bill it was:
Have agreed to unite in one Federal Commonwealth.
But here it is:

Have agreed to form one indissoluble Federal Commonwealth.
20 The introduction of the word "indissoluble" is a decided improvement; but in other

respects I beg to suggest that the words "agreed to form" are, to use an expression of Mr.
Barton in referring to another matter, not so stately an opening as:
Agreed to unite in one federal Commonwealth.

If I may be permitted to refer to clause 3 we find the words:
25 Shall be united in a Federal Constitution.
Both of these are legal expressions, and it appears to me, if I may be so bold as to
offer a suggestion to gentlemen who have far more experience in drafting than I have
had, and to whose judgment I willingly bow, that they are legal rather than
expressive, they do not appeal to the common understanding to a layman.
30 Mr. BARTON: To save time, I may say that I will willingly accept the amendment.
Mr. DEAKIN: I do not propose to move an amendment, but I merely suggest it.
Word "form" struck out and "unite in" substituted.

Again;
have agreed to form one indissoluble Federal Commonwealth under the Crown of the
35 United Kingdom of Great [start page 1184] Britain and Ireland, and under the Constitution
hereby established:
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Therefore the Federal Commonwealth cannot be dissolved from the British Crown as it was
indissoluble and any purported indissoluble Federal commonwealth under a Queen of Australia
not being the British Crown would clearly be ULTRA VIRES.
Now to consider;
5 Statute of Westminster Adoption Act 1942
No. 56 of 1942
An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to
obviate Delays occurring in its Passage, and to effect certain related purposes, by
adopting certain Sections of the Statute of Westminster, 1931, as from the
10 Commencement of the War between His Majesty the King and Germany.
[Assented to 9 October 1942]
WHEREAS certain legal difficulties exist which have created doubts and caused
delays in relation to certain Commonwealth legislation, and to certain regulations made
thereunder, particularly in relation to the legislation enacted, and regulations made, for
15 securing the public safety and defence of the Commonwealth of Australia, and for the
more effectual prosecution of the war in which His Majesty the King is engaged:
AND WHEREAS those legal difficulties will be removed by the adoption by the
Parliament of the Commonwealth of Australia of sections two, three, four, five and six
of the Statute of Westminster, 1931, and by making such adoption have effect as from
20 the commencement of the war between His Majesty the King and Germany:
BE it therefore enacted by the King's Most Excellent Majesty, the Senate, and
the House of Representatives of the Commonwealth of Australia, as follows:
1. This Act may be cited as the Statute of Westminster Adoption Act 1942.
2. This Act shall come into operation on the day on which it receives the Royal
25 Assent.
3. Sections two, three, four, five and six of the Imperial Act entitled the Statute of
Westminster, 1931 (which Act is set out in the Schedule to this Act) are adopted and
the adoption shall have effect from the third day of September, One thousand nine
hundred and thirty-nine.
30 The Commonwealth of Australia Act 1900 (UK)
Clause 1
Commonwealth of Australia Constitution Act 7
An Act to constitute the Commonwealth of Australia
[9th July 1900]
35 WHEREAS the people of New South Wales, Victoria, South Australia,
Queensland, and Tasmania, humbly relying on the blessing of Almighty God,
have agreed to unite in one indissoluble Federal Commonwealth under the
Crown of the United Kingdom of Great Britain and Ireland, and under the
Constitution hereby established:
40 And whereas it is expedient to provide for the admission into the
Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the same, as follows:
45 1 Short title [see Note 1]
This Act may be cited as the Commonwealth of Australia
Constitution Act.
2 Act to extend to the Queen’s successors
The provisions of this Act referring to the Queen shall extend to
50 Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
The purported Australia Act 1986
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p140
The Constitution
As altered to 31 October 1986
(63 & 64 VICTORIA, CHAPTER 12)
An Act to constitute the Commonwealth of Australia.
5 [9th July 1900]
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland,
and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in
one indissoluble Federal Commonwealth under the Crown of the United Kingdom of
Great Britain and Ireland, and under the Constitution hereby established:
10 And whereas it is expedient to provide for the admission into the Commonwealth of
other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
15 1. This Act may be cited as the Commonwealth of Australia Constitution Act.1
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's
heirs and successors in the sovereignty of the United Kingdom.
.
The wording of the Constitution appears in itself not to have been altered, but instead it appears
20 that the application thereof was the real issue as to its intent to circumvent Section 128
Referendum. For example, Subsection 51(xix) which providing for naturalization is regarding the
naturalization of an “alien” to become a “British national”, with the purported Australia Act 1986
this purports a “British national” to be an “Australian national” and the High Court of Australia
decision in Sue v Hill may underline this hidden agenda as to rob by stealth the people of their
25 constitutional rights as that of being of British nationality.
.
The Statute of Westminster Adoption Act 1942 could have itself no impact upon the Constitution
and neither provide for the Commonwealth to somehow alter the meaning or the application of
“naturalization” from “British nationality” to “Australian nationality”.
30 .
An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to
obviate Delays occurring in its Passage, and to effect certain related purposes, by
adopting certain Sections of the Statute of Westminster, 1931, as from the
Commencement of the War between His Majesty the King and Germany.
35 [Assented to 9 October 1942]
Then;
STATUTE OF WESTMINSTER, 1931
[22 George V, Chapter 4]
An Act to give effect to certain resolutions passed by Imperial Conferences held in the
40 years 1926 and 1930
[11th December, 1931]
WHEREAS the delegates of His Majesty's Governments in the United Kingdom, the
Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand,
the Union of South Africa, the Irish Free State and Newfoundland, at Imperial
45 Conferences holden at Westminster in the years of our Lord nineteen hundred and
twenty-six and nineteen hundred and thirty did concur in making the declarations and
resolutions set forth in the Reports of the said Conference:
AND WHEREAS it is meet and proper to set out by way of preamble to this Act that,
inasmuch as the Crown is the symbol to the free association of the members of the
50 British Commonwealth of Nations, and as they are united by a common allegiance to
the Crown, it would be in accord with the established constitutional position of all the
members of the Commonwealth in relation to one another that any alteration in the law
touching the Succession to the Throne or the Royal Style and Titles shall hereafter
THE CONSTITUTION  
Statute of Westminster Adoption Act 1942 515
55 PARLIAMENTARY HANDBOOK OF THE COMMONWEALTH OF AUSTRALIA Twenty-Eighth Edition 1999
require the assent as well of the Parliaments of all the Dominions as of the Parliament
of the United Kingdom:
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AND WHEREAS it is in accord with the established constitutional position that no law
hereafter made by the Parliament of the United Kingdom shall extend to any of the said
Dominions as part of the law of that Dominion otherwise than at the request and with
the consent of that Dominion.
5 Again
AND WHEREAS it is meet and proper to set out by way of preamble to this Act that,
inasmuch as the Crown is the symbol to the free association of the members of the
British Commonwealth of Nations, and as they are united by a common allegiance to
the Crown, it would be in accord with the established constitutional position of all the
10 members of the Commonwealth in relation to one another that any alteration in the law
touching the Succession to the Throne or the Royal Style and Titles shall hereafter
require the assent as well of the Parliaments of all the Dominions as of the Parliament
of the United Kingdom:
And
15 AND WHEREAS it is in accord with the established constitutional position that no law
hereafter made by the Parliament of the United Kingdom shall extend to any of the said
Dominions as part of the law of that Dominion otherwise than at the request and with
the consent of that Dominion.
.
20 Because the line of succession is part of the Constitution it was beyond legislative powers of the
United Kingdom and/or the Commonwealth of Australia to alter this, hence the 1931 [22 George
V, Chapter 4] was in fact useless in that regard.
.
Likewise, British law was EMBEDDED in the Constitution to be applicable to the
25 Commonwealth of Australia and therefore, as such, it does not offend constitutional provisions,
which provisions remain applicable.
It is then not possible at law, for the United Kingdom’s Parliament to come to some agreement
with the Commonwealth of Australia that certain British law, which having at initiation been
accepted into the Constitution now no longer apply, as this then robs Australians of the benefits
30 of British law, as then by this they are robbed of the EMBEDDED rights in the Constitution. If
therefore British law as to “nationality” were no longer deemed to have been applicable since
1931 then this would have directly affected all Australians born or naturalized and so also
anyone else who since was born and or naturalized. It in fact is tantamount to an amendment of
the Constitution! Hence, it is and remains to be ULTRA VIRES.
35 The purpose of the purported Australia Act 1986 was to in affect amend the Constitution, if not
by words then in its application as seen in, Sue v Hill as there is a clear example of this.
.
If Australians desire independence from the British Crown then the procedure necessary to be
followed would have been to pursue a Section 128 Referendum, however, to purport the
40 Australian Act 1986 to be deemed valid, as to retrospectively give the Commonwealth of
Australia powers to establish itself is sheer and utter nonsense. To allow this would mean that the
Australia Act 1986 gives the Commonwealth of Australia effectively, legislative powers to
amend the Australia Act 1986 whenever and however it likes, being an Act of the
Commonwealth of Australia, regardless of the Section 128 Referendum provision in it which in
45 the Australian Act 1986, in itself being created, Section 128 Referendum was ignored which at
law was a requirement for such Act to be constitutionally acceptable.
It simply could now repeal the entire Act (Australia Act 1986) and replace it with some other
purported constitution or possible amendment.
In simple terms, there was no constitutional powers to enact the Australian Act 1986 and for all
50 purposes and intent the Commonwealth of Australia Act 1900 (UK) remains applicable. After
all, if the Westminster Act was to be deemed applicable, then by 1931 there would then no
longer be any Constitution existing! It means that anarchy existed since 1931! However, because
the Commonwealth of Australia Constitution Act 1900 (UK) was and remains a Constitution
p 141 9-3-2009
p142
Act and that by its inclusion of Section 128 Referendum, then such provisions as to replace or
even effect an Act, remained beyond legislative powers of the British Parliament for to amended,
then for all intent and purposes the Westminster Acts 1931 and 1942 has no effect to the
Constitution and neither can somehow in any way purportedly validate the Commonwealth of
5 Australia to create its own constitution where no such constitutional powers were ever provided
for to the British Parliament in the Commonwealth of Australia Act 1900 (UK).
None of the subsections of Section 51 of the Constitution could possibly be related to the
creation of some Constitution beyond the powers of any of the States and/or the
Commonwealth. The purported Australia Act 1986, was intended to create legislative powers for
10 the Commonwealth where none existed, as after all, why provide an identical Act and for what
purpose? Even if the Act were for some perceived convenience, its implications are vast. Again,
the Sue v Hill case it may be seen that some ulterior motive underlines the Acts change and that
this was intended to alter the constitutional position of Australians (naturalised or otherwise)
such as the EMBEDDED right of being a British born national born in the United Kingdom, and
15 as such, to so automatically obtain State and so Australian citizenship (meaning political rights)
and to be a member of federal parliament, if the person so was to be elected! Sue v Hill clearly
underlined the hidden agenda to rob British nationals born outside the Commonwealth of
Australia but residing in the Commonwealth of Australia of their constitutional rights. Therefore
it underlines that the hidden agenda was to rob people of their constitutional rights, that of being
20 a British National, by some back door manner. And at the same time all Commonwealth citizens
were robbed of being British Subjects as was made so clear by Mr. Barton as being undeniable in
the Constitution Convention Debates. As now being considered Australian, a Commonwealth
citizen is now not a British subject and who by some twist still swears alliance to the Queen, a
now purported Australian Queen.
25 Only the people of Australia themselves can vote for some form of independence, and in the last
Referendum the option of a republic was soundly defeated. Hence, any attempt to by some back
door manner achieve the same must be rejected as a constitutional absurdity. The moment it is
accepted that it was within the powers of the State and the Commonwealth of Australia to
provide for the Australia Act 1986 and to then accept as if this is the new constitution, then by
30 this one accepts that they can replace this purported Australia Act 1986 with any other purported
Constitution of whatever terms they desire and also then again repeal the now purported
Australia Act 1986. The High Court of Australia is already on record that the Commonwealth of
Australia can make unconstitutional demands upon the States, where the Commonwealth if
provided funding within Section 96 of the Constitution, a matter that is ridiculous as the Framers
35 of the Constitution made clear this is not possible, then what would stop then the
Commonwealth of Australia to use financial blackmail to force the State to agree to whatever
alternative version of Constitution it demands? This kind of dictatorship should never be
allowed and by some back door way created! The power and should always be granted to the
Commonwealth from the States not enforced the other way around.
40 Anyone who had studied the Constitution Convention Debates (Official Record of the
Debates of the National Australasian Convention) would be well aware that Section 51, and
so its subsections, never intended and neither contemplated to allow some creation of an
alternative Constitution, regardless if identical in wording, but to alter the application of the
Constitution. Indeed, where the Constitution itself provides for “Until the Parliament
45 otherwise provides” and this being only in limited area’s, then it must be clear that without a
Referendum the Commonwealth of Australia, regardless if the States agree with it, cannot
replace it and/or alter its application without Section 128 Referendum. As Barton made clear
that regardless if the States and the Commonwealth agreed it still would require to be approved
by a Referendum! Therefore, the purported Australia Act 1986 remains ULTRA VIRES as it
50 was never approved by way of Section 128 Referendum! Neither is it within the powers of the
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High Court of Australia to declare this legislation INTRA VIRES, as the High Court of Australia
was created to interpret the intentions of the Framers of the Constitution and not to somehow
implement their own contemporary views as an alternative!
5 Mr G. H. Schorel-Hlavka, in his appeal in M114 of 2001 regarding a Section 75(v) application

for mandamus/prohibition held by the Federal Court of Australia to be outside its jurisdiction
then encountered that the High Court of Australia effectively did the same by dismissing the
appeal without any hearing of the appeal itself by granting a Notice of Motion in which the
Commonwealth of Australia as well as the Governor-General were parties in the proceedings,
10 which had never been formally served upon Mr G. H. Schorel-Hlavka, as Court records shows.
And further, as Mr G. H. Schorel-Hlavka had pointed out to the High Court of Australia that he
deemed it highly inappropriate that all judges of the High Court of Australia had a “visit” with
the Governor-General, who at the time was a party to the appeal as a Defendant, without the
knowledge of Mr G. H. Schorel-Hlavka at the time of such “visit” ever occurring.
15 At the time, Mr G. H. Schorel-Hlavka had placed before the Court that the Framers of the
Constitution had enshrined in the Constitution the right of Appeal on refusal of orders to be
made upon a Section 75(v) application. This is shown by the Official Record of the Debates of
the National Australasian Convention.
We now have that the High Court of Australia somehow retrospectively robbed Heather Hill of
20 her constitutional rights to be a Member of the Federal Parliament, by some unconstitutional kind
of arguments.
The Statue of Westminster Act 1942 may have been intended to avoid delays in time of war, but
reality is that war or not the Governor-General is, so to say, a hand throw from the Federal
Parliament and as such the Statute of Westminster Act 1942 could not somehow alter the
25 distance to travel considerably, I n fact not at all, from Parliament House to the Governor-
General to obtain Royal Assent. Further, the British Parliament had no constitutional position to
in any way interfere with constitutional processes of the Commonwealth.
Further more, war or not, constitutional processes cannot be altered or deemed to be declared
non-active because some government of the Day may desire to do so. The current ridiculous
30 undeclared “WAR ON TERROR” is a clear example as to how a Government of the Day seeks
to suspend civil rights on the purported basis of there being a war when constitutionally no such
war was ever declared by the Governor-General and neither could be.
Once one allows this kind of nonsense to be accepted then dictatorship and tyranny is to follow.
As the Framers of the Constitution made clear the Commonwealth of Australia had no
35 constitutional powers as to civil liberties, as that was left to the States, yet we find that the High
Court of Australia purports that it is within the Defence provisions to suspend “civil liberties”,
constitutional and other legal rights. This kind of argument could soon or later facilitate some
ideological person to grab powers and turn the Commonwealth of Australia into the worst kind
of religious creation and so suspending all kinds of civil rights, using past High Court of
40 Australia decision to justify themselves as it being constitutionally permissible. To allow such is
to allow vandalism of the Commonwealth of Australia Constitution Act 1900 (UK) and
vandalism to our civil and other legal rights.
.
45 “The act should be construed according to its intention of the legislature.
.
Mr Francis James Colosimo therefore submits that the Framers of the Constitution never
intended to facilitate any constitutional powers for the States and/or the Commonwealth of
Australia to replace the Commonwealth of Australia Act 1900 (UK) with their own version of
50 the constitution, regardless if it was identically worded, as they made clear that any amendment
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would have to be approved by way of Referendum. To replace the Commonwealth of Australia

Constitution Act 1900 (UK) with the purported Australia Act 1986 is a amendment of the
Constitution itself by effectively abolishing this Commonwealth of Australia Act 1900 (UK) or
simply make is irrelevant and as Sue v Hill proves, to rob a person of existing constitutional
5 rights such as true State and Australia citizenship (Commonwealth citizenship)!
As explained in this document also the State of Victoria has purportedly done the same with its
1855 Victorian Constitution which also is a worthless document as it had never any such
constitutional powers to scrap its entire Constitution and then replace it with another.
.
10 Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)
what was the nature of the remedy provided.”
15 If the state of the purported replacement of the Constitution was to somehow give the
Commonwealth of Australia and/or the states legislative powers where it had none previously,
such as to define/declare “Australian nationality” or otherwise then clearly the purported
Australia Act 1986 was not one within purported constitutional powers. This, as neither the
States and/or the Commonwealth of Australia had any constitutional powers to define/declare the
20 nationality of a child born within the realm of the King/Queen. With the British settlement in the
Continent Australia it was a common law that any child, regardless of the status of its parents –
other then children born to consular protected people – have the nationality of its Monarch,
which is in the Commonwealth of Australia the “British nationality”. It is preposterous to argue
that somehow the Queen as a British monarch can be an Australian national and so Australians
25 can obtain Australian nationality! It is as such then seeking to achieve a republic by back door
manner, that is without Section 128 Referendum and which republic question was soundly
responded to in the negative, when put to the people at Referendum.
The Commonwealth of Australia Constitution Act 1900 (UK) is a “constitutional statue” which
unlike ordinary British statues cannot merely willy nilly be amended by implied repeal or
30 otherwise. In this case the Act can only be amended by Section 128 of this Constitution. Neither
the 1931 or the 1942 Westminster Act can affect this constitutional provision!
“Australian citizenship” within its constitutional meaning can only be derived by a person
obtaining “State citizenship” and has got nothing to do with nationality. All attempts to somehow
seek to amend the meaning of the words by the purported Australian Act 1986 to imply some
35 change in status can only be described as sheer and utter nonsense and must be rejected by any
fair dinkum Australia who values constitutional rights as precious.
After all, if the Commonwealth of Australia and/or the States could be deemed to have the power
to circumvent the provisions of Section 128 Referendum to create their own brand of Australian
Act 1986 as a Constitution then what would stop them to replace the purported Australian Act
40 1986 with some other hideous act that would all together wipe out every constitutional right for
Australians?
Mr Francis James Colosimo therefore submits that the Australian Act 1986 was
unconstitutional and beyond constitutional powers and for this is and remains ULTRA VIRES.
Further, that the High Court of Australia has no constitutional powers to amend the Constitution
45 as to purportedly declare the Australian Act 1986 as some replacement for the Constitution, this
it appears to have done if not expressively then by implication!
The purpose of having the Constitution is to guarantee that there are RULES, iron clad, in place
in regard of which all STAKE HOLDERS (so to say) are confined to their respective rights and
obligations and none can go beyond this and all can rely on to be as stated. The only way to
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amend the Constitution is by way of a Section 128 Referendum that approves an amendment
proposed by the Parliament.
The Monarch is a STAKE HOLDER in that the Monarch is bound to obey the provisions of the
Constitution and her Representative, the Governor-General appointed to represent her by
5 recommendation of the Home Office at 10 Downing Street, and not otherwise, acts within
confinements of the Constitution and any valid law enacted within that. The Ministers of the
Crown, who are commissioned by the Governor-General, the ADMINISTRATOR (ceo) to assist
the Governor-General to conduct daily affairs of the various Departments, as
STAKEHOLDERS, likewise must act within the constitutional framework and any laws validly
10 enacted by the Federal Parliament. The Members of Parliament as STAKEHOLDERS are bound
to represent the People and in the process are bound to act within the confinement of the
Constitution and any valid legislation enacted within those provisions. The People, as
STAKEHOLDERS, have the right to be unlimited in their political, civil and other liberties
unless so specifically limited by the Constitution. The States also are STAKEHOLDERS as their
15 original legislative powers, for so far as they then existed, and were transferred to the “political
UNION” called the Commonwealth of Australia, no longer are available to them but they have
the remainder of their original legislative powers. It is for this also that the states no longer could
reinvent their State constitutions as at will, as no longer did they have sole legislative powers
over State citizens, in view that part of their original legislatives powers were transferred to the
20 Commonwealth of Australia upon federation. They too are bound to observe the limitations of
the Constitution and cannot act beyond any limits. Each and every STAKEHOLDER acting on
his own and/or in combination with any other STAKEHOLDER but beyond constitutional
powers in effect can be perceived to commit an act of treason against the Constitution, the “new
Magna Charta” for the people by the people, which ultimately gives each STAKEHOLDER
25 certain powers, rights and obligations.
The High Court of Australia, as the Framers of the Constitution made clear would be “the
guardian of the Constitution” could only adjudicate within the framework of the Constitution
and so interpret the intentions as were recorded in the Official Record of the Debates of the
National Australasian Convention.
30 As the Framers of the Constitution made clear, the High Court of Australia could not enlarge or
amend the Constitution but only declare an act to be within the legislative powers of the
Constitution if it all along was to have been within this legislative powers. Hence, the very
argument by any High Court of Australia judge that one has to consider contemporary issues
clearly fails, as if it wasn’t in the first place within constitutional legislative powers then some
35 purported contemporary view is irrelevant. The organic nature of the Constitution comes from
the people not the Parliament or its judges and such was intended by the Framers of the
Constitution.
40 National Australasian Convention.) (Folder 33)
Mr. CLARK:
I now come to the question as to whether the decision of that court of appeal ought to be
final or not. I unhesitatingly say that, so far as the cases which come before that court are
purely Australian, the judgment ought to be final; but if a case comes before it affecting
45 imperial interests, or depending upon the interpretation of an imperial statute in force
throughout the whole empire, it would be absurd to talk about taking away the right of
appeal to the Privy Council. If the British [start page 254] legislature does what it has the
power to do, and what it has done-that is, if it passes a law for the whole empire, such as
the British Merchant Shipping Act or the Plimsoll Act-it would never listen to a proposal to
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take away from its own court the right of interpreting its own acts. That, I think, is
perfectly clear. This reminds me that when hon. members talk of breaking our connection
with the mother country, or of cutting the first strand of the painter in a proposal to erect a
federal Judiciary, they have, it seems to me, a very hazy and imperfect notion as to what
5 our relations to the mother country really are. Our real relation to her as dependencies does
not depend upon our recognition of the Crown, or upon our appealing to the Privy Council.
The great and mighty fact with regard to our position in relation to the mother country is
that our legislative bodies are subordinate to the British Parliament, with their laws liable to
be overruled by that Parliament. That is the position in which we shall remain while we are
10 only a subordinate legislature-almost as subordinate to the British Government as
municipalities are subordinate to the legislature which creates them. It is that which makes
us practically a dependency, whether or not there is an appeal to the Privy Council, and
whether or not the name of the Queen is used in our acts of Parliament. That is really the
essence of the position which we hold as part of the British empire. It has been said that in
15 addition to the cases which involve imperial interests, and the interpretation of imperial
statutes, it may be desirable to have cases sent to the British Privy Council which embody
fundamental principles of the common law. When I heard that statement I was reminded of
an article in the December number of the Contemporary Review, by one of the most
learned and scientific lawyers and legal writers of the present day-Sir Frederick Pollock.
20 He is so dissatisfied with the system of teaching law in England, that he says if it is not
very soon altered, the centre of the legal system of the Anglo-Saxon race will drift from the
eastern to the western shore of the Atlantic, and that the colonies will look to the decisions
of the Supreme Court of the United States for decisions on fundamental principles of the
common law. The American courts administer the same principles of common law that
25 the English courts do, and so far from its being a disadvantage to have two independent
centres of interpreters, it has been a benefit, and the common law of England has thus been
enriched. The Privy Council and House of Lords have frequently quoted with respect, and
have acknowledged the benefit of, the decisions of the august tribunal on the other side of
the Atlantic. There is no reason why our supreme court of appeal may not produce the
30 same beneficent results, and enrich the stock of common law of the empire by being an
independent centre of interpretation. The hon. member, Mr. Wrixon, seemed to think there
might be an objection to making it a final court of appeal, because, he said, in Victoria they
have six judges who are amongst the ablest lawyers at the bar, and that it might be difficult
to get a tribunal which would command more respect for its judgments than was felt for the
35 decisions of the Supreme Court in that colony. I do not pretend to speak for the colony of
Victoria, or any other colony, particularly; I speak generally; but I think the hon. member,
Mr. Wrixon, will admit that we do not always get the six, or even the three, ablest lawyers
in the community upon the bench of a colony. You get poor judges, just as you get poor
politicians.
40 Colonel SMITH: That is not the case now!

National Australasian Convention.) (Folder 33)
Mr. GLYNN (South Australia).-I should like to add to what has been said by some
honorable members in opposition to the insertion of these words, speaking from the point
45 of view of the possible efficacy of legislation upon this matter, that the question of the
adoption of compulsory arbitration and conciliation was very largely gone into by a Labour
Commission which sat in England some seven or eight years ago. That commission
examined close upon 500 witnesses, the greater number of whom were representatives of
labour, and their decision was, as expressed in an article by Mr. John Rae, in the
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Contemporary Review, that an Act of Parliament should not be passed to interfere with
what is being done by voluntary co-operation.
Mr. HIGGINS.-But there has been a forward movement since that time even in
England.
5 Mr. GLYNN.-I do not think the position of affairs there has altered very much during
the last six or seven years, or that the well-thought-out recommendation of representatives
of labour-recommendations based upon the evidence of members of the several labour
societies could have been upset within that time. Here we have from Mr. Rae, who as a
writer is one of the greatest upholders of labour, the statement that the witnesses who were
10 examined on behalf of labour organizations would have nothing to do with compulsory
state interference. Mr. Rae cites the evidence of several witnesses. In preface to an extract
from the evidence of one of them, he says-
One thing was clear-they would have nothing to do with State arbitration or a State-
appointed arbitrator. I say," said Mr. Trow, let Parliament mind its own business. We know
15 better what man to select for an arbitrator than Parliament does. We do not want them to
foist upon us an arbitrator."
Going further, we have the evidence of Mr. Knight, a representative of capital, who is
cited by Mr. Rae in justification of his conclusions:-
"I speak," he said, from long experience of the organization that I represent here to-day,
20 and I say that we can settle all our differences [start page 207] without any interference on
the part of Parliament or any one else."
Yet, we find that nevertheless, albeit unconstitutionally workers rights are eroded by the
Commonwealth of Australia and so it may be stated to be in breach of the Subsection 51(xxxv)
because of what appears to be ever power hungry politicians in the Commonwealth of Australia
25 seeking to device any tactic to broaden their powers base by all kinds of legal trickery and
tactics, regardless of constitutional limitations.
No judicial officer could in any shape or form approve this kind or tyranny against the people!
The Constitution is but the Commonwealth of Australia Constitution Act 1900 (UK) and if any
30 one holds views that because of a process of gradual development there is a contemporary
difference then to what the Framers of the Constitution intended, then let them pursue to have the
Constitution amended by approval by way of a Section 128 referendum but not otherwise!
In the mean time, without such referendum we simply all must operate within the provisions of
the Commonwealth of Australia Constitution Act 1900 (UK), regardless whatever our personal
35 views might be otherwise.
By a process of gradual development, the status of the Dominions had

changed; as a matter of constitutional practice they had come to be
regarded, not as colonies, but as sovereign communities."
To apply this to lawyers appearing before the Courts would that mean that a process of gradual
40 development lawyers become judicial officers and no longer require to be appointed?
Would this then also mean that no longer do I require to have a judicial determination as by a
process of gradual development I may obtain the right to make the judicial determination by
default? If that a process of gradual development was to override constitutional provisions then
why indeed have a Constitution at all? Why have elaborate legal provisions as to the transfer of
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properties , if it is possible by means of a process of gradual development I can claim by a

process of gradual development to be the owner of whatever property I desire in a State, in this
country, in the name of a political union called the Commonwealth of Australia?
If this then means that by a process of gradual development it may be taken that a Prime
5 Minister by such default becomes head of the Commonwealth, above the Constitution,
regardless that this is not constitutionally possible. but that by a process of gradual
development this is so obtained, the question then is, why have elections at all? As to the
Federal Government claiming the right of declaring Citizenship via the Citizenship Act of 1984,
then this is exactly what happened and without anyone even registering a vote via Section 128 of
10 the Constitution which would authorise, and by which means it is only possible to authorise such
power to be moved from the States to the Federal Government. No other provision was given by
the States, and neither could have, to the Commonwealth of Australia to make such alteration but
by Section 128, Referendum.
While the High Court of Australia might at times exercise such supposed independence, I for one
15 could not detect that it ever presented any of the issues raised by me in this ADDRESS TO THE
COURT as to ascertain what was “EMBEDDED” in the Constitution. It simply took a view, not
at all to what it was constitutionally required to do as to interpret the intentions of the Framers,
but substituted it with whatever may suit the Government of the Day.
I reject totally such “assumption” of independence from the people from whom such powers
20 come, via Section 128 Referendum.
For whatever reason, judges may not have had sufficient time and/or a desire to research
extensively the Hansard records which lays the foundation of the Constitution as set out by the
Framers of the Constitution. By this their views may have become clouded by initially, not being
informed of Constitutional law and then relying on laws and legislations passed into established
25 laws which then those accepted laws have taken no regard as to being valid re the Constitution
and so they may have been wrongly taught during their formative years during legal studies and
their limited research, if any, as to the intentions of the Framers of the Constitution. This then
cannot be an excuse to continue to allow any tampering with constitutional provisions and
limitations and must be addressed. This is the very research and work that Mr G. H. Schorel-
30 Hlavka has done and continues to do. Having informed Members of Parliament over the years
and by so doing, these Members of Parliament have reconsidered their actions as inappropriate,
one of many incidents being the intended sale of Point Nepean in Victoria by Prime Minister
John Howard, another the release of Pauline Hanson from false imprisonment to state just two.
Mr G. H. Schorel-Hlavka also attempted single handed to prevent the illegal war from being
35 perpetrated onto the people of Iraq but was thwarted and frustrated in his attempt to prevent this
from happening. He may well call himself a Grandmaster Constitutionalist and you may well
laugh, but it is a title well earned, his material being used by those elected to represent us, but
never given credit to as to the instigation of changes made after considering his constitutional
reasonings as provided by Mr G. H. Schorel-Hlavka. Their views are clouded by what they may
40 have been wrongly taught during their formative years of legal studies and their limited research
in the specialised area of constitutional law, if studied at all, as to the intentions of the Framers of
the Constitution. Still, it can be no excuse to allow tampering with constitutional provisions and
limitations.
45 Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

“That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21
CLR 357) was very briefly, and I regret to say, insufficiently argued and considered on the
last day of the Sydney sitting..... The arguments which now commend themselves to me as
conclusive did not find entrance to my mind. In my judgment that case was wrongly decided,
50 and should be overruled.”
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5 of all. If, then, we find the law to be plainly in conflict with what we or any of our
predecessors erroneously thought it to be, we have, as I conceive no right to choose
ultimately right..
consider the principles upon which a court should act in particular cases - so much at least
15
Clearly, the High Court of Australia has recognized that some legal argument presented
previously may have to be reargued where new material surfaces not previously considered.
One can check the various judgments handed down and none will even remotely refer to the legal
20 “disability” that applies whenever any person is subject to a special race legislation enacted
within Subsection 51(xxvi) of the Constitution!
As the Framers of the Constitution made clear that anyone subjected to such law enacted within
Subsection 51(xxvi) would cause a disability and (Hansard 3-3-1898 Constitution Convention
Debates)(Official Record of the Debates of the National Australasian Convention) “That
25 regulation, if it were of the mildest character, under this definition, would deprive him of
his rights.” and “Would not the difficulty be that if he were under any slight disability for
regulative purposes, all his rights of citizenship under the Commonwealth would be lost?”.
The (albeit unconstitutional) Racial Discrimination Act 1975 (See Folder 02 of the CD) enacted
within Subsection 51(xxvi) precisely robbed every person subject to this act of their citizenship!
30 As such, what is shown is that it doesn’t matter if a person is a lawyer or not, being an
unrepresented Defendant in a case or not, what is relevant is that whomever does pursue to argue
about constitutional powers and/or limitations does so as to what is constitutionally applicable. If
any Government was allowed upon its whims to make treaties as to circumvent constitutional
limitations then why have a constitution at all? Treaties and other arrangements can only be
35 made within existing powers and not beyond them. The Australian Act 1986 was clearly seeking
to circumvent the limitations of the Constitution and by so robbing the electors of their
constitutional rights such as to remain British nationals, and by so giving the Commonwealth of
Australia additional powers such as to define/declare citizenship to undermine if not totally
remove the rights of citizens, their State franchise, etc. There can be no “process of gradual
40 development” as the Constitution simply does not allow for this. Indeed, the Framers of the
Constitution made clear that the High Court of Australia was to determine matters as to what
was their intentions at the time of framing the Constitution as expressed during the Debates.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900 (UK)

45 66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the
Commonwealth, for the salaries of the Ministers of State, an annual sum which,
until the Parliament otherwise provides, shall not exceed twelve thousand pounds a
year.
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It is unlikely that presently any Federal Minister (of the Crown) receives his/her pay from the
British Crown. More likely the Remuneration Tribunal sets the Ministers salaries. This cosy deal
circumvents the Constitution and seems to be brought about by purporting that the
Commonwealth of Australia has become an independent country.
5 This is one of the numerous dangers that has come about when one allows abuse of constitutional
limitations. It is like having a bank clerk paying himself his own wages out of the till!
The very carefully crafted constitutional provisions and limitations as laid down but the Framers
of the Constitution, are not just being undermined but destroyed, allowing and furthering these
10 kind of aberrations to the Constitution itself.
No longer is the Constitution by the people for the people but has merely become some
instrument for politicians to manipulate as they desire. Whatever any constitutional provision
may mean simply becomes worthless as the politician can manipulate its meaning, if not
overnight then over time to somehow be deemed to have a meaning never intended, indeed
15 opposed to be meaning intended by the Framers of the Constitution. Again anarchy is what is
implemented by those in power entrusted to protect us and those wanting to protect the
Constitution strangely are then labelled as the anarchists.
There should be absolutely no doubt that Mr Francis James Colosimo has legal standing in this
case to present this case and to argue the legal issues, regardless that Mr Francis James
20 Colosimo is not a lawyer, and by this where Mr Francis James Colosimo has appointed Mr G.
H. Schorel-Hlavka as his Attorney/Consultant and expert witness then for all purposes that his
statements are those basically uttered by Mr G. H. Schorel-Hlavka and should likewise be
accepted as being those of Mr Francis James Colosimo.
It ought to be accepted beyond any doubt that having a lawyer to litigate in a case does not in any
25 way ensure that one will succeed in litigation.. After all, if there are 100 cases conducted before
the County Court of Victoria in which both parties are represented by lawyers, barristers, etc,
then in each case one party will loose the case and so their lawyers were wrong and the other half
will have the lawyers proven to be right. As such 50% of lawyer will have been proven to be
wrong, despite the lawyers involved and then loosing cases may have been Queens Counsel
30 (Senior council) etc.! A rate of 50% hardly speaks for a success rate to compliment lawyers on.
After all, in any game where two opposite teams are competing a 50% rate (apart of a stalemate)
is applicable. Meaning 50% loose and 50% win the game. For lawyers it is even worse as they
even loose cases where the opposing party is not legally represented, such as in the case with Mr
G. H. Schorel-Hlavka, and by this the loosing rate exceeds the success rate.
35 As Mr G. H. Schorel-Hlavka understands it, the Commonwealth of Australia Constitution Act
1900 (UK) was created not just by lawyers but involving many a so called “lay-person”. Many
contributing considerably to the creation of the Constitution. Generally more “lay-men” are in
Parliament then lawyers, and yet they are involved in the decision making of such new laws
which are created and a lawyer, like a judicial officer, is bound to take as it is.
40 As presently stands “juries” consist of non-lawyers, and they are to decide the GUILT or
INNOCENCE of those charged with very serious crimes, lawyers being barred from jury service.
It seems acceptable that lawyers cannot be relied upon to perform such a very responsible task.
.
Marlow and Kelly v R [2001] TASSC 146 (19 December 2001)

45 159 The role of a jury remains central to the criminal justice system and respect must be
given to the conscientiousness and integrity of ordinary citizens chosen at random in
fulfilling a public duty. Less disquiet is expressed about, and I suspect greater confidence is
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held, by the community in decisions made by their representatives than those made by
individual professionals.
160 That respect and trust is recognised in the prohibition against enquiry into the nature of
the deliberation of a jury (Bedelph v R A67/1979).
5 161 As Brennan J said in R v Glennon (1992) 173 CLR 592 at 614:
"Of necessity, the law must place much reliance on the integrity and sense of duty of the
jurors. The experience of the courts is that the reliance is not misplaced."
(See also Leaman v R A9/1987, Neasey J at 7.)
162 The capacity of ordinary citizens selected from all walks of life to make judgments
10 fairly was recognised by Street CJ in an unreported judgment and repeated by him in
Munday v R (1984) 14 A Crim R 456 when he said at 457:
"... it is relevant to note that the system of jury trial is geared to enable juries to be assisted
in every possible way to put out of mind statements made outside the court, whether in the
media or elsewhere. There is every reason to have confidence in the capacity of juries to do
15 this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially.
Every Australian worthy of citizenship can be relied upon to discharge properly and
responsibly his [or her] duty as a juror. Particularly is this so in the context of being one of
a number or group of others all similarly charged with this responsible duty. I have great
faith in the multiple wisdom and balance reflected in the verdict of a jury." (folder )
20
Over the centuries, many a lawyer has been convicted of crimes, this also is hardly a
recommendation. Indeed, in the US for many years it was outlawed to be a Member of the Bar,
as has been extensively already set out in the S78B NOTICE OF CONSTITUTIONAL
MATTERS.
25
What the Framers of the Constitution did make clear, and as Mr G. H. Schorel-Hlavka points
out in his various books, that lawyers indeed have a field day, as they twist the true meaning of
words in the Constitution to something never intended.
30 Lawyers are trained in thinking in a certain manner during their legal studies and no wonder then
that lawyers may dislike a so called “bush lawyer” from exposing LEGAL FACTS where all
they may rely upon is LEGAL FICTION.
CHU KHENG LIM AND OTHERS v. THE MINISTER FOR IMMIGRATION, LOCAL
35 GOVERNMENT AND ETHNIC AFFAIRS AND ANOTHER (1992) 176 CLR 1 F.C. 92/051
(See Folder 01 of the CD)
18. In Nolan v. Minister for Immigration and Ethnic Affairs ((34) (1988) 165 CLR 178, esp at
pp 183-184), it was recognized that the effect of Australia's emergence as a fully independent
sovereign nation with its own distinct citizenship was that the word "alien" in s.51 (xix) of the
40 Constitution had become synonymous with "non-citizen". In the joint judgment of the majority
((35) Mason C.J., Wilson, Brennan, Deane, Dawson and Toohey JJ.), it was said ((36) ibid., at
p 183):
"As a matter of etymology, 'alien', from the Latin alienus through old French, means
belonging to another person or place. Used as a descriptive word to describe a person's
45 lack of relationship with a country, the word means, as a matter of ordinary language,
'nothing more than a citizen or subject of a foreign state': Milne v. Huber ((37) (1843) 17
Fed Cas 403, at p 406 (US)). Thus, an 'alien' has been said to be, for the purposes of
United States law, 'one born out of the United States, who has not since been naturalized
under the constitution and laws' ((38) ibid). That definition should be expanded to include
50 a person who has ceased to be a citizen by an act or process of denaturalization and
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restricted to exclude a person who, while born abroad, is a citizen by reason of parentage.
Otherwise, it constitutes an acceptable general definition of the word 'alien' when that word
is used with respect to an independent country with its own distinct citizenship."
5 The truth is that the wording “non-citizen” or “non citizen” (the latter without hyphen) was
never used by the Framers of the Constitution. As such, lawyers are explaining a constitutional
meaning of “alien” using self introduced wording not at all having any constitutional meaning.
It is therefore a very dangerous act to allow lawyers to manipulate the true meaning of the
Constitution by manipulating words in to some meaning that was never originally intended by
10 the Framers of the Constitution.
In constitutional terms, any person, regardless of not being an “alien” who was subject to a legal
disability, due to a legislation in regard of a special race within Section 51(xxvi) of the
Constitution then this person lost citizenship and as such was in effect to use the term a “non
citizen” regardless that the person was not and never had been an alien!
15
Sir SAMUEL GRIFFITH: So it will be with every other power which the
commonwealth takes into its hands. The intention of the clause is that if any state by
20 any means gets a number of an alien race into its population, the matter shall not be
dealt with by the state, but the commonwealth will take the matter into its own
hands. (Folder 33)
The Framers of the Constitution did debate that even those of a coloured inferior race born
25 within the Commonwealth of Australia being a member of a race against which special
legislation was enacted also would by this legal disability loose their citizenship! As such,
constitutionally “Aboriginals”, now subject to special race laws, enacted within Subsection
51(xxvi) of the Constitution all are subject to a legal disability and by this lost their citizenship,
not their nationality!
30
Because lawyers now sitting at the bench of courts and having done their legal studies when
“CITIZENSHIP” was purported to be a nationality, then they will now obviously hand down
judgments that will include the revised, although ULTRA-VIRES interpretation, and so
regardless of how incorrectly this is interpreted, let alone the inability to alter such interpretations
35 at the onset, outside of Section 128, Referendum.
Consider Version No. 051 Business Franchise (Tobacco) Act 1974 Act No. 8597/1974, …
incorporating amendments as at 1 July 1998. (See Folder 02 & 06 of the CD)
.
40 “2. Definitions and references
“Australian citizen” has the same meaning as in the Australian Citizenship Act 1948 of the
Commonwealth; [S. 2(1) def. of “Australian citizen” inserted by No. 55/1995 s.
4(1).] “Australian resident” means an Australian citizen or a person who is ordinarily
resident in Australia; [S. 2(1) def. of “Australian resident” inserted by No. 55/1995 s.
45 4(1).]
ALSO, in relation to the Victoria Police …

Be prepared before you apply to be able to be a police officer;
p 152 9-3-2009
p153
.
http://www.police.vic.gov.au/content.asp?Document_ID=108
Mon 21 August 2006.
And, … Nationality: You must be an Australian citizen or permanent resident to be eligible
5 to submit an application.
AND, …
Version No. 010, Legal Profession Act 2004, Act No. 99/2004 (See Folder 02 of the CD)
PART 1.2—INTERPRETATION
10 1.2.1 Definitions
“admission to the legal profession” means—
(a) admission by the Supreme Court under this Act as a lawyer; or
(b) admission by a Supreme Court under a corresponding law as—
(i) a lawyer; or
15 (ii) a legal practitioner; or
(iii) a barrister; or
(iv) a solicitor; or
(v) a barrister and solicitor; or
(vi) a solicitor and barrister—
20 but does not include the grant of a practising certificate under this Act or a corresponding
law;
See for this also Moller v The Board of Examiners [1999] VSC 55 (1999); (See Folder
01 & 06 of the CD)
25 “When Parliament amended s.5(2) of the Legal Profession Practice Act 1958, it chose to
retain the obligation to take an oath of allegiance for those who wished to become admitted
to practise, but also gave a right to those applicants to seek exemption from that obligation.
Consequently, there would appear to be significant differences between the local duty of
allegiance owed by aliens or non-citizens, and that owed by citizens or those who
30 otherwise owe a general duty of allegiance.
As was pointed out by the Chief Justice in R V Miller [1979] V.R. 381, at p.383, this
appears to be a recognition by Parliament of the importance attaching to that obligation. It
is therefore neither necessary nor desirable that any opinion should be expressed as to the
right of persons other than aliens or non-citizens to seek exemption under the amended
35 sub-section.
The present applicant is a citizen of a foreign country and the considerations applicable to
him are not necessarily considerations applicable to citizens of this country, nor to persons
who may hold dual citizenship.”
40 The judges clearly used “citizenship” as if it is a “nationality” rather then involving a political
right, such as franchise, which has nothing to do with nationality. In any event, where lawyers
(including judges), politicians, police and others are required to have “Australian citizenship”,
(and Mr Francis James Colosimo has submitted that this is not available to anyone), then
considering the current state of affairs of legislation, Mr Francis James Colosimo rejects any
45 validity in appointment of members of the police force as their appointments are occurring upon
the false premises that they have Australian citizenship, which they have not.
p 153 9-3-2009
p154
Lawyers, including those acting for the Director of Public Prosecutions, judges and other judicial
officers neither are lawfully appointed where they lack lawful “Australian citizenship”.
Likewise, Members of Parliament are not duly appointed where they lack “Australian
citizenship”. Therefore, there can be no lawful enactments under the hand of those so elected.
5 Mr Francis James Colosimo is pursuing a legal reality within the framework of constitutional
powers and of limitations … but is faced by a horrendous opposition from those who desire (or
claim to have) some FICTITIOUS “Australian citizenship” as a nationality.
Mr. SYMON.-
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in
each person. There may be two men-Jones and Smith-in one state, both of whom are
citizens of the state, but one only is a citizen of the Commonwealth. That would not be
15 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.
.
Melbourne University Law Review
20 CITIZENSHIP AND THE CENTENARY — INCLUSION AND EXCLUSION IN 20th
CENTURY AUSTRALIA
KIM RUBENSTEIN
We must recognise the difference between citizenship in the legal sense and citizenship in
25 the broader sense. That is why throughout this report, when the terms ‘citizen’ and
‘citizenship’ are used with a small ‘c’ they describe citizenship in the broader sense of civic
value of our society, relevant to all the people who live here, not simply those who, under
the Australian Citizenship Act 1948 (Cth), have the legal status of Citizens.[10]
.
30 What we have here is even some explanation as to “citizenship” or “Citizenship” as if this may
somehow explains away what is totally wrong!
.
If the Constitution was to be explained pending how some writer may understand it then why
have a Constitution at all?
35 .
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
40 question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
45 provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies
may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal
p 154 9-3-2009
p155
has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
The numerous authorities (other then the Hansard records of the Constitution Convention
5 Debates) (Official Record of the Debates of the National Australasian Convention) provided
by Mr G. H. Schorel-Hlavka (included in the CD, Folder 33) have one thing in common, they
are all based upon some assumption of “citizenship” being “nationality”! That is the problem,
when some LEGAL FICTION creeps up and students in LEGAL STUDIES then accept this as
constitutionally acceptable without question then this acceptance becomes incorrect at law and of
10 a disservice in law.
Quick & Garran, a reference so much used by the High Court of Australia and others itself does
acknowledge that the Framers (Delegates) on 2-3-1898 defeated the proposal by Dr Quick to
give the Commonwealth of Australia legislative powers as to “citizenship”!
15 Then how on earth could the Commonwealth of Australia possibly have attained the
constitutional powers to define/declare “citizenship” that it never was granted in the first instance
and has since never been constitutionally granted it?
The Westminster Act specifically stated;

20 The Statute of Westminster, 1931
22 George V, c. 4 (U.K.)
3. It is hereby declared and enacted that the Parliament of a Dominion has full power to
make laws having extra-territorial operation.
4. No Act of Parliament of the United Kingdom passed after the commencement of
25 this Act shall extend or be deemed to extend, to a Dominion as part of the law of
that Dominion, unless it is expressly declared in that Act that that Dominion has
requested, and consented to, the enactment thereof.
But as the Framers of the Constitution had stated;

30 Hansard 2-3-1898 Constitutional Convention Debates (Official Record of the Debates of
the National Australasian Convention) (Folder 33)
Mr. SYMON (South Australia).-
That is, for admission into this political Union, which is not a republic, which is not to
be called a dominion, kingdom, or empire, but is to be a Union by the name of
The “Dominions” therefore can only be referred to being the States (formally referred to as
Colonies) and not at all referring to the Commonwealth of Australia.
Mr. BARTON.-Yes; and here we have a totally different position, because the actual
right which a person has as a British subject-the right of personal liberty and
45 protection under the laws-is secured by being a citizen of the states. It must be
p 155 9-3-2009
p156
among the subjects confided to the Commonwealth. The administration of [start page
1766] the laws regarding property and personal liberty is still left with the states.
If therefore it was to be accepted that the Commonwealth of Australia were to have somehow
5 legislative powers to declare/define “citizenship” then as Barton made clear it would undermine
the very provisions so thoroughly, laboriously debated and considered by the Framers of the
Constitution and inserted in the Constitution.
We should never leave it up to judges to manipulate the provisions of the constitution as they
deem fit! Only the people can and should be empowered to decide if within the provisions of
10 Section 128 of the Constitution an amendment is to be made.
Mr. BARTON.-One improvement we want in this Constitution is the establishment
15 of a Commonwealth kindergarten.
Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot

of lawyers.
20 Mr. BARTON (New South Wales).-The honorable member means that if Parliament
goes on limiting such matters until the end, and there is only one left, it might leave out
that one.
Mr. SYMON.-I do not say that a lawyer would say that.
Mr. BARTON.-I think that would only occur to a lawyer. I think that there is a
25 reasonable construction which a court will have to put upon these words, and that there will
be no difficulty.
Mr. KINGSTON.-This will have to be considered by lawyers.

Mr. BARTON.-Of course. I think we had better leave it as it is. I have no doubt as to the
construction.
Mr. OCONNOR.-What is the use of leaving the matter to some learned arguments
between lawyers as to whether an injunction will or will not apply, when you can simply
35 provide for the whole thing by enacting in the Constitution that from its decisions, where
the decisions go beyond its powers or it decides something which [start page 2279] it has
no right to decide, there should be an appeal?
Mr. ISAACS.-It seems that the Constitution is, made for the Senate, and not for the
people.
Mr. DEAKIN.-Not even for the Senate.
p 156 9-3-2009
p157
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
5 Constitution is required at all; it can simply be provided that a certain number of gentlemen
shall be elected, and meet together, and, without limitation, do what they like. Victoria
would not agree to that. But there is a desire to draw the very life-blood of the Constitution,
so far as the states are concerned, by this insidious amendment, which would give the
Houses authority from time to time to put different constructions on this most important
10 part of the Constitution. I hope we will do as we have done in many instances before, in
matters that have been much debated-adhere to the decision we have already arrived at.
And
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the
objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point
15 from which Mr. Isaacs and others have addressed themselves to the question. But it seems
to me that the argument which has been raised by Mr. Isaacs as to this last sub-section of
clause 55, is really an argument for greater clearness in the Constitution; because it seems
to be admitted that if the words of the Constitution are placed beyond dispute, then the
confusion to which my honorable and learned friend alludes cannot arise. Consequently,
20 the real meaning of the argument is this-"I could not say what I have said if your
Constitution were absolutely clear." This is an objection to the form in which the provision
stands, and an objection to form only, and not to substance, because it is admitted that
these matters can only arise by way of confusion, and consequently it must be admitted that
they can only arise where there is room for confusion in the Constitution.
25
The Framers of the Constitution from time to time did very much attack the credibility of
lawyers in various ways and sought to avoid leaving doubt as to the meaning of the Constitution.

Mr. FRASER.-With regard to the Judges, surely we need not run to the United States,
and Canada, and other countries to find out how many Judges are required. We have our
wits about us. We know that the Judges are not overworked now, and that they are not
likely to be. Persons are frightened to go to law now. The reason why there are no
35 lawsuits is that people are afraid to go to law-they know that if you win you lose, and
if you lose you are done for.
Mr. REID.-The honorable member is evidently a layman.

[start page 306]
Mr. FRASER.-I know the feeling of the lay public, and I know they will rather
40 submit to an injustice, or arrive at some settlement, than submit to the law, which is
so costly and uncertain.
THE COMMONWEALTH OF AUSTRALIA v. TASMANIA. THE TASMANIAN DAM CASE

(1983) 158 CLR 1 High Court of Australia
45 13. In the argument which is presented in this case the expression "the
p 157 9-3-2009
p158
federal balance" seems to mean, not so much the distribution of legislative

powers effected by the Constitution, as the content, as it was understood in
1900, of the legislative powers thus distributed. The argument has a special
relevance to s. 51(xxix). Koowarta makes the point that the content of the
5 external affairs power has expanded greatly in recent times along with the
increase in the number of international conventions and the extended range of
matters with which they deal; see pp.645-646, 650. The same point had been
made earlier by Latham C.J. in Burgess, at pp. 640-641. It is this development
"that promises to give the Commonwealth an entree into new legislative
10 fields"; see Koowarta, at p. 650. It is, of course, possible that the framers of the Constitution
thought or assumed that the external affairs power would
have a less extensive operation than this development has brought about and
that Commonwealth legislation by way of implementation of treaty obligations
would be infrequent and limited in scope. The framers of the Constitution
15 would not have foreseen with any degree of precision, if at all, the expansion
in international and regional affairs that has occurred since the turn of the
century, in particular the cooperation between nations that has resulted in
the formation of international and regional conventions. But it is not, and
could not be, suggested that by reason of this circumstance the power should
20 now be given an operation which conforms to expectations held in 1900. For one
thing it is impossible to ascertain what those expectations may have been. For
another the difference between those expectations and subsequent events as
they have fallen out seems to have been a difference in the frequency and
volume of external affairs rather than a difference in kind. Only if there was
25 a difference in kind could we begin to construct an argument that the
expression "external affairs" should receive a construction which differs from
the meaning that it would receive according to ordinary principles and
interpretation. Even then mere expectations held in 1900 could not form a
satisfactory basis for departing from the natural interpretation of words used
30 in the Constitution. (at p487)
And
15. I said, at p. 650:
"There is no reason at all for thinking that the legislative power conferred
by s. 51(xxix) was intended to be less than appropriate and adequate to enable
35 the Commonwealth to discharge Australia's responsibilities in international
and regional affairs. . . . As the object of conferring the power was to equip
the Commonwealth with comprehensive capacity to legislate with respect to
external affairs, it is not to the point to say that such is the scope of
external affairs in today's world that the content of the power given to the
40 Commonwealth is greater than it was thought to be in 1900." (at p487)
And
In Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965),
113 C.L.R. 54, Barwick C.J. said, at p. 86, that:
" . . . where a law is to be justified under the external affairs power by
45 reference to the existence of a treaty or convention, the limits of the
exercise of the power will be set by the terms of that treaty or convention,
that is to say, the Commonwealth will be limited to making laws to perform the
obligations, or to secure the benefits which the treaty imposes or confers on
Australia. Whilst the choice of the legislative means by which the treaty or
50 convention shall be implemented is for the legislative authority, it is for
p 158 9-3-2009
p159
this Court to determine whether particular provisions, when challenged, are

appropriate and adapted to that end." (at p488)
The truth is that the Framers made clear that external affairs was only in regard of powers
5 expressed in the Constitution. Where the Constitution does not provide any specific legislative
power then the Commonwealth of Australia could not make some treaty to circumvent
constitutional limitations.
As to conservation of water, the Framers of the Constitution specifically debated this and made
10 clear that this was within State legislative powers, unless it interfered with “navigation”. As such
the Constitution does show clear limitations.
ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE COMMONWEALTH [1981]

HCA 2; (1981) 146 CLR 559 (2 February 1981)
15 BARWICK C.J.
12. Before turning to the interpretation of the language of s. 116, having
regard to the various submissions made as to its meaning, I wish to say
something as to the use in that connexion of material extraneous to the text
itself. First, as to the use of the Convention debates: the settled doctrine
20 of the Court is that they are not available in the construction of the
Constitution: and, in my opinion, rightly so. An academic exercise to explain
historically why the Constitution was cast in a particular form is one thing.
To identify the meaning of the words in which the Constitution is expressed by
examination of its discursive development is quite another. The former, in my
25 opinion, has no place in the task of construing the text of the Constitution
except perhaps in the case of an ambiguity in that text which cannot otherwise
be resolved. But, absent the possibility which such ambiguity may present, the
task of educing the meaning of the words constitutionally employed derives, in
my opinion, no assistance from a consideration of the process by which that
30 text came into being. Indeed, attention to the course of the convention
debates might well distract the mind from the proper meaning of unambiguous
words in the text. (at p578)
13. That is not to say, however, that that meaning must be assigned without
35 regard to the sense in which the words of the text were understood in the day
of their expression. As I have said elsewhere, the then current meaning of the
words used in the text is the meaning, the connotation, they must thereafter
bear, though in application in later times they may achieve results not within
the contemplation of those who wrote the text. In other words, the denotation
40 of the words may expand whilst their connotation remains fixed. (at p578)
14. Secondly, the use of historical material generally is, in my opinion,

subject to the same observations and limitations. (at p578)
45 15. Thirdly, there is the resort to the text of the American Constitution,
and in this instance to the text of the Bill of Rights, and to the decisions
of the American courts, particularly those of the Supreme Court in construing
these texts. The plaintiffs have placed considerable emphasis on this
material: indeed, it has formed a major element in their submissions. (at
50 p578)
p 159 9-3-2009
p160
16. Again, the text of our own Constitution is always controlling. Even
similar or identical language in the American instrument to that in our
Constitution can, in my view, rarely, if ever, be controlling. But
5 divergencies in the respective texts must inevitably weaken, if indeed they do
not destroy, any support which might be sought to be derived from the American
text or its construction. In the case of ambiguous language in our own text,
language reasonably capable of bearing more than one meaning, a consideration
of the American text and of its judicial interpretation, particularly that
10 which preceded the expression of the Australian text, may assist to determine
which of those meanings the language of our text should bear. But, in this
case, in my opinion, there is no ambiguity in the relevant text. (at p578)
17. Further, in the instant case, not merely is there difference between the
15 Australian text and the language of the relevant provisions of the Bill of
Rights, but that language had received an interpretation before the adoption
of our Constitution. It later had further and at times different
interpretation. The adoption of such diverging language thus has a more than
usual significance. It can scarce be said with reason that the use of
20 different, and as I think radically different, language in our Constitution,
indicated an intention thereby to achieve what the American courts had decided
to be the result of the American text. I am not called upon here to discuss
these judicial pronouncements. It suffices to say that, for myself, I would
not necessarily agree with them; indeed, in some respects I could not accept
25 them. But, more importantly, the very divergence in the language of our text
from the corresponding terms of the Bill of Rights, assuming those decisions
rightly assigned meaning to them as at the time of our federation, makes it in
my view more than unsatisfactory to attempt to apply to our text the meaning
and operation given to the relevant portion of the Bill of Rights. (at p579)
30 And
It would seem paradoxical if we, although forbidden to
consider the debates of our own constitutional conventions for the purpose of
discovering what the delegates thought was the meaning of a particular
provision accepted by the Convention, should nevertheless, in construing s.
35 116, indirectly give weight to the opinions of Thomas Jefferson as to the
meaning of the similar words of the First Amendment.
And
32. Here, the impugned legislation in substance appropriates, and authorizes
40 the disbursement of, part of the consolidated revenue of the Commonwealth for
the financial support of the education of Australians by and according to the
regiment of non-government schools, including such schools as are owned and
conducted by bodies professing and practising the Christian religion, albeit
according to the doctrines of a particular church. The financial aid is
45 expressly limited to the educational activities of such schools. (at p582)
JUDGE7 WILSON J.
29. Before I deal with the meaning of the relevant clause in the section, I
shall examine the competing submissions concerning the reach of the section.
50 The plaintiffs argue that s. 116 is a singular provision in the Constitution,
p 160 9-3-2009
p161
standing alone as a formal guarantee of a personal freedom, of the type found

in the Bill of Rights in the Constitution of the United States of America. As
such, it controls every law-making power vested in the Parliament of the
Commonwealth, whether that power is to be found in ss. 51, 81, 96, or 122.
5 Reliance is placed upon the dictum of Latham C.J. in Adelaide Company of
Jehovah's Witnesses Inc. v. The Commonwealth (1943) 67 CLR 116 , at p 123 :
"Section 116 is a general prohibition applying to all laws, under
whatever power those laws may be made. It is an overriding provision. It does
not compete with other provisions of the Constitution so that the Court should
10 seek to reconcile it with other provisions. It prevails over and limits all
provisions which give power to make laws."
(cf. also McTiernan J. (1943) 67 CLR, at p 156 .)
And
While on present authority it is
15 not permissible to seek the meaning of s. 116 in the convention debates, I may
say that I find it interesting that in the course of the conventions the
religion clause began as a denial of power to the States, then was
re-addressed to both the States and the Commonwealth, and finally took its
present form. The separationist view of establishment, for which the
20 plaintiffs contend, does not sit well with the form of s. 116, addressed as it
is only to the Commonwealth Parliament. The objective sought to be achieved by
a clause construed consistently with the plaintiffs' contention could so
easily be subverted by any of the State legislatures, which remain free to
give such aid or support to religious bodies as they wished. But no State
25 legislature could establish a national religion, and hence the prohibition was
rightly directed to the Commonwealth. It will also be recalled that the 1898
Convention was invited to adopt a form of words for the religion clause which
would have placed the present issue beyond doubt, when an amendment from
Tasmania to the effect that the clause include the words "nor appropriate any
30 portion of its property for the propagation or support of any religion" was
proposed and defeated. Be these things as they may, I believe it would be
wrong to attach undue significance to the history of the clause. The actual
words of the text supply the only firm ground on which to base a conlusion.
(at p654)
35
Hansard 17-3-1898 Constitutional Convention Debates (Official Record of the Debates of
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten
40
Mr. REID.-I suppose that money could not be paid to any church under this
Constitution?
45 Mr. BARTON.-No; you have only two powers of spending money, and a church could
not receive the funds of the Commonwealth under either of them.
What is shown is that in 1982 the High Court of Australia albeit making clear that the
Hansard records of the constitution convention Debates could not be used, somehow it still
was referred to as to purportedly show, Wilson J to be correct. This, while the quotation
50 below shows that religious funding is not permitted. Schools operating under the Church
p 161 9-3-2009
p162
could be deemed to be religious funding. To take it otherwise could mean that any fanatical
religion merely could use in time to come the principle to be a school and attract monies
from Consolidated Revenue contrary to the intentions of the Framers of the Constitution.
.
5 However, since 1904 by a decision of O'Conner J of the High Court of Australia the usage of the
Hansard records of the Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention) were denied, as can be noted now, that in the Tasmania
Dam case (Franklin Dam) and in the SYKES v. CLEARY and OTHERS case for example the
High Court of Australia did a turn about, and has now decided that it does rely upon the very
10 Hansard records of the Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention).
Indeed the High Court makes clear that words should be interpreted as was applicable in 1900.
Indeed it was an absurdity that from 1904 till 1992 the Hansard records of the Constitution
15 Convention)were refused to be used while on the other hand the Hansard records of the
Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)were permitted to be used for so far it was used in Quick & Garran.
It is no surprise that Mr G. H. Schorel-Hlavka published in his books, comments by the High
Court of Australia, that Quick & Garran was in fact not correct in everything they, Quick and
20 Garran had stated. After all where Dr Quick had been defeated during the Constitution
Convention), in particular in regard to the “citizenship” issue, then one hardly would expect him
to set this out fully and extensively under that heading given his difference of opinion on the
“citizenship” issue with the others when they were in debate.
25
JUDGE6 DEANE J.
Official Record of the Debates of the National Australasian Convention (1891), at p.
30 14; and see, also, the comments of Mr. Alfred Deakin made at the Imperial Conference of
1907 and quoted by Evatt and McTiernan JJ. in Burgess' Case, at p. 685. (at p543)
.
Here the Court clearly referred to the Hansard records of the Constitution Convention Debates
(Official Record of the Debates of the National Australasian Convention) albeit that the
35 intentions of the Framers of the Constitution were still misrepresented as set out in Mr G. H.
Schorel-Hlavka's books
Still, the High Court of Australia did clearly show that it relied upon the Hansard records of the
Constitution Convention Debates (Official Record of the Debates of the National
40 Australasian Convention), something that was previously referred to by Wilson J in the 1982
case as not permissible.

45 JUDGE7 DAWSON J.
The external affairs power originally
referred to "external affairs and treaties". The references to treaties in
both the covering clause and par. (xxix) were omitted (see Convention Debates
of 9th September, 1897, and 21st January, 1898) and the only reference to
50 treaties in the Constitution is in s. 75(i), which bestows original
p 162 9-3-2009
p163
jurisdiction upon the High Court in all matters arising under treaties. There
can be little doubt that the express omission of any reference to the making
of treaties was a reflection of the accepted view at the time that the treaty
making power was, and was to remain, in the Imperial Crown and was to form no
5 part of the functions of the Commonwealth.
SYKES v. CLEARY and OTHERS (1992) 176 CLR 77 F.C. 92/046

JUDGE1
MASON C.J., TOOHEY AND McHUGH JJ.
10 . If such an office of profit in
a State stood outside s.44(iv), there would have been no need to exclude State
Ministers from the disqualification. The Convention Debates reveal that the
exclusion of State Ministers from the disqualification was put forward because
it was believed that State Ministers otherwise would be disqualified because
15 each of them was relevantly the holder of an office of profit under the Crown
((18) Official Report of the National Australasian Convention Debates,
Adelaide, 22 April 1897, p 1198; Melbourne, 7 March 1898, pp 1941-1942). The
exclusion of State Ministers from the disqualification was designed to ensure
their availability for election at the inception of the Commonwealth
20 Parliament. The exclusion in the last paragraph of s.44 of those receiving
certain payments as officers or members of the Queen's navy or army proceeded
likewise on the footing that otherwise s.44(iv) would disqualify such persons.
Both the text of s.44(iv) and the reason for the inclusion of the last
paragraph in the section support the opinion of the commentators that the
25 disqualification extends to State officers ((19) Quick and Garran, Annotated
Constitution of the Australian Commonwealth, (1901), pp 492-493; Harrison
Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910), p128.)
Mr G. H. Schorel-Hlavka in one of his published books, set out extensively, CHAPTER 11 of

30 INSPECTOR-RIKATI on CITIZENSHIP how the High Court of Australia had omitted to use
the Hansard records in an appropriate matter and had also taken quotations out of context.
Eastman v The Queen [2000] HCA 29 (25 May 2000)

Similar views have been expressed in more recent cases. In 1981 in Attorney-General
35 (Vict); Ex rel Black v The Commonwealth[108], speaking of the meaning of s 116 of the
Constitution, Mason J said that "a Constitutional prohibition must be applied in accordance
with the meaning which it had in 1900." In 1986 in Brown v The Queen[109], Wilson J
said of s 80 of the Constitution that "in interpreting a statute it is necessary to determine
the meaning of the words used as they were understood at the time when the statute
40 was passed."

the National Australasian Convention), (Folder 33)
Sir JOSEPH ABBOTT.-
p 163 9-3-2009
p164
I have heard men express their astonishment that the Judges of our own Supreme
Court have not taken into consideration the Hansard debates when they were giving
judgment.
5 And
Mr. SYMON.-It is a pity these interjections should be made, but I cannot help noticing
that one. My honorable friend said a few minutes ago that the lawyers were the cause of the
trouble.
Sir WILLIAM ZEAL-And I honestly believe it.

10 And
Mr. REID (New South Wales).-
It is a little bit of laymen's language which comes in here very well.
Mr. BARTON-It is the language of three lawyers.

Mr. ISAACS.-And one of the lawyers who helped to frame the clause now finds fault
15 with it.
And
Mr. WALKER.-Here is what Mr. Thorn says about Mr. Barton's Bill-
We must have the whole or nearly the whole of Mr. Barton's Bill, and it is a waste of time
and money for us to go to this Convention on the lines suggested by Mr. Barton and Sir
20 Samuel Griffith, for I see very little difference between their schemes. They are both
lawyers, and so long as lawyers swim they do not care who sinks.
National Australasian Convention),
Mr. REID.-Surely you do not want to say that on a mere technicality a law may be
25 declared invalid.
Mr. MCMILLAN.-I cannot understand how there could be such a technicality.
Mr. REID.-Because you are not a lawyer.
Mr. MCMILLAN.-No; the lawyers have taken a very large part in this discussion, and I
have followed them very closely, but my intelligence tells me that this is not a fair way of
30 dealing with the subject. While I recognise the good motives with which the amendment
has been introduced, I shall have to vote against it.

the National Australasian Convention),
35 Sir JOHN DOWNER.-
Then, I ask honorable members to consider this: Although the clause says that trade and
intercourse throughout the Commonwealth shall be absolutely free, you have to look
through this Constitution at the other provisions, which show clearly what is the
intention. This is a broad central declaration; the rest you gather from a perusal of
40 other provisions of the Bill.
This statement makes clear that provisions must be considered as to what else is stated in the
Constitution.
p 164 9-3-2009
p165
National Australasian Convention), (Folder 33)
ABOVE Sir JOHN FORREST (Western Australia).-
5 Because, as has been said before, it is [start page 357] necessary not only that the
beyond the possibility of suspicion;
END QUOTE
.
Mr. ISAACS.-
We want a people's Constitution, not a lawyers' Constitution. We shall be making the
Supreme Court, not the master, but the tyrant of the Constitution, by inserting a clause of
this kind. (Folder 33)
15
Sir JOSEPH ABBOTT.-I can quote from the Hansard debates. I do not speak so very
often that I should be invariably met with interruptions. The Chairman, of course, has a
20 perfect right to call my attention to any irregularities, and I am not above learning, but I
object to these continual interruptions by honorable members who have occupied a very
large amount of time in this Convention, and who are always exhorting other honorable
members not to waste time. The contention of Mr. Carruthers was that-
The resolutions we have passed, the Bill which we are now framing, and the union which
25 we hope to consummate, declare that this is to be a union under the Crown.
Mr. Symon, on the other hand, understands-
We are creating a nation which is to be self-contained, self-sufficing in every possible

respect.
I deny that; I believe that, whatever we are doing, we desire to remain an integral part of
30 the British Empire. Although one may believe, as I have no doubt Mr. Symon does
conscientiously believe, that this proposal will not interfere with our desire in that respect, I
am one of those who believe that it will interfere greatly in regard to it. We have the
opinion of a great constitutional writer, Dr. Bourinot, who is accepted as an authority on
most matters relating to parliamentary law, and who is continually quoted as a
35 constitutional authority throughout the British Empire. What does he say with regard to
these proposals? He read a paper, which has been reprinted from the Transactions of the
Royal Society of Canada, and is entitled-"The Canadian Dominion and proposed Australian
Commonwealth"-a Study in Comparative Politics. It contains a valuable discussion on the
importance of retaining the appeal to Her Majesty in Council. At page 27 he cites a passage
40 by Sir Henry Wrixon, which crystallizes the whole controversy. That passage reads:-
At present it is one of the noblest characteristics of our empire that over the whole
of its vast area every subject, whether he be black or white, has a right of appeal to his
Sovereign. That is a grand right, and a grand link for the whole of the British Empire. But it
is more than that. It is not, as might be considered, a mere question of sentiment, although I
45 may say that sentiment goes far to make up the life of nations. It is not merely that, but the
unity of final decision preserves a unity of law over the whole empire. (Folder 33)
p 165 9-3-2009
p166
And
Sir JOSEPH ABBOTT
To laymen, possibly, the procedure in regard to appeals to the Privy Council is unknown.
First, the judgment of the Supreme Court is delivered, and, within a certain time, any one
5 who desires to go to the Privy Council applies for leave to appeal. That leave is given, and,
until lately, it was a matter that was entirely within the power of the appellant when be
would have the transcript made up by the Prothonotary of the Supreme Court, and remitted
to the Privy Council in London. It was only within the last few years that compulsion was
put on the appellant to make up his transcript, which is a copy of all the proceedings, a
10 copy of the judgment, and a copy of the documents which influenced the court in coming
to the decision which was about to be appealed against. Necessarily there was great delay
in getting that transcript to the Privy Council, but under comparatively recent orders all that
has been abolished, and the transcript must be remitted to the Privy Council within a
certain time. Then, when the transcript reaches London, the solicitors there have to enter
15 the case for hearing. There again is delay, and always in these great cases there must be
delay, because both parties are unwilling to go to the Privy Council, and are trying their
very best to secure a settlement of the case. Dr. Bourinot again comments on the Privy
Council in the proceedings of the Canadian Royal Society for 1897, which has not yet been
generally distributed in Australia. As I said before, people will acknowledge Dr. Bourinot
20 as an authority on Constitutional Government. He says-in Canada during the Victorian
Era, page 28:-
Here, also, the wisdom and learning Of the Judicial Committee of the Privy Council of
England and of the Canadian Judiciary are, to a large extent, nullifying the contentions of
politicians, and bringing about a solution of difficulties, which, in a country divided
25 between distinct nationalities, might cause serious complications if not settled on sound
principles of law which all can accept.
Mr Francis James Colosimo is entitled to attack the legal validity of this Court and any person
purporting to be acting as an adjudicator as to deny this in itself would deny Mr Francis James
30 Colosimo a FAIR and PROPER trial. Indeed, there are ample of Authorities to enforce this right.
Johnson v. Miller (1938 A.L.R 104 at 112 per Dixon J.
“The Defendant is not only entitled to be appraised of the legal nature of the offence.
35 But also with the particular act, matter or thing alleged as the foundation of the charge.”
No wrong committed in criticism of administration of justice:

LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINIDAD and TABAGO (1936)
A.C. 332, at 335
40 “But whether the authority and position or an individual judge, or the due administration
of justice, is concerned, no wrong is committed by any member of the public who
exercises the ordinary right of criticising, in good faith, in private or public, the public
act done in the seat of justice. The path of criticism is a public way, the wrong headed
are permitted to err therein: provided that members of the public abstain from imputing
45 improper motives to those taking part in the administration of justice, and are genuinely
exercising a right of criticism, and not acting in malice or attempting to impair the
p 166 9-3-2009
p167
administration of justice, they are immune. Justice is not a cloistered virtue: she must
be allowed to suffer the scrutiny and respectful, even though outspoken, comments
of ordinary man”
5 Again
Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny
and respectful, even though outspoken, comments of ordinary man”
The right for the public to be informed about the judicial process being properly applied or acts:
10 THE COMMENTS OF SIR JAMES MARTIN C.J., IN THE MATTER “THE EVENING
NEWS” (1880) N.S.W. LR 211 AT 239.: (Folder 01)
“The right of the public to canvass fairly and honestly what takes place here cannot be disputed.
Our practice of sitting here with open doors and transacting our judicial functions as we do,
always in the broad light of day, would be shown of some of its value if the public opinion
15 respecting our proceedings were at all times to be rigidly suppressed. We claim no immunity
from fair, even though it be mistaken criticism.”
As to the value of criticism, keeping a judge, subject to rules and principles of honour and
justice;
20 (a) R v FOSTER (1937) St. E Qd 368
(b) Re WASEMAN (1969) N.Z.L.R. 55, 58-59
(c) Re BOROVSKI (1971) 19 D.L.R. (34) 537
(d) SOLICITOR-GENERAL v RADIO AVON LTD (1978) 1 N.Z.L.R. 225, at 230-31
25 VICTORIA v. THE COMMONWEALTH AND CONNOR; NEW SOUTH WALES v. THE

COMMONWEALTH; QUEENSLAND v. THE COMMONWEALTH; WESTERN
AUSTRALIA v. THE COMMONWEALTH (1975) 134 CLR 81 (Folder 02)
31. It was said in Woodward v. Sarsons (1875) LR 10 CP 733, at pp 746-747, and has
30 often been repeated in judgments of great authority, that "the general rule is, that an
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory
enactment be obeyed or fulfilled substantially". I must, with respect, confess that I find it
difficult to accept that this is a correct statement of the distinction between mandatory or
imperative and directory enactments; I would be inclined to prefer the statement in Clayton
35 v. Heffron, where it was said (1960) 105 CLR, at p 247 :
"Lawyers speak of statutory provisions as imperative when any want of strict

compliance with them means that the resulting act, be it a statute, a contract or what you
will, is null and void. They speak of them as directory when they mean that although they
40 are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not
mean that the resulting act is wholly ineffective, is null and void."
And
. But it is beyond question that the courts have jurisdiction to pronounce upon the validity
of a law enacted in the apparent exercise of an extraordinary law-making power conferred
45 upon a Parliament, when it is conditioned upon the existence of certain facts or events, and
that the Court may in the exercise of that jurisdiction declare an Act invalid on the ground
that the preliminary conditions have not been satisfied, even if the preliminary conditions
relate to proceedings in Parliament. That this is not a new or novel assertion of jurisdiction
p 167 9-3-2009
p168
by the Court is evident from the observations of Dixon C.J., McTiernan, Taylor and
Windeyer JJ. in Clayton v. Heffron (1960) 105 CLR 214 , at p 235 :
"Of course the framers of a constitution may make the validity of a law depend upon
5 any fact, event or consideration they may choose, and if one is chosen which consists in a
proceeding within Parliament the courts must take it under their cognizance in order to
determine whether the supposed law is a valid law."
This statement accords with what was said by the Privy Council in Bribery Commissioner
10 v. Ranasinghe (1965) AC 172, at pp 197-198 and Rediffusion (Hong Kong) Ltd. v.
Attorney-General (Hong Kong) (1970) AC 1136, at pp 1156-1157. What is more, it is an
approach appropriate to the unique position occupied by this Court as the guardian of the
Constitution , charged as it is with the responsibility of determining whether legislative
powers conferred by the Constitution are validly exercised in accordance with its
15 requirements. (at p182)
Mr Francis James Colosimo relies upon Hansard quotations and indeed the Framers of the
Constitution (Commonwealth of Australia Constitution Act 1900 (UK) themselves made clear
during the Debates that the High Court of Australia would have to interpret their intentions from
20 what was recorded in the Hansard during the Debates. The High Court of Australia itself has
expressed the view that to interpret the Constitution one must consider what was applicable at
the time of federation and itself relied upon Quick and Garran explanations and quotations of
the Hansard records of the Constitution Convention Debates (Official Record of the Debates
of the National Australasian Convention).
25
Camden Marquis v Inland Revenue Commissioners (1914) 1 KB 641 (per Latham C.J.)
“In Bendixon v Coleman (1945) 68 CLR 401 at 415
Stitt v Radford (1926) 26 SR (NSW) 263 at 265 43 WN at 75
Re Rippon housing confirmation order 1938
30 White v Minister for Health (1939) 2 KB 838
The court takes judicial notice of the meaning of ordinary words, and evidence is not
admissible to expound their meaning; though the court, in addition to using its own
knowledge, may refer to standard authors and authoritative dictionaries in order to obtain
assistance in interpretation.”
35
Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
“The golden rule of construction is, that words are to be construed according to their
natural meaning, unless such a construction would render them senseless, or would be
opposed to the general scope and intent of the instrument, or unless there is some cogent
40 reason of convenience in favour of a different interpretation.”
Maxwell, Interpretation of Statutes 8th Ed. p2;

Hotel Kingston Ltd. v Federal Commissioner of Taxation (1944) 69 CLR 221; 28
Austin Digest 752
45 “The first and most elementary rule of construction is that it is to be assumed that the
words and phrases are to be used in their technical meaning if they have acquired one and
in their popular meaning if they have not, and that the phrases and sentences are to be
construed according to the rules of grammar; and from this presumption it is not allowable
to depart, where the language admits to no other meaning, nor, where it is susceptible of
50 another meaning, unless adequate grounds are found, either in the history or cause of the
p 168 9-3-2009
p169
enactment or in the context or in the consequences which would result from the literal
interpretation, for concluding that that interpretation does not give the real intention of the
legislature.”
5 Hansard 16-3-1898 Constitution Convention Debates (Official Record of the Debates of

Sir RICHARD BAKER (South Australia).-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
10 consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass
the people of United Australia and create dissatisfaction with our work, it must be
evident that too much care has not been exercised.
15
Mr. BARTON:
Our purposes of government may be national while we preserve the utmost loyalty to
20 the monarch whom the constitution sets over us. As the hon. member, Sir George
Grey, has expressed it, we have constituted the Queen a member, and the highest
member, of our parliament. The association of the Queen with the action of the
commonwealth is distinct, and is firmly embedded in the whole bill. If that is done,
there can be no association of the idea of republicanism with this bill.
25
Hansard 2-3-1898 Constitutional Convention Debates (Official Record of the Debates of the
That is, for admission into this political Union, which is not a republic, which is not
30 to be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest
degree.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates

35 of the National Australasian Convention)
Mr. GLYNN.-There is no British Constitution that we can make a comparison
with. The American Constitution is a close analogue, and that Constitution continues
the old English law. Although there is no Royal prerogative there is a sovereign
Commonwealth and a sovereign State. The distinction is not between a monarch
40 and a republic, but the sovereignty of the state itself.
Now consider;
13. In Kirmani v Captain Cook Cruises Pty Ltd [No 1][11], Gibbs CJ said of the Statute of
Westminster that:
45 "[i]ts principal purpose was to give to the Dominions (Canada, Australia, New
Zealand, the Union of South Africa, the Irish Free State and Newfoundland) that
p 169 9-3-2009
p170
autonomy and equality of status with each other and with the United Kingdom
which had been recognized by the Balfour Declaration of 1926. By a process of
gradual development, the status of the Dominions had changed; as a matter of
constitutional practice they had come to be regarded, not as colonies, but as
5 sovereign communities."
14. The constitutional term "subject of the Queen" must be understood in the light of
the development and evolution of the relationship between Australia and the UK
and between the UK and those other countries which recognise the monarch of the
UK as their monarch. In particular, the expression "subject of the Queen" can be given
10 meaning and operation only when it is recognised that the reference to "the Queen" is not
to the person but to the office. That recognition necessarily entails recognition of the
reality of the independence of Australia from the UK.
Knight v Bell and Anor M46/2000 (13 September 2002)

KIRBY J: The State of Victoria is part of the Commonwealth of Australia, and that
15 is all you have to know. That is in our federal Constitution.
And
KIRBY J: We are not. We are the Commonwealth of Australia, an independent

20 country.
Again;
25 Mr. SYMON (South Australia).-
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
30 What we now find is that the Framers of the Constitution themselves made clear that no form of
republicism could exist as the Constitution does not provide for this, and yet we now find that
judgments portray that “By a process of gradual development” somehow now this was
changed.
35 To argue the concept of “gradual development” then the Constitution could be circumvented
time and again as to its limitations and so also the need for any Section 128 Referendum to
amend the Constitution. This kind of application can never be justified.
It is not relevant if the Queen gave Royal Assent to any enactment, for if it is considered to be
40 unconstitutional then it is ULTRA VIRES and as such the fact that the Queen or on her behalf
the Governor-General may have given Royal Assent does not make an unconstitutional
legislation valid in law. Likewise, the British Parliament may have enacted the Westminster Act,
or any other Act, as it likes but where it is in breach of the Constitution then it is and remains
ULTRA VIRES, as the Constitution can only be amended by way of a section 128 Referendum!
45 For example, the now defunct Cross Vesting Act despite having been given Royal Assent was
still declared to be beyond constitutional powers! This truly was the gift from the Framers of the
p 170 9-3-2009
p171
Constitution and they may well be proud of their labours as they insured that the Constitution
was from the people to the people.
BP Australia Ltd v Amann Aviation Pty Ltd & ors [1996] 491 FCA 1 (24 June 1996)
5 REASONS FOR JUDGMENT
BLACK CJ: I have had the advantage of reading the reasons for judgment prepared by
Lockhart J and by Lindgren J. I agree, for the reasons given by their Honours, that the
challenges made to the constitutional validity of crucial parts of the cross-vesting scheme
and the cross-vesting provisions of the Corporations Law fail.
10 The legitimacy of the cross-vesting of jurisdiction in civil matters as the subject of

legislation in furtherance of co-operative federalism is underlined by the fact that despite
there being, in the Australian judicial system, the Federal Court of Australia, the Family
Court of Australia, the six Supreme Courts of the states and the two Supreme Courts of the
internal territories, jurisdictional disputes are now virtually unknown. The problems for
15 litigants arising from the existence of separate systems of federal and state courts, predicted
as inevitable in some of the debates about federal courts in the 1970s, simply do not occur.
The history of federal, state and territory superior courts in Australia over nearly a decade
since the general cross-vesting scheme was established shows that co-operation can avoid
jurisdictional conflict and that conflict is not the inevitable consequence of the existence, in
20 a federation, of more than one system of courts. Since Chapter III of the Constitution
contemplates the creation of federal courts in a Federal Commonwealth in which there
would also be state courts, it would be surprising indeed if the Constitution prohibited co-
operative schemes which, whilst in no way compromising the integrity of the courts,
avoided disputes arising from the existence within the one nation of both federal and state
25 courts. As Lockhart J and Lindgren J show, it should be concluded that there is no such
prohibition.
.
Yet, appropriately in Wakim HCA 27 of 1999 the Cross Vesting Act was held to be beyond
constitutional powers and indeed contrary to constitutional limitations.
30 Anyone who would have researched as extensively as Mr G. H. Schorel-Hlavka has with the
Hansard records of the Constitution Conventions Debates (Official Record of the Debates of
the National Australasian Convention) would have been aware that there never could be a
conflict in legal jurisdiction. In the BP Australia Ltd v Amann Aviation Pty Ltd & ors [1996]
491 FCA 1 (24 June 1996) the Court simply got it wrong and this was underlined in the Wakim
35 HCA 27 of 1999 High Court of Australia decision. What it does show is, that no matter how
much experiences a lawyer may have in practice and/or as a judicial officer in the end the lawyer
still can make considerable errors. Isn’t that proven also by the numerous successful appears?
Therefore, a lawyer might have some more skill in litigation then the unrepresented Defendant
but his/her opinions may not necessarily be worth more then that of the unrepresented Defendant
40 or any other person. In fact a skilled lawyer may in bias and by omission knowingly manipulate
the law in the hope of getting away with such.
If the holding of as practice certificate was any guarantee that the lawyer would then be right or
act right, then no person engaging a lawyer could ever loose a case, on that premise. The truth is
that each time lawyers loose a case they had it wrong. And, their clients most likely facing a huge
45 legal bill as a result. They being paid, win or lose, no matter how much their advise to their client
might have been misconceived. This then is further problematic when a lawyer employed by the
Government to litigate is paid a wage and then regardless the outcome, his/her wage is not
altering by such outcome. Just another day in the office.
p 171 9-3-2009
p172
Mr Francis James Colosimo with his Attorney/Consultant/Expert witness, Mr G. H. Schorel-

Hlavka, there is no charge applicable. This, despite that Mr G. H. Schorel-Hlavka's research
and time spent may be far more extensive and specialised in Constitutional law then most
lawyers may ever do on a this and other certain subject matters.
5 What is required is not a judicial officer seeking to attack the messenger but rather to adjudicate,
as to what is constitutionally applicable, this, regardless of what judges previously may have
stated to the contrary.
10 “The oath of a justice of this court is ' to do right to all manner of people according to
15 my opinion, better that the court should be persistently wrong than that it should be
ultimately right..
20 wrong, and there are no circumstances countervailing the primary duty of giving effect to
25
This is what Mr Francis James Colosimo is about. To have a judicial determination about very
important issues.
BP Australia Ltd v Amann Aviation Pty Ltd & ors [1996] 491 FCA 1 (24 June 1996)
30 The Commonwealth enacted the Jurisdiction of Courts (Cross- Vesting) Act 1987 ('the
Commonwealth Cross-Vesting Act 1989 '); and complementary legislation was enacted in
each State, and in the Northern Territory. Under the legislation, the Supreme Courts of the
States and of the Territories were vested with civil jurisdiction (not criminal jurisdiction,
and not certain trade practices and industrial jurisdiction) of the Federal Court and the
35 Family Court, and those two Courts were vested with the full jurisdiction of the Supreme
Courts of the States and Territories.
As the Constitution was set up to ensure that any citizen accused of breach of Commonwealth
law was to be dealt with before a State Court exercising Federal jurisdiction and the State Court
40 had the power to NULLIFY Commonwealth legislation then obviously the purported Cross
Vesting Act sought to undermine the very constitutional guarantees the Framers of the
Constitution had provided for. There is a clear danger here, where lawyers are making up their
own versions as to what is applicable without the appropriate consideration as to what the
intentions of the Framers of the Constitution were as set out by them, and if in fact the Cross
45 Vesting Act sought to circumvent the requirement of a Section 128 of the Constitution
referendum! The lack of the existence of an OFFICE OF THE GUARDIAN, so much referred
to by both the Framers of the Constitution and Mr G. H. Schorel-Hlavka in his books, for a
constitutional council, that advises the government, the people, the Parliament and the Courts as
to constitutional powers and limitations. Void of this facility, basically we now have the
p 172 9-3-2009
p173
situation that a lawyer may think that having some law degree than this makes him/her
competent in considering whether constitutional law applies or not, despite lacking any
appropriate understanding and competence in relevance as to constitutional issues that may
apply. When judges are not, even after 100 years, able to agree upon what is constitutionally
5 applicable then one may well say that it is paramount and long overdue that a proper educational
facility is set up to begin to start to make sense of it all.
It is the Prosecutor who pursued to have Mr Francis James Colosimo before this
Court/Tribunal and Mr Francis James Colosimo simply makes clear first of all; “PROVE
JURISDICTION”!
10
Conspiracy
Commonwealth v. Hunt
(1842), American legal case in which the Massachusetts Supreme Court ruled that the
common-law doctrine of criminal conspiracy did not apply to labour unions. Until then,
15 workers' attempts to establish closed shops had been subject to prosecution. Chief Justice
Lemuel Shaw asserted, however, that trade unions were legal and that they had the right to
strike or take other steps of peaceful coercion to raise wages and ban nonunion workers.
The case stemmed from a demand by the Boston Journeymen Bootmakers' Society that an
20 employer fire one of its members who had disobeyed the society's rules. The employer,
fearing a strike, complied, but the dismissed employee complained to the district attorney,
who then drew an indictment charging the society with conspiracy. The Boston Municipal
Court found the union guilty.
25 Justice Shaw, hearing the case on appeal, altered the traditional criteria for conspiracy by
holding that the mere act of combining for some purpose was not illegal. Only those
combinations intended “to accomplish some criminal or unlawful purpose, or to
accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful
means” could be prosecuted. Shaw, in effect, legalized the American labour union
30 movement by this decision.
.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)
QUOTE
Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and
35 Webb J. said that "it is a deep-rooted principle of the law that before anyone can be
punished or prejudiced in his person or property by any judicial or quasi-judicial
proceeding he must be afforded an adequate opportunity of being heard."
END QUOTE
The Court therefore cannot so to say sideswipe Mr Francis James Colosimos oral, written or
40 other material and demand that Mr Francis James Colosimo, so to say, off the cuff set out all
legal issues but simply is bound to ensure that all material is appropriately considered, regardless
how burdensome this might be deemed to be.
CHH 92-217 page 78485 (1991)

45 QUOTE
“The Court could not make an order which otherwise fell outside
its jurisdiction merely because the parties consent to it..”
END QUOTE
p 173 9-3-2009
p174
Regardless then, even if the Court were to assume consent to the jurisdiction where some
unrepresented Defendant may not make a collateral attack upon the issue of jurisdiction, the trial
judge nevertheless cannot proceed and assume legal jurisdiction merely because of wanting to
assume to do so in a case. The BURDEN is upon the trial judge, in each and every case, to first
5 determine if the case is presented within its legal jurisdiction!
.
For example Australian citizenship is not a nationality but can only be obtained by obtaining
State citizenship.
Victoria has no legislation in place for this, as in 1975 the Victorian Constitution was amended to
10 refer to the Australian Citizenship Act 1948.
Because the Australian Citizenship Act 1948 is and remains ULTRA VIRES, as it was beyond
constitutional powers for the Commonwealth of Australia to declare/define “citizenship” a power
deliberately withheld from the Commonwealth of Australia, then it means that no person can
attain “Australian Citizenship” as intended by the Framers of the Constitution.
15 Dual citizenship is not a dual nationality as the Framers of the Constitution made clear;
Mr. SYMON.-
20 Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in
each person. There may be two men-Jones and Smith-in one state, both of whom
are citizens of the state, but one only is a citizen of the Commonwealth. That would
not be the dual citizenship meant. What is meant is a dual citizenship in Mr.
Trenwith and myself. That is to say, I am a citizen of the state and I am also a
25 citizen of the Commonwealth; that is the dual citizenship.
Yet we see in Moller v The Board of Examiners [1999] VSC 55 (1999);

Consequently there would appear to be significant differences between the local duty of
allegiance owed by aliens or non-citizens, and that owed by citizens or those who otherwise owe
30 a general duty of allegiance. When Parliament amended s.5(2) of the Legal Profession Practice
Act 1958, it chose to retain the obligation to take an oath of allegiance for those who wished to
become admitted to practise, but gave a right to those applicants to seek exemption from that
obligation. As was pointed out by the Chief Justice in Re Miller [1979] V.R. 381, at p.383, this
appears to be a recognition by Parliament of the importance attaching to that obligation. It is
35 therefore neither necessary nor desirable that any opinion should be expressed as to the right of
persons other than aliens or non-citizens to seek exemption under the amended sub-section. The
present applicant is a citizen of a foreign country and the considerations applicable to him are not
necessarily considerations applicable to citizens of this country, nor to persons who may hold
dual citizenship.", There clearly is a great misconception what “citizenship” really is about.
40
Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
45 that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
through ignorance into, the commission of any act which is unfavorable to the people
having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
50 the British Constitution is secured. It is secured by vesting in the people, through
p 174 9-3-2009
p175
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
5 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
10 we or our work can be accused of not providing for the popular liberty is something
which I hope the critics will now venture to explain, and I think I have made their
work difficult for them. Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
15 people. (Folder 33)
Again;
Having provided in that way for a free Constitution, we have provided for an
20 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.
It doesn’t matter what kind of treaty the Commonwealth of Australia may enter into, if it isn’t
within constitutional powers it remains ULTRA VIRES.
25 The arrangement between the Commonwealth of Australia and the British Parliament simply is
not one within the provisions of the constitution and therefore the Westminster Act or any other
Act cannot alter what is constitutionally applicable in the Commonwealth of Australia.
If the lawyers in this case, the police and even the judicial officer (judge or otherwise) if they
cannot under the Constitution obtain such said status as the Commonwealth perceives it can
30 grant them and by which the Commonwealth perceived granted “Australian citizenship” then
swearing Oath via the Act then none can be deemed to be legally validly appointed.
It is not for Mr Francis James Colosimo to prove a judge or other judicial officer to have any
legal standing to adjudicate rather the judge or other judicial officer having been faced with an
OBJECTION must himself/herself prove to be having a such legal standing as is lawful.
35
 What is “citizenship” (“State citizenship”, “Australian citizenship”, “Commonwealth
citizenship”) within constitutional meaning?
 How does one obtain “citizenship”?
 What is “citizenship” within constitutional meaning?
40  What is the difference between State citizenship and Commonwealth citizenship?
 Who has the power to legislate regarding citizenship?
45 Mr. SYMON.-
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p176
Dual citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in
each person. There may be two men-Jones and Smith-in one state, both of whom are
citizens of the state, but one only is a citizen of the Commonwealth. That would not be
the dual citizenship meant. What is meant is a dual citizenship in Mr. Trenwith and
5 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. I put this only as an argument, because no
one would anticipate such a thing, but the Commonwealth Parliament might say that
nobody possessed of less than £1,000 a year should be a citizen of the Federation. You are
putting that power in the hands of Parliament.
10 Mr. HIGGINS.-Why not?
rest this Constitution on a foundation that we understand, and we mean that every
15 with regard to one particular set of people who are subject to disabilities, as aliens,
our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
And
20 Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and
learned member (Dr. Quick) has so eloquently dealt? If that is the case, what this
Convention is asked to do is to hand over to the Federal Parliament the power, whether
25 exercised or not, of taking away from us that citizenship in the Commonwealth which we
acquire by joining the Union. I am not going to put that in the power of any one, and if it is
put in the power of the Federal Parliament, then I should feel that it was a very serious blot
on the Constitution, and a very strong reason why it should not be accepted. It is not a
lawyers' question; it is a question of whether any one of British blood who is entitled to
30 become a citizen of the Commonwealth is to run the risk-it may be a small risk-of
having that taken away or diminished by the Federal Parliament! When we declare-
"Trust the Parliament," I am willing to do it in everything which concerns the working out
of this Constitution, but I am not prepared to trust the Federal Parliament or anybody to
take away that which is a leading inducement for joining the Union.
35 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 continent
Australia. The terms “Australian citizen”, “Australian citizens”, “Australian citizenship”,
“Commonwealth citizens”, “federal citizen”, “citizen of the Commonwealth” were used
repeatedly by the Framers of the Constitution, as shown below, and as such were terms not as to
40 “nationality” but in regard of citizenship as being a resident in the colonies (now States) and the
Commonwealth of Australia. Therefore any constitutionalist, would be aware that the term used
“Australian citizenship” cannot be held to relate to nationality. Neither can there be an
“Australian nationality” merely because such is stated by some judges who, not understanding
the full legal implications of such statements, happen to declaration such and take upon
45 themselves proper never granted them that is legislate for this without following the procedures
within Section 128 of the Constitution.
p 176 9-3-2009
p177
13-02-1890 Re; Australian citizen

13-03-1891 Re; Australian citizens
Re; dual citizenship
5 26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
10 Re; citizen of the Commonwealth
12-04-1897 Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
20 28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
08-02-1898 Re; Australian citizenship
25 Re; citizen of the Commonwealth
Re; federal citizenship
Re; citizen of the Commonwealth
35 Re; Commonwealth citizenship
10-03-1898 Re; Australian citizenship
Such as Hansard 8-2-1898 Constitution Convention Debates (Official Record of the

Debates of the National Australasian Convention) (Folder 33)
45 Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a
case which is extremely unlikely to occur-prohibit a citizen of the neighbouring colony
from acquiring property in the legislating colony, or only allow him to acquire it under
adverse conditions? But why not? The whole control of the lands of the state is left in that
state. The state can impose what conditions it pleases-conditions of residence, or
50 anything else-and I am not aware that a state has surrendered the control of the
p 177 9-3-2009
p178
particular administration of its own lands, or of anything that is left to it for the
exercise of its power and the administration of its affairs. I would much prefer, if there
is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one
modification, omitting the words-"and all other persons owing allegiance to the Queen."
5 That would re-open the whole question as to whether an alien, not admitted to the
citizenship here-a person who, under the provisions with regard to immigration, is
prohibited from entering our territory, or is only allowed to enter it under certain
conditions-would be given the same privileges and immunities as a citizen of the
Commonwealth. Those words, it seems to me, should come out, and we should confine
10 the operation of this amendment so as to secure the rights of citizenship to the citizens of
the Commonwealth. I think, therefore, that with some modification the amendment
suggested by Tasmania would.
Clearly, in 1891, 1897 and 1898 the Framers of the Constitution had then already referred to
15 Australian citizenship, well before the Australian Citizenship Act 1948 was created, yet the
Framers themselves being very clear as to citizenship being a State power and great caution was
taken that it remain in the hands of the State and cautioned that such control of citizenship not
fall into the power of Commonwealth Legislation. The independence of each State was of
paramount concern to the Framers of the Constitution and the Bill would not have been passed
20 had it not remained as such. It cannot be held that somehow there is a constitutional ”Australian
citizenship” and somehow also a legislative “Australian citizenship” one meaning political
membership/resident and the other meaning nationality!
It is for the Prosecutor to prove that there was a referendum held that sanctioned for the State
legislative powers about “citizenship” to have been transferred to the Commonwealth of
25 Australia! Unless and until the Prosecutor can prove this, this Court simply must find that there
never was any constitutional powers for the Commonwealth of Australia to legislate as to
Australian citizenship as to define/declare it.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
30 "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 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
35 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 client discloses,
if ordered, all relevant documents, even those that are fatal to his case. He must
40 disregard the specific instructions of his client, if they conflict with his duty to the court."
Again;
He must see that his client discloses, if ordered, all relevant documents, even those
that are fatal to his case.
45 .
Yet, we find that somehow VCAT in its form (A) INFROMATION (S114) as referred to
previously indicates it may not have objections made. As such, what it indicates in general that
the Prosecutor (being the lawyers for Moorabool Shire Council is concealing likely relevant
material. What kind of litigation can this possibly amount to where VCAT from onset makes this
50 clear not just in regard of Moorabool Shire Council but in regard to any case before it?
p 178 9-3-2009
p179
.
It is not at all the responsibility of Mr Francis James Colosimo to present all relevant
Authorities, rather the Prosecution has that onus and must somehow convince this Court it has
legal jurisdiction to entertain the charges.
5
R. Watson; Ex Parte Armstrong: Full Court of the HIGH COURT: (1976) 1 FLR 11, 297; 9
ALR 551;(1976) FLC 90-059
"exercises judicial power and must discharge his duties judicially."
.
10 In the Marriage of P.N. and J.S. Axtell 7 FLR 931
“The test of judicial bias as laid down by the high court is ‘whether it has been
established that it might reasonably be suspected by a fair minded person that the judge
might not resolve the question before him with a fair and unprejudiced mind’”
“An appellated court has to consider whether on a reading of a transcript it should
15 conclude that a fair minded person would consider that the husband did not have a fair
hearing and that the issues raised by his case were not fairly considered.”
Official Solicitor v K. (1936) AC 201;

Reynolds v Reynolds (1975) 1 ALR 318;47 ALJR 501;
20 Corbett v Corbett (1953) 2 ALL E.R. 69 referred to
“That a court of appeal in exercising its discretionary power to rectify a miscarriage of justice
should not permit a conceivable miscarriage of justice to occur,
.
R v National Liquors Ltd. (1922) 2 AC at 156; (1922) ALL ER Rep at p 351
25 “Its jurisdiction is to see that the inferior court has not exceeded its own, and for that very
reason it is bound not to interfere in what has been done within that jurisdiction for in
doing so it would itself, in turn, transgress the limits within its own jurisdiction of
supervision, not of review, is confined. That supervision goes to two points; one is the
area of inferior jurisdiction and the qualifications and conditions of its exercise; the other
30 is the observance of the law in the course of its exercise.”
Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997

(1968) 1 ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson
Upjohn: - (Irrelevant consideration) “Here let it be said at once, he and his advisers have
35 obviously given a bona fide and painstaking consideration to the complaints addressed to
him; the question is whether the consideration was sufficient in law.”
.
R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
“However in some cases the words or conduct of a judge may be such as to lead the parties
40 reasonably to think that the judge has prejudged an important question in the case, and then
prohibition may issue. Of course, the court which is asked to grant prohibition will not
lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be
"firmly established" that such a suspicion may reasonably be engendered in the minds of the
parties or the public, as was made clear by the court in R v Commonwealth Conciliation
45 and Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in
the passage cited in R v Watson; Ex Parte Armstrong (132 CLR at 262).”
“The critical question, however, is not whether a judge believes he or she has prejudged a
question, but whether that is what a party or the public might reasonably suspect has
p 179 9-3-2009
p180
occurred (see per Lord Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon
(1969) 1 QB 577 at 599, a judgment cited with approval by this court in R v
Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group
(1969) 122 CLR 546 at 553; In some circumstances repeated denials of prejudging might
5 well convey the impression of "protesting to much"...
ultimately right..
20
.
The notion that arbitrators in the Courts may rule on their opinions instead of the law as written
25 and stated in the legislation from which the charges are derived and then wash their hands of it
by stating to the accused to the effect of – you have the right to appeal if you don't like the orders
that I decide to burden you with – that is your right to do so – is not sufficient for the general
public, as not many would be able to, as an unrepresented person to be so inclined, and so just
“cop” it as most do, which appears to be relied upon by the courts.
30 Mr Francis James Colosimo here recognises that as with traffic infringements, demerit points,
toll fines and numerous other issues, including building permits, although wrongly applied to the
public, albeit by possible mistake or misperception, the pressures of daily life or the desire to put
wrong right does not always come to the fore in practise by the general public. But when
someone from the general public does so have their conscience moved, and has claim to
35 constitutional grounds, then this the Framers of the Constitution too considered and debated
this eventuality:-

40 Mr. KINGSTON: On a question of dry law, as to the legality or otherwise, the
constitutionality or otherwise, of the Federal Act or the State Act, I imagine that there
would not be the slightest difficulty in stating a case to which the judges could address
themselves, with perfect confidence of their being able to pronounce a judgment which
would satisfactorily deal with the point raised. I hope Mr. Glynn will confer with Mr.
45 Deakin, who has already directed the attention of the Committee to a matter of this sort. I
would, however, say that I agree with the objection which has been taken to the
amendment which is now before the Convention. It seems to me that if you assent to the
extension of the judicial power to all matters which the Federal Parliament may prescribe,
it is simply in another way giving to the Federal Parliament the absolute power of
50 arrogating to itself all the judicial powers it may wish, even to the extent of ousting State
p 180 9-3-2009
p181
legislation. I hope that my friend Mr. Glynn, under these circumstances, will not press the
amendment he has now moved, but I do trust that the principle to which he seeks to
give effect by his motion will be embodied in the Constitution, and will prove
acceptable to the Convention, and enable the Federal Parliament or State Parliaments
5 to obtain a declaration from the High Court of Australia on matters of public
concern, without all the routine, delay, and expense which are involved in litigation as
we generally know it.
Mr. HIGGINS: I feel strongly that it is most inexpedient to break in on the established
practice of the English law, and secure decisions on facts which have not arisen yet. Of
10 course, it is a matter that lawyers have experience of every day, that a judge does not give
that same attention, he cannot give that same attention, to a supposititious case as when be
feels the pressure of the consequences to a litigant before him. If he feels that the effect of
his decision will be ruin to this man or that man he will take the utmost pains in
considering his decision. But here is an attempt to allow this High Court, before cases have
15 arisen, to make a pronouncement upon the law that will be binding. I think the imagination
of judges, like that of other persons, is limited, and [start page 967] they are not able to put
before their minds all the complex circumstances which may arise and which they ought to
have in their minds when giving a decision. If there is one thing more than another
which is recognised in British jurisprudence it is that a judge never gives a decision
20 until the facts necessary for that decision have arisen. I think it is advisable that
private people should not be put to the expense of having important questions of
constitutional law decided out of their own pockets. But I feel sure that is not the way
to do it. If it is thought by the Convention or Federal Parliament that private persons
who raise important points of constitutional law ought to be reimbursed out of the
25 State coffers that is another matter. That is for Parliament to deal with. But with our
knowledge of how English jurisprudence has grown up, and has the confidence of the
whole empire, for as to allow judges the power of ruling on hypothetical cases would
be most injurious. I sympathise with the desire of the President to prevent people being
put to this expense. I hope we shall adhere to the clause, and not provide for the judges
30 giving decisions until the facts have arisen.
Authorities such as Smith v R 98 C.L.R. 163 [1957] A.L.R. 441 High Court of Australia 1957
(Folder 32) and Vallance v R 108 C.L.R. 56 [1963] A.L.R. 461 High Court of Australia, 1961
(Folder 26) Parker v R [1963] A.L.R. 524 High Court of Australia, 1963 (Folder 26) about
35 subjective and objective intentions and attitude, etc, are clearly also relevant.
Mr Francis James Colosimo submits, that with laws (legislation) now being enacted under the
name of “Queen of Australia” then all laws so enacted are constitutionally ULTRA VIRES and
so without legal force, (This applies also to Proclamations and writs.) for this also the
40 Proceedings are permanently stayed, and to so give time to allow the constitutional issues to be
sorted out by the Director of Public Prosecutions as to if this Court can invoke legal jurisdiction
and if there is any judicial officer of any Court in the Commonwealth of Australia who in fact is
qualified to hear the case, or that by their “Oath of alliance” to the LEGAL FICTION “Queen
of Australia” they have all disqualified themselves from being a judicial officer to hear and
45 determine matters.
Mr Francis James Colosimo submits, that the same applies to any lawyer seeking to be the
prosecutor in this case for the Director of Public Prosecutions. Those who did not make an
“Oath of alliance” to the LEGAL FICTION “Queen of Australia” still have the problem that
p 181 9-3-2009
p182
they are faced with a Court system that now purportedly (Sue v Hill) operates under a LEGAL
FICTION “Queen of Australia” and as such the conflict remains to exist.
MR FRANCIS JAMES COLOSIMO SUBMITS, THAT WITHOUT A GOVERNMENT

5 OR A CARE TAKING GOVERNMENT IN OFFICE THE COUNTRY GRINDS TO A
HOLD. Where there was no valid Federal Government (at least since November 2001 when Mr
G. H. Schorel-Hlavka began his legal quest to expose it all) and there neither being a State
Government, then neither was there any legal authority for Moorabool Shire Council in that
regard also (even if claiming to act under authority of the State executives) to pursue Mr Francis
10 James Colosimo regarding the purported charges. Without “citizenship” and that not a single
Member of Parliament, being it State or Federal, can be deemed validly “chosen”.
Mr Francis James Colosimo submits, that the Government of the day (State and/or Federal)
can only act within the legislative provisions provided for by the Parliament, and where there is
no Parliament then there can be no Government and neither any law enforcement such as the
15 Police. And again, no lawyers acting purportedly for the Government have any legal standing to
do so.
Mr Francis James Colosimo submits, that no appointment of any judge to the High Court of
Australia since 2001 is therefore valid as there was no legitimately elected government. Neither
20 are any other appointments made valid in law.
Mr Francis James Colosimo submits, that the Magistrate of the Magistrates' Court of Victoria
at Heidelberg upon submission by the Commonwealth Director of Public on 4 December 2002
(with consent of Mr G. H. Schorel-Hlavka) adjourned the matter to the High Court of Australia
25 as to “citizenship” and other constitutional issues. The Commonwealth Director of Public
Prosecutions however never presented the case to the High Court of Australia to seek
declarations to be made that the legislative provisions, writs and proclamation were INTRA
VIRES and as such they remain ULTRA VIRES. Therefore, the charges subsequently laid
against by the Crown officers all have their validity in question that unless and until the High
30 Court of Australia declares the Australian Citizenship Act 1948 to be INTRA VIRES it remains
ULTRA VIRES and so the Crown officers thereby lack the appropriate lawful qualifications for
their appointments, as is applicable to lawyers and judges, etc.
Mr Francis James Colosimo submits, that VCAT/court may reject the Prosecutor having
35 unilateral authority to pursue these proceedings in the manner it has done so far where (Federal)
legislative provisions provide that the State and Federal Attorney’s are to be notified in regard of
constitutional matters before the Court. This is an obligation to the Prosecutor seeking to invoke
the jurisdiction of this Court, and not an obligation upon Mr Francis James Colosimo and
neither upon this Court. The issue therefore is one of questionable authority of the Prosecutor to
40 act in these proceedings as is currently being done.
Mr Francis James Colosimo submits, that in view of the fact that the High Court of Australia
itself is on record to indicate that “citizenship” is not a known constitutional power, as further
outlined below in this ADDRESS TO THE COURT-TRIBUNAL Part 2, then as Latham J
45 stated; “If it is beyond power it is invalid ab initio.”.
Mr Francis James Colosimo submits, that any judicial officer who was a natural born and/or
naturalized person was and remains to be a British national with an alliance to the British Crown.
And where such judicial officer made an oath of alliance to the LEGAL FICTION “Queen of
50 Australia” then this judicial officer has a purported oath of alliance to two different monarchs
p 182 9-3-2009
p183
and cannot be deemed to be a acceptable judicial officer for purpose of making judicial
determinations.
Mr Francis James Colosimo submits, that as also further set out below, where any natural born
5 and/or naturalized person having made an oath of alliance to the LEGAL FICTION “Queen of
Australia”, then this would be an act of sedition.
Mr Francis James Colosimo submits, that because subsection 51(xix) of the Constitution
provided for “naturalization” of “aliens” to be granted “British nationality” then any notion by
10 the ULTRA VIRES Australian Citizenship Act 1948 legislation that having been granted
“Australian citizenship” this then is NULL AND VOID in that the were and remain to actually
have been granted to be made “British nationals”.
Mr Francis James Colosimo submits, that because the Victorian Constitution relied upon the
15 ULTRA VIRES Australian Citizenship Act 1948 for certain rights and so also for further
legislation needed to implement certain government functions and that the persons must require
at law to be an “Australian citizen” for to be and hold such lawfully appointed authorities, then
all such persons, being it police, judicial officers, Members of State parliament, etc, all having
ULTRA-VIRES “Australian citizenship” then the ULTRA VIRES legislation cannot be
20 enforced, and by this all are without legal right in their positions.
Mr Francis James Colosimo submits, that by the ruling in Sue v Hill, that British nationals
own alliance to a foreign Monarch cannot hold a seat in Parliament, then for this also all natural
born and naturalized persons who are in fact British nationals by this ruling are disqualified from
25 being a Member of Parliament.
Mr Francis James Colosimo submits, that therefore the legal power of any judicial officer
involved in this case to adjudicate is ULTRA VIRES, and if this judicial officer has made an oath
of alliance to the LEGAL FICTION “Queen of Australia”, then it would result that this Court
30 then constitutes itself to be a STAR CHAMBER COURT, referred to in the Imperial Acts
Application Act 1980 (Vic).
Mr Francis James Colosimo submits, that as the Framers of the Constitution so clearly stated,
legislative powers as to “citizenship” remains with the States and “Australian citizenship” as
35 such is AUTOMATICALLY obtained when a person obtains “State citizenship” and this not be
otherwise and cautioned against the said citizenship falling into the hands of Commonwealth
powers.
Mr Francis James Colosimo submits, that legislation enacted by any Parliament, where
40 persons failed to have Australian citizenship as derived from having State citizenship, then any
such legislation is and remains ULTRA VIRES, and any legal enforcement by the Court of such
legislation that is ULTRA VIRES are NULL AND VOID and so also without legal force.
Mr Francis James Colosimo submits, that any lawyer acting for the Commonwealth who made
45 an oath of alliance to the LEGAL FICTION “Queen of Australia” is not a person who can
lawfully conduct litigation in the Courts and for this cannot be accepted to proceed in this case
also. This also as every lawyer is required to be an “Australian citizen” which can only be
derived from being a State citizen, and this the states have not provided for.
p 183 9-3-2009
p184
Mr Francis James Colosimo submits, that this court-tribunal has no jurisdiction to “Dismiss
the charges” because this would require to invoke legal jurisdiction and this is being contested
to exist by Mr Francis James Colosimo for numerous reasons.
5 Mr Francis James Colosimo submits, that from the moment Mr Francis James Colosimo
made known his objection, being it by way of oral objection, written objection in legal
proceedings and/or otherwise then such constitutional based objections for all purposes have
caused all items subject to such constitutional based objection to be ULTRA VIRES and without
legal force, and purported aborting of the charges cannot affect the constitutional based
10 objections and their application in any way whatsoever.
Mr Francis James Colosimo submits, that a “Stay of proceedings regarding the conviction”
would in effect not be detrimental to either party and that it is for the High Court of Australia to
determine constitutional issues first.
15
Mr Francis James Colosimo submits, that for example, if the High Court of Australia were to
declare the Australian Citizenship Act 1948 to be ULTRA VIRES for so far as it were to
define/declare “citizenship” then not only would this vindicate Mr Francis James Colosimo
position and all and any purported “Australian citizenship” granted since enacting this Act, then
20 are to be deemed to be “British nationals”, as intended by the Framers of the Constitution, but it
also would mean that for that purpose not a single elector could be obligated to vote, in that if the
definition/declaration of “Australian citizenship” is unconstitutional then any legislation based
upon it also is and remains without legal force.
.
Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
30
Mr Francis James Colosimo submits, that no (Australian) judge can adjudicate in his own
cause, and as such where the issue of “citizenship” and “oath of alliance” made to the LEGAL
FICTION “Queen of Australia” directly relates to each and every judicial officer within the
Commonwealth of Australia, including every judge of the High Court of Australia, then Mr
35 Francis James Colosimo views this constitutional issues can only be adjudicated upon by the
Privy Council. This as judges of the High Court of Australia by this face having committed
sedition to swear an oath of alliance to the LEGAL FICTION “Queen of Australia” would by
this have a personal interest, and as such are perceived to be of a bias in any judicial decision.
Bias, as their conflict with the repercussions upon themselves of their having to make decisions
40 in regard of the issue of “citizenship” being ULTRA-VIRES and the true meaning of Subsection
51(xix) of the Constitution.
Mr Francis James Colosimo submits, that the issue is not if the Court/VCAT is invested with
jurisdiction, but rather if either could in this case INVOKE legal jurisdiction. As Mr Francis
45 James Colosimo understand it, generally the Supreme Court of Victoria will not accept any
litigation to be conducted unless the party instituting proceedings can show that the Court can
INVOKE legal jurisdiction.
Mr Francis James Colosimo submits, that he has in an elaborate way made constitutional
50 based objections against the validity of the Australian Citizenship Act 1948, to declare/define
p 184 9-3-2009
p185
citizenship as he submits, “citizenship” is a State legislative power. Further more, he

submits, that constitutionally ss51(xix) provides only for the “naturalization” of “aliens” to
become “British nationals”, which when residing in the Commonwealth of Australia are
referred to as Australians as much as are “aliens” residing in the Commonwealth of
5 Australia and as such where the Attorney-General of the State of Victoria made known
there is no State citizenship then Mr Francis James Colosimo submits, there can be no
Australian citizenship either. In any event, Mr Francis James Colosimo submits, that the
Racial Discrimination Act (Cth) enacted within subsection 51(xxvi) is in fact
unconstitutional but by it causes a disability against all Australians and for this not a single
10 Australia has franchise as this is in the citizenship which is removed by the effect of this
Act.
Mr Francis James Colosimo submits, that a County Court of Victoria invested with federal
jurisdiction is not the “County Court of Victoria” in hearing federal matters but in fact is the
15 “County Court of Victoria invested with federal jurisdiction” and by this State Court legal
procedures remain applicable and cannot be disturbed by Commonwealth legislation neither any
purported conduct dictated by the Commonwealth of Australia in regard of a Section 78B
NOTICE OF CONSTITUTIONAL MATTER. The Court, once faced with a federal
constitutional issue then is deemed to be a State Court exercising federal jurisdiction, but does
20 not itself become a Federal Court and neither does the judicial officer become a Federal judicial
officer. Proceedings must be determined within the legal procedures normally applicable to State
Courts. Unless VCAT is invested with federal jurisdiction, which I understand it doesn’t, it has
no position to deal with the proceedings which involved federal issues, including but not limited
to constitutional issues.
25
Mr Francis James Colosimo submits, that VCAT lacks federal jurisdiction and then a Court of
law that can invoke federal jurisdiction is to determine the jurisdiction issue while this Tribunal
is required and duty bound to decide first and foremost if it can invoke legal jurisdiction from
such decision of a court of law, and Mr Francis James Colosimo opposes this also can
30 eventuate because of citizenship and other issues citing the fact that the magistrate on 4
December 2002, upon submission of the Prosecutor (in that case Mr. G. H Schorel-Hlavka's)
adjourned the charge then in regard of the 2001 election for the High Court of Australia, so as to
first deal with the various constitutional based objections raised and that Mr G. H. Schorel-
Hlavka (in that case) consented to this.
35
Mr Francis James Colosimo submits, that it is not his obligation to disprove legal jurisdiction
or that the Court cannot invoke legal jurisdiction rather it is up to the Prosecutor to prove this and
to overcome each and every objection Mr Francis James Colosimo has made, and in support of
this Mr G. H. Schorel-Hlavka has provided ample authorities, both within the Australian legal
40 jurisdiction as well as international authorities.
The question of using international Authorities could hardly placed in question, where the
High Court of Australia itself is on record as to use them time and again. A clear example is the
variation of usage of international authorities such as in Ex parte WALSH AND JOHNSON; IN
RE YATES (1925) 37 CLR 36 High Court of Australia. Which used Canadian, United States,
45 British and other Authorities. Likewise so other cases cited below.
ROBTELMES v. BRENAN (1906) 4 CLR 395

Deportation
COURT High Court of Australia
p 185 9-3-2009
p186
Griffith C.J.(1), Barton(2) and O'Connor(3) JJ.

HRNG Brisbane, 1906, October 1, 2. #DATE 2:10:1906
JUDGE1
The Attorney-General for Canada v. Cain and Gilhula 22 TLR 757
5 Fong Yue Ting v. United States 149 US 698
Chae Chan Ping v. United States 130 US 581
Nishimura Ekiu v. United States 142 US 651
Brown v. Lizars 2 CLR 837
Campbell v. Hall Cowp 204
10 Hodge v. The Queen 9 App Cas 117
In re Adam 1 Moo PCC 460
MacLeod v. Attorney-General for New South Wales (1891) AC 455
Li Sing v. United States 180 US 486
Musgrove v. Chun Teeong Toy (1891) AC 272
15 Powell v. Apollo Candle Co. 10 App Cas 282
D'Emden v. Pedder 1 CLR 91
Ex parte WALSH AND JOHNSON; IN RE YATES (1925) 37 CLR 36

Constitutional Law - High Court
20 COURT High Court of Australia
Knox C.J.(1), Isaacs(2), Higgins(3), Rich(4) and Starke(5) JJ.
HRNG Sydney, 1925, November 30; December 1-4, 7-9, 11, 18. #DATE 18:12:1925
JUDGE1
Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1914) AC
25 237; 17 CLR 644
R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518
Potter v. Minahan (1908) 7 CLR 277
Green v. Lord Penzance (1881) 6 App Cas 657
Leonard Watson's Case (1839) 9 A & E 731
30 Wood's Case (1771) 3 Wils KB 172
Darnel's Case (1672) 3 St Tr 93
Cox v. Hakes (1890) 15 App Cas 506
Secretary of State v. O'Brien (1923) AC 603
Barnardo v. Ford (1892) AC 326
35 United States of America v. Gaynor (1905) AC 128
Lloyd v. Wallach (1915) 20 CLR 299
Attorney-General for Canada v. Cain and Gihula (1906) AC 542
Hodge v. The Queen (1883) 9 App Cas 117
Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129
40 Robtelmes v. Brenan (1906) 4 CLR 359
The Ironsides (1862) 31 LJ PM & A 129
R. v. Burah (1878) 3 App Cas 889
Colonial Sugar Refining Co. v. Irving (1905) AC 369
R. v. Kidman (1915) 20 CLR 425
45 Meyer v. Poynton (1920) 27 CLR 436
W. & A. McArthur Ltd. v. Queensland (1920) 28 CLR 530
Drummond v. Collins (1915) AC 1011
Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd.
(1924) 34 CLR 482
p 186 9-3-2009
p187
Stradling v. Morgan (1559) 1 Plowd 199

In re Viscountess Rhondda's Claim (1922) 2 AC 339
Jefferys v. Boosey (1854) 4 HLC 815
Ex parte Blain (1879) 12 Ch D 522
5 Cooke v. Vogeler (1901) AC 102
Jumbunna Coal Mine v. Victorian Coal Miners' Association (1907-08) 6 CLR 309
Irving v. Nishimura (1907) 5 CLR 233
Barton v. Taylor (1886) 11 App Cas 197
Mahler v. Eby (1924) 264 US 32
10 Macleod v. Attorney-General for New South Wales (1891) AC 455
Low Wah Suey v. Backus (1912) 225 US 460
Cotterill v. Lempriere (1890) 24 QBD 634
R. v. Stocker (1696) 5 Mod 137
Davy v. Baker (1769) 4 Burr 2471
15 R. v. Morley (1827) 1 Y & J 221
Cassel v. Inglis (1916) 2 Ch 211
Welsbach Light Co. of Australasia v. Commonwealth (1916) 22 CLR 268
Attorney-General of New South Wales v. Collector of Customs for New South
Wales (1908) 5 CLR 818
20 Attorney-General of British Columbia v. Attorney-General of Canada (No. 2)
(1924) AC 222
Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36
Attorney-General v. Vigor (1803) 8 Ves 256
25 In re Ackerley; Chapman v. Andrew (1913) 1 Ch 510
In re Sharland; Rew v. Wippell (1899) 2 Ch 536
Pankhurst v. Kiernan (1917) 24 CLR 120
Toronto Electric Commissioners v. Snider (1925) AC 396
Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908-09) 8 CLR 330
30 Citizens Insurance Co. of Canada v. Parsons (1881) 7 App Cas 96
Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1914) AC 237
McCulloch v. Maryland (1819) 4 Wheat 316
Kielley v. Carson (1841-4) 4 Moo PCC 63
Fenton v. Hampton (1858) 11 Moo PCC 347
35 Doyle v. Falconer (1866) LR 1 PC 328
Willis and Christie v. Perry (1912) 13 CLR 592
G. G. Crespin & Son v. Colac Co-operative Farmers Ltd. (1916) 21 CLR 205
Reetz v. Michigan (1903) 188 US 505
Vacher & Sons Ltd. v. London Society of Compositors (1913) AC 107
40 Lorenzo v. Carey (1921) 29 CLR 243
Gaines v. Fuentes (1875) 92 US 10
Railroad Co. v. Mississippi (1880) 102 US 135
Walker v. Baird (1892) AC 491
Johnstone v. Pedlar (1921) 2 AC 262
45 R. v. Halliday; Ex parte Zadig (1917) AC 260
Farey v. Burvett (1916) 21 CLR 433
Ferrando v. Pearce (1918) 25 CLR 241
Jerger v. Pearce (1920) 28 CLR 588
Fong Yue Ting v. United States (1893) 149 US 698
50 Ng Fung Ho v. White (1922) 259 US 276
p 187 9-3-2009
p188
Japanese Immigrant Case (1903) 189 US 86

United States v. Ju Toy (1905) 198 US 253
In re Board of Commerce Act 1919 (1922) 1 AC 191
5 POLITES v. THE COMMONWEALTH - KANDILIOTES v. THE COMMONWEALTH

(1945) 70 CLR 60
Constitutional Law
Latham C.J.(1), Rich(2), Starke(3), Dixon(4), McTiernan(5) and Williams(6) JJ.
10 HRNG Melbourne, 1945, March 8, 9; April 10. #DATE 10:4:1945
JUDGE1
Bloxam v. Favre (1883) 8 PD 101
Croft v. Dunphy (1933) AC 156
R. v. Burah (1878) 3 App Cas 889
15 Hodge v. The Queen (1883) 9 App Cas 117
United States v. Ferreira (1851) 54 US 40 (14 Law Ed 42)
Botiller v. Dominguez (1889) 130 US 238 (32 Law Ed 926)
Hijo v. United States (1904) 194 US 315 (48 Law Ed 994)
Farey v. Burvett (1916) 21 CLR 433
20 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (Engineers'
Case) (1920) 28 CLR 153
Compania Naviera Vascongado v. S.S. "Cristina" (1938) AC 485
Chung Chi Cheung v. The King (1939) AC 160
Bloxam v. Favre (1884) 9 PD 130
25 Colquhoun v. Brooks (1888) 21 QBD 52
R. v. 30th Battalion Middlesex Regiment; Ex parte Freyberger (1917) 2 KB 129
Mortensen v. Peters (1906) 14 SLT 227
Barcelo v. Electrolytic Zinc Co. of A/asia Ltd. (1932) 48 CLR 391
Reid v. Sinderberry (1944) 68 CLR 504
30
High Court of Australia
POTTER v. MINAHAN (1908) 7 CLR 277

Prohibited immigrant
35 Griffith C.J.(1), Barton(2), O'Connor(3), Isaacs(4) and Higgins(5) JJ.
HRNG Melbourne, 1908, September 16, 17, 18, 21; October 8. #DATE 8:10:1908
JUDGE1
Chia Gee v. Martin; Chow Quin v. Martin 3 CLR 649
Attorney-General for the Commonwealth v. Ah Sheung 4 CLR 949
40 Whicker v. Hume 7 HLC 124
In re Buchsbaum 141 Fed Rep 221
Yeap Cheah Neo v. Ong Cheng Neo LR 6 PC 381
Udny v. Udny LR 1 HL Sc 441
45 Moorhouse v. Lord 10 HLC 272
Whicker v. Hume 7 HLC 159
Aikman v. Aikman 3 Macq 877
Huntly (Marchioness) v. Gaskell (1906) AC 56
p 188 9-3-2009
p189
Winans v. The Attorney-General (1904) AC 287

Ah Sheung v. Lindberg (1906) VLR 323;
Whicker v. Hume 7 HLC 123
Davies v. The State of Western Australia 2 CLR 29
5 Arthur v. Bokenham 11 Mod 150
Harbert's Case 3 Rep 12a
United States v. Fisher 2 Cranch 390
In re Stepney Election Petition; Isaacson v Durant 17 QBD 54
Ah Yin v. Christie 4 CLR 1428
10 Chapman v. Morton 11 M & W 534
Caine v. Coulton 1 H & C 764
Winans v. Attorney-General (1904) AC 287
The Hormony 2 Rob A 322
In re Tootal's Trusts 23 Ch D 532
15 Abd-ul-Messih v. Farra 13 App Cas 431
The Indian Chief 3 Rob A 29
Maltass v. Maltass 1 Rob E 67
Re Steer 3 H & N 599
Attorney-General v. Pottinger 6 H & N 747
20 Doucet v. Geoghegan 9 Ch D 441
Churchwardens &c. of Wellington v. Churchwardens &c. of Whitchurch 32 LJMC
189
R. v. Stapleton 1 El & B 766
West Ham Union v. Cardiff Union (1895) 1 QB 766
25 Calvin's Case 2 St Tr 559
Rex v. Inhabitants of St. Nicholas 2 B & C 889
United States v. Wong Kim Ark 169 US 649
In re Look Tin Sing 21 Fed Rep 905
In re Yung Sing Hin 36 Fed Rep 437
30
Mr Francis James Colosimo submits, that the statement “It would be beyond the scope of the
Constitution to do that.” of the quotation;
Dr. QUICK.-
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. We might be
citizens of a city, citizens of a colony, or citizens of a Commonwealth, but we would
40 still be, subjects of the Queen.
in itself makes clear that any decision of the High Court of Australia itself is and remain ULTRA
VIRES, where it offends its constitutional powers to declare laws INTRA VIRES beyond the
provisions of the Constitution. Such as to that Heather Hill was some kind of “alien”, not
45 entitled to hold a seat in the Senate. This, as the High Court of Australia cannot declare a British
subject an “alien” or not entitled to constitutional rights as this would be beyond the scope of
judicial powers provided to the High Court of Australia under the Constitution. Where this
judgment affected other British subjects, this is then a major disaster at it's making and now at
hand in this matter before the Court.
50 Mr Francis James Colosimo also has relied upon the decision of the High Court of Australia in
p 189 9-3-2009
p190
Neil v Nott (1994) 68 ALJR 509 at 510 (High Court) (See folder 01 on the CD)
"A frequent consequence of self representation is that the court must assume the burden of
5 endeavouring to ascertain the rights of the parties which are obfuscated by their own
advocacy"
This does not mean that the Court is obligated to conduct the case for the unrepresented
Defendant but is obligated to ensure that the proper legal processes are followed in
proceedings before the Court. In law, the defendant is unrepresented and as such this duty
10 applies.
.
When this the Court/VCAT, faces an OBJECTION TO JURISDICTION in that it cannot
invoke jurisdiction because of certain obstacles which have to be dealt with first, then this the
Court/VCAT cannot simply ignore those matters.
15
Mr Francis James Colosimo submits, that the Prosecution is required to prove beyond
reasonable doubt, considering “the WHOLE of the CIRCUMSTANCES” within which Mr
Francis James Colosimo existed when Mr Francis James Colosimo was accused, as well as all
and any other issues raised by Mr Francis James Colosimo in his defense, detail of which he
20 has sought to bring to the courts as she has tried to defend. That specific crimes have been
committed before the (so-called) offender can be convicted and held “guilty” at the expense of
higher Imperial and/or common law being denied is required to be shown. In this regard
reference is made to the Crimes Act 1914, s 24F (1)(b) where higher law is recognised, and, the
act done in good faith, is NOT unlawful.
25 .
(Quote) “.. to point out in good faith errors or defects in the government, the constitution,
the legislation or administration of justice of or in the Commonwealth , a State, (or) a
Territory … with a view to the reformation of those errors or defects.”
Mr Francis James Colosimo also notes that according to the Crimes Act 1914, s 24F (2) (a) –
30 (e) he has not infringed any of those provisions to be lawfully counted as “NOT acting in good
faith”.
.
Mr Francis James Colosimo submits, that once he made constitutional based objections then
from that moment the legislation, part legislation, proclamation and/or writ(s) were subject to be
35 ULTRA VIRES and as such remain to be so unless and until a competent Court decides
otherwise by declaring the Australian Citizenship Act 1948 to be ULTRA VIRES or INTRA
VIRES and that Mr Francis James Colosimo himself has no position to withdraw such
objections as to do so would allow anyone to manipulate constitutional based objections for
temporary purposes.
40
The issue before the Court/Tribunal first of all is to establish through a Court of law that can
invoke federal jurisdiction if it could invoke legal jurisdiction, and Mr Francis James Colosimo
submits, his conclusion that in the circumstances this is not possible.
45 Unless and until the Prosecution can satisfy that this court can invoke legal jurisdiction the
matter simply remains unresolved in that regard.
The decision to prosecute any person and cause upon that person a criminal conviction
(contempt), if the Prosecution were to be successful is not to be taken too lightly. This, as it
marks the person for ever when convicted. In the current circumstances the Court should be
50 deeply troubled by what has been placed before this Court and especially since it appears to have
p 190 9-3-2009
p191
been taking place during previous hearings and what appears to have been a gross lack of
appropriate response by the relevant authorities in regard of Mr Francis James Colosimo's
objections made.
Valuable court/tribunal time appears to have been wasted to pursue charges where this time
5 could have been rather better used to seek to address the issues of the objections and to at least
seek to ensure that any thing subject to being ULTRA VIRES was then as a matter of urgency
placed before the appropriate Court for its declaration.
Mr Francis James Colosimo submits, that any judicial officer who is pursuing to adjudicate in
10 any Court/Tribunal seeking to exercise federal jurisdiction owe it not only to the general
community at large or his/her oath of office but also to himself/herself personally to ensure that
he/she acts in accordance with constitutional requirements, being it expressed specifically or
otherwise embedded. It is hereby also that to ignore the “citizenship issue” and by this for
example allow the Federal Government to deport children born within the Commonwealth of
15 Australia as Stateless, regardless that those children are in fact the same nationals as our own
children as per the debates of the Framers of the Constitution, then such judicial officers are
merely seeking to be Pontius Pilates, but then cannot clear himself/herself of the disgraceful deed
caused upon so many innocent children as to be denied their birth rights as provided for within
the very Constitution this judicial officer pretends to seek to enforce, yet ignores to declare the
20 (constitutional) law as it is.
ultimately right..
35
Again;
40 consequences, it is the paramount and sworn duty of this court to declare the law
truly...."
Mr G. H. Schorel-Hlavka then as the self represented Defendant in the matters clearly had legal
status to present his case before the County Court of Victoria and did so successfully. It would be
45 absurd then to now argue, that having been done and successfully accepted, that those very same
successful arguments on the same constitutional issues are now somehow to be of no value.
Particularly where he succeeded in his appeals. And where he is a recognised Grandmaster
“constitutionalist” and Author of many books about certain constitutional matters, and the fact
that he succeeded on those issues in the County Court of Victoria, the very same Court this
50 Defendant now is appearing before, then these very same arguments and points of law should be
p 191 9-3-2009
p192
accepted as his material was presented within his legal status as the then Defendant, and can so
now be used in current litigation as can any other previous case law successfully having been
dealt with in a court of law and so be referred to in a court of law..
5 Because a person happens to study and obtain a law degree itself does not make a person to be
competent or to be versed to be a “constitutionalist” and argue as such. In fact many lawyers
may never have studied or have had even an inclination to have studied constitutional issues nor
even ever have litigated a constitutional issue.
Many a person call themselves to be a “constitutionalist” because they happen to write about
10 constitutional matters but only to find they would not have had a clue as to what the real
intentions of the Framers of the Constitution were about. Simply, because inadvertently the High
Court of Australia in 1904 denied the usage of the “Hansard” records of the Constitution
Convention), and this ban was not lifted until 1992 by the High Court of Australia. As such,
15 those students who previous to the lift of the ban of the debates in legal studies and who have
been educated disregarding the Hansard records now are found to be involved and consider to
argue something that by hindsight might be by them to be deemed sheer and utter nonsense. This
due to not only not having considered it necessary to study and read the (Official Record of the
Debates of the National Australasian Convention) Convention Debates of the Framers of the
20 Constitution, those debates having been banned, but worse, since 1904, they have been taught to
and to incorporate into their knowledge and use at law and to consider as correct decisions
derived at which did not involve the original interpretation of the Framers of the Constitution and
on now being able to again include and consider the Debates find “a dogs' breakfast” before then.
Then wishing the law to stay as was learnt and wishing to have past decisions be relied upon,
25 even though now it can be plainly seen and argued referring to the Debates (Official Record of
the Debates of the National Australasian Convention), that this is not necessarily correct at
law when now the Debates may again be used at law in the Courts. The great possible “mischief”
itself referred to in the Constitution and which was to be avoided is in fact the very situation we
now find ourselves in and which must be corrected.
30 The issue of “Australian citizenship” is a clear example and must be set right again.
Shooting the messenger, and that which Mr G. H. Schorel-Hlavka in his books clearly shows
what has been unconstitutionally been put in place albeit as ULTRA-VIRES Acts/laws is not
going to serve JUSTICE, regardless of who presents and in the end exposes to and into the
Courts that which must be considered as to what is applicable not only at law but even more so
35 Constitutionally at law under which law all other law reside as accepted by the people for the
people at the union of the Federation of the Commonwealth.
If a presiding judge/member of a tribunal has no “Australian citizenship” as is constitutionally

applicable then His Honour has no legal position to adjudicate in these matters. Likewise, no
40 other judicial officer, being of any other Court within Australia, including the High Court of
Australia, and so the matter can only be adjudicated by the Privy Council or another court, as
may be seen fit as to not be biased in the matter.
While the Commonwealth of Australia may have abolished appeals to the Privy Council but it
had no constitutional powers to do so in regard of State legal processes, as that is an entirely
45 different legal jurisdiction, and as such does not affect this case before the Court. The Framers of
the Constitution contemplated that the Commonwealth of Australia may abolish appeals to the
Privy Council and indicated that the States would still continue to retain such a right and such
right to appeal never having been revoked from the States then still applies.
p 192 9-3-2009
p193
Mr Francis James Colosimo has all along pursued that there were constitutional issues on foot
but basically found the authorities to ignore this in the hope of the constitutional issues raised
would disappear from their jurisdiction regardless no jurisdiction was invoked.
5 Mr Francis James Colosimo submits that this Court should not tolerate that the right of any
person to not only object on constitutional grounds but having the benefits of such objections
made subject to undue legal sanctions.
"Where rights secured by the Constitution are involved, there can be no rule
10 making or legislation which would abrogate them." - Miranda vs. Arizona,
384 US 436, 491
and ...
15 "The claim and exercise of a constitutional Right cannot be converted into a

crime." - Miller vs. U.S., 230 F. 486, 489
and ...
20 "There can be no sanction or penalty imposed upon one because of this

exercise of constitutional Rights." - Snerer vs. Cullen, 481 F. 946
We then have also
25 STREET v. QUEENSLAND BAR ASSOCIATION (1989) 168 CLR 461 F.C. 89/048
39. In my opinion the amended Rules also subject Mr Street to a disability or
discrimination which would not be equally applicable to him if he were a
resident of Queensland. If Mr Street were a Queensland resident, he would not
be refused admission because he wished to practise principally in the State
30 where he resided. However, the practical impact on him of the amended Rules
is that, if he wishes to practise principally in Queensland, he must abandon
his present New South Wales residence and reside in Queensland. Although in
form the amended Rules require Mr Street as a hypothetical Queensland resident
and as an actual New South Wales resident to practise principally in
35 Queensland, the factual impact of the amended Rules is that Mr Street as a
resident of New South Wales can only comply with them by abandoning his New
South Wales residence. Hence, the factual effect of the amended Rules is that
he must abandon his New South Wales residence. As a hypothetical Queensland
resident, he would not be required to abandon his residence to practise
40 principally in the State of his residence.
What is overlooked is that if by Victorian purported Constitution of 12975 a person must have
“Australian citizenship” before being able to be admitted to the Bar of the supreme court of
Victoria, where as another State may merely require that a person has “citizenship” within its
45 true constitutional meanings, then the problem would be that a person from another State could
practice in Victoria without holding the purported “Australian citizenship” where as a person
residing in Victoria cannot.
Also the laws that may be applicable in one state may not be applicable as such in another State
and lawyers are supposed to be OFFICERS OF THE COURT not to upholds legislative
50 provisions of another State but the State in which they appear at the Bar table.
p 193 9-3-2009
p194
When one seeks to understand the true meaning of a constitutional provision, one must first of all
explore what was originally intended with the section and what amendments were made in the
process to arrive at the final Section as now existing!
5 Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)

It is necessary, in construing an act which alters the law, to inquire what was the state of the
law before the alteration was made, what was the mischief intended to be remedied, and what
was the nature of the remedy provided.
10 Mr Francis James Colosimo submits that this Court is not fulfilling the criteria of being
independent, due to its business association of which the usage of the ABN number of the
Government is also an example its lacks to be independent and at the least appears or is
perceived to be biased.
15 While in 2005 the British Parliament provided for a repeal of various acts, as referred to in the
document LAW COMMISSION, STATUTE LAW REVISION, Criminal Law, Repeal
Proposals, January 2005, such as the Sale of Offices Act 1551 & 1809 it is important to note that
the legislation was part of Australian (so also State) laws and remained in force as such. (The
document is included in Folder 41 on the CD as CRIMINAL_REPEALS.doc)
20
A repeal of legislation itself does not diminish the right of any person to rely upon the legislation
unless and until subsequently to the repeal, the said repealed legislation is invoked that then
extinguish the rights altogether.
25 Mr Francis James Colosimo submits that while for taxation purposes the Victorian
Government may have elected to give a common ABN number to the Courts as well as to
Government Department, such as the Department of Justice within which the Prosecutor operates
for the Director of Public Prosecutions, nevertheless, as Mr G. H. Schorel-Hlavka also argued
in his 19 July 2006 ADDRESS TO THE COURT (Of which a copy is filed as part of Mr G. H.
30 Schorel-Hlavkas Affidavit) for his successful appeals on 19 July 2006 it caused a bias and/or
perceived bias.
Constitutionally, the Commonwealth of Australia has no legislative powers to interfere with the
manner in which a State operates. Neither could the Commonwealth of Australia have demanded
an ABN file number to be created for a Court, as a State Court is beyond Commonwealth
35 legislative powers. Neither could it be deemed that the State was obligated to join what should be
deemed independent Courts with Government Departments as such ignoring the judicial
independents. As Mr G. H. Schorel-Hlavka, so well set out in his material, the British
parliament made clear it could not create an ABN number for its to be created Supreme Court,
which was linked to a Government Department, as it may undermine the judicial freedom or be
40 seen as to jeopardise this.
For example, it might not be for Mr Francis James Colosimo to dictate what the Government
can or cannot do in regard of taxation issues, but Mr Francis James Colosimo does have every
right to complain where Mr Francis James Colosimo takes the position that certain conduct,
such as the usage of an ABN number may appear to turn a Court into some business empire
45 along with State legislation applying penalties to ULTRA-VIRES laws and as such may or
likely be seen as to destroy its judicial independence.
.
Selection of repeal candidates
6. Candidates for repeal are selected on the basis that they are no longer of practical
p 194 9-3-2009
p195
utility. Usually this is because they no longer have any legal effect on technical grounds -
because they are spent, unnecessary or obsolete. But sometimes they are selected
because, although they strictly speaking do continue to have legal effect, the purposes for
H\Wrd\Sndrs2\criminal repeals
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3
which they were enacted either no longer exist or are nowadays being met by some other
means.
7. Provisions commonly repealed by Statute Law (Repeals) Acts include the following-
10 (a) references to bodies, organisations, etc. that have been dissolved or wound up
or which have otherwise ceased to serve any purpose;
(b) references to issues that are no longer relevant as a result of changes in social
or economic conditions (e.g. legislation about tithes or tin mines);
(c) references to Acts that have been superseded by more modern (or EU)
15 legislation or by international Convention;
(d) references to statutory provisions (i.e. sections, schedules, orders, etc.) that
have been repealed;
(e) repealing provisions e.g. “Section 33 is repealed/shall cease to have effect”;
(f) commencement provisions once the whole of an Act is in force;
20 (g) transitional or savings provisions that are spent;
(h) provisions that are self-evidently spent - e.g. a one-off statutory obligation to do
something becomes spent once the required act has duly been done;
(i) powers that have never been exercised over a period of many years or where
any previous exercise is now spent.
25
General savings
8. Much statute law revision is possible because of the general savings provisions of
section 16(1) of the Interpretation Act 1978. This provides that where an Act repeals an
enactment, the repeal does not (unless the contrary intention appears) -
30 “(a) revive anything not in force or existing at the time at which the repeal
takes effect;
(b) affect the previous operation of the enactment repealed or anything
duly done or suffered under that enactment;
(c) affect any right, privilege, obligation or liability acquired, accrued or
35 incurred under that enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any
offence committed against that enactment;
(e) affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
40 punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued
or enforced, and any such penalty, forfeiture or punishment may be imposed, as if
the repealing Act had not been passed”.
45 Last printed 09/06/05 12:32
Gradual obsolescence
9. The obsolescence of statutes tends to be a gradual process. Usually there is no
single identifiable event that makes a statute obsolete. The Statute Law (Repeals) Act 2004
50 contained several examples of legislation being overtaken by social and economic changes.
p 195 9-3-2009
p196
A scheme to provide farming work for ex-servicemen after the First World War had long
fallen into disuse. The policy of maximising cheap food production after the Second World
War had been overtaken by new farming methods and the influence of the Common
Agricultural Policy. Victorian powers for the Metropolitan Police to license shoeblacks and
5 commissionaires had become as irrelevant as the offence of fraudulently impersonating a
shoeblack or commissionaire. And an 1840s Act to sanction lotteries to help struggling
artists sell their work had become superseded by the modern law on lotteries.
10. Even within individual statutes, the obsolescence tends to be gradual. Some
provisions fade away more quickly than others. These include commencement and
10 transitory provisions and ‘pump-priming’ provisions (e.g. initial funding and initial
appointments to a Committee) to implement the new legislation. Next to go may be
ordermaking powers that are no longer needed. Then the Committee established by the Act
no longer meets and can be abolished. However, other provisions may be unrepealable for
generations, particularly if they confer pensions rights or confer security of tenure or
15 employment rights. Other provisions may be virtually unrepealable ever. Much of English
property law relies on medieval statutes such as Quia Emptores (1290) which is regarded
as
one of the pillars of the law of real property. This last example usefully shows that just
because a statute is ancient it is not necessarily obsolete.
20
Again;
However, other provisions may be unrepealable for generations, particularly if they confer
pensions rights or confer security of tenure or employment rights. Other provisions may be
virtually unrepealable ever. Much of English property law relies on medieval statutes such
25 as Quia Emptores (1290) which is regarded as one of the pillars of the law of real property.
This last example usefully shows that just because a statute is ancient it is not necessarily
obsolete.
And then also

30 Help from consultees
11. Sometimes it is impossible to tell whether a provision is repealable without factual
information that is not readily ascertainable without ‘inside’ knowledge of a Department or
other organisation. Examples of this include savings or transitional provisions which are
there to preserve the status quo until an office-holder ceases to hold office or until
35 repayment of a loan has been made. In cases like these the repeal notes drafted by the Law
Commissions often invite the organisation being consulted to supply the necessary
information. Any help that can be given to fill in the gaps is much appreciated.
Mr Francis James Colosimo submits that British law being part of law of the States, then the
40 Sale of Offices Act 1551 & 1809 very much is and remains applicable in the State of Victoria,
and as such is a relevant issue before this Court.
While the British parliament may have repealed the Act in 2005 that was for the United Kingdom
only and cannot have any effect as to its application to the State of Victoria or the
Commonwealth of Australia Constitution Act 1900 (UK) or not, as for this, the British
45 Parliament has no powers to amend anything in the Constitution pertaining to the
Commonwealth of Australia, as this can only be altered by the people by way of Section 128
Referendum, as it is an EMBEDDED provision into the Constitution.
.
Statute Law (Repeals) Bill
p 196 9-3-2009
p197
3. Implementation of the Commissions’ statute law revision proposals is by means of

special Statute Law (Repeals) Bills. 17 such Bills have been enacted since 1965 repealing
more than 2000 whole Acts and achieving partial repeals in thousands of others. Broadly
speaking the remit of a Statute Law (Repeals) Bill extends to any enactment passed at
5 Westminster. Accordingly it is capable of repealing obsolete statutory text throughout the
United Kingdom (i.e. England, Wales, Scotland and Northern Ireland) as well as extending
where appropriate to the Isle of Man.
This indicates that the repeal was only intended to apply to

10 .
“throughout the United Kingdom (i.e. England, Wales, Scotland and Northern Ireland) as
well as extending where appropriate to the Isle of Man.”
Not at all to the political Union the Commonwealth of Australia and/or the State of Victoria.
15 Hence the repeal cannot affect for this the basis upon which the Commonwealth of Australia
Constitution Act 1900 (UK) was based and neither affect the State of Victoria embedded
provisions.
CRIMINAL LAW REPEAL PROPOSALS

20 ___________________________________________________________________
Reference Extent of repeal or revocation
___________________________________________________________________
(1351) 25 Edw.3 Stat.5 c.4 The whole Act.
(1354) 28 Edw.3 c.3 The whole Act.
25 (1368) 42 Edw.3 c.3 The whole Act.
___________________________________________________________________
Introduction
1. The three Acts proposed for repeal in this note were passed in the mid-14th
century to safeguard an individual’s personal and property rights from procedural
30 abuses. This was achieved by limiting the judicial powers of the King’s Council in
determining criminal proceedings. These Acts have long ceased to have any
practical utility. Moreover, the rights and freedoms guaranteed under the European
Convention on Human Rights and now incorporated into UK domestic law by the
Human Rights Act 1998 mean that these Acts are new entirely unnecessary.
35 Background
2. The King’s Council (as successor to the Curia Regis) from earliest times took
part in the administration of justice of England1. Viewed with great suspicion by
Parliament and by the common law courts, the jurisdiction of the Council was
considerable. When sitting in its judicial capacity, the Council had its sittings in the
40 ‘Starred Chamber’, an apartment of the King’s palace that was easily accessible to
suitors. This eventually became known as the Court of Star Chamber and was a
well- established institution by the reign of Henry 7, before being abolished in 16402.
3. No opposition to the Council’s judicial jurisdiction in criminal matters appears
to have been raised before 1350, the Council before then being regarded as a Court
45 1 A Committee of the Privy Council, which is the direct descendant of the old Curia Regis,
remains the organ by which the ancient prerogative of the Crown as the fountain of justice
is exercised in relation to, inter alia, appeals from certain overseas territories.
2 16 Cha.1 c.10.
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8
of Peers within the terms of Magna Carta. However this jurisdiction was unpopular
with the common lawyers (who feared a competing jurisdiction), with many laymen
(who regarded the Council as an instrument of government available to enforce
5 tyranny) and with the judges (who insisted that the Council had no authority to set
aside their judgments on the ground of error).
4. Moreover the procedure of the Council was open to abuse. In criminal cases
the Council proceeded by ‘criminal information’ which, though the accuser had to
give security, by-passed the usual court procedure of the grand jury3. Grand juries
10 were regarded as a safeguard for the citizen and by-passing them in this way could
be hazardous for any defendant who was out of political favour or who simply had
powerful enemies. In consequence several petitions were made in Parliament
opposing the jurisdiction of the Council in criminal cases. These petitions were
largely based on the ground that it was an infringement of Magna Carta which
15 provided against the imprisonment or dispossession of a freeman except by the
judgment of his peers or the law of the land. The Council did not give a ‘lawful
judgment of peers’ because it tried cases without juries.
5. The Parliamentary petitions against the Council’s jurisdiction in criminal cases
resulted in three Acts being passed to limit the powers of the Council. These Acts
20 did not extinguish the Council’s jurisdiction in such cases but rather abolished the
procedure whereby a person could be summoned to appear before the Council to
answer charges without the safeguards that the court system would have provided.
25 Edw.3 Stat.5 c.4 (the 1351 Act)
25 Again;
Moreover, the rights and freedoms guaranteed under the European

30
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment IN
35 THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is complimentary
to British (constitution) law, as the Commonwealth of Australia Constitution Act 1900 (UK) is.
Therefore, the European Union Human rights law are applicable within the legal jurisdiction of
40 the Commonwealth of Australia as well as within the State of Victoria legal jurisdiction.
Abolition of old British (Colonial or other) legislation upon the premises that European Union
laws now basically make certain old British law obsolete in itself cannot then be used in regard
of the same legislative provisions then applicable and still remaining applicable in the State of
Victoria and the Commonwealth of Australia to be abolished unless it is accepted that the same
45 European Union Human rights legislative provisions and other legal provisions are applicable in
the Commonwealth of Australia and also within the State of Victoria legal jurisdiction.
Edward 3 contained 23 chapters, most of which have long since been repealed.
Chapter 4 bears the sidenote “None shall be taken upon Suggestion4 without lawful
50 Presentment”. The text of Chapter 4 reads as follows:
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p199
“Whereas it is contained in the Great Charter of the Franchises of England,

that none shall be imprisoned nor put out of his Freehold, nor of his
Franchises nor free Custom, unless it be by the law of the Land; It is
accorded, assented, and stablished, That from henceforth none shall be taken
5 by Petition or Suggestion made to our Lord the King, or to his Council, unless
it be by Indictment or Presentment5 of good and lawful People of the same
neighbourhood where such Deeds be done, in due Manner, or by Process
made by Writ original at the Common Law; nor that none be out of his
Franchises, nor of his Freeholds, unless he be duly brought into answer, and
10 forejudged of the same by the Course of the Law; and if any thing be done
against the same, it shall be redresseed and holden for none.”.
28 Edw.3 c.3 (the 1354 Act)
8. The statute passed at Westminster in 1354 in the 28th year of the reign of
Edward 3 contained 15 chapters all of which have long been repealed except
15 chapter 3. Chapter 3 bears the sidenote “None shall be condemned without due
Process of Law”. The text of chapter 3 reads as follows:
“That no Man of what Estate or Condition that he be, shall be put out of Land
or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death,
without being brought in Answer by due Process of the Law.”.
20 42 Edw.2 c.3 (the 1368 Act)
9. The statute passed at Westminster on 1 May 1368 in the 42nd year of the
reign of Edward 3 contained 11 chapters. The only chapter in this statute that has
survived to the present day is Chapter 3 which bears the sidenote “None shall be put
to answer without due Process of Law.” The text reads as follows:
25 “At the Request of the Commons by their Petitions put forth in this Parliament,
to eschew the Mischiefs and Damages done to divers of his Commons by
false accusers, which oftentimes have made their Accusations more for
Revenge and singular Benefit, than for the Profit of the King, or of his People,
which accused Persons, some have been taken, and [sometime6] caused to
30 come before the King’s Council by Writ, and otherwise upon grievous Pain
against the Law: It is assented and accorded, for the good Governance of the
4 A suggestion was an allegation or representation lacking formal evidence or proof of the
matter being alleged or
represented.
35 5 A presentment was a report or accusation made by a grand jury or other body of men (for
example, neighbours of the
accused).
6 I.e. others.
40 Last printed 09/06/05 12:32
10
Commons, that no Man be put to answer without Presentment before
Justices, or Matter of Record, or by due Process and Writ original, according
to the old Law of the Land: And if any Thing from henceforth be done to the
45 contrary, it shall be void in the Law, and holden for Error.”
10. The nub of these three Acts is that no-one should be deprived of his life,
liberty or property except in accordance with due legal process involving the laying of
formal charges which had to be tested in a judicial or quasi-judicial setting.
11. The protection given by these Acts has long ceased to be necessary with the
50 development of the institutions and practices that comprise the modern legal process
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p200
throughout the United Kingdom. In particular an elaborate structure of criminal

courts now exists to hear and determine accusations of criminal activity. Upon a
finding of guilt, the criminal courts have power to inflict punishment, commonly in the
form of a fine or imprisonment. There is no modern equivalent of the mediaeval
5 King’s Council to usurp the judicial function of the criminal courts in determining
whether a person is guilty or what the penalty should be.
12. The subject matter of the three Acts firmly engages key provisions in the
European Convention on Human Rights, now incorporated into UK domestic law by
the Human Rights Act 1998. These provisions so far as material are set out in full in
10 the Annex to this note. They are as follows-
♦Article 2 (right to life). This supersedes the protection given by the 1354
Act against a person being put to death without due process of law
♦Article 5 (right to liberty and security). This supersedes the protection
given by the 1354 Act against a person being imprisoned without due
15 process of law
♦Article 6 (right to a fair trial). This supersedes the protection given by the
1351, 1354 and 1368 Acts against a person being judged or having his
rights and liberties determined without due process of law or without his
having the right to answer the allegations made against him
20 H\Wrd\Sndrs2\criminal repeals
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11
Also;
25 Introduction
1. The Sale of Offices Act 1551 (“the 1551 Act”) forbade the sale of certain public
offices connected with the administration of justice, on pain of specified disabilities
upon those offering or accepting reward. Section 1 of the Sale of Offices Act 1809 (“the
1809 Act”) extended the 1551 Act to all offices in the gift of the Crown, and extended its
30 territorial extent to cover Scotland and (Northern) Ireland. The 1809 Act also made it
an offence9:
♦to sell, purchase or bargain for any office, commission, place or employment
in the gift of the Crown (section 3);
♦to receive or pay money for soliciting or obtaining any such office or make
35 any negotiation or pretended negotiation relating thereto (section 4);
♦to open or advertise houses for transacting business relating to the sales of
offices in any public department (sections 5 and 6).
9 Sections 3-5 were misdemeanours in the laws of England and Wales and Ireland, but the
distinction between a felony and a
40 misdemeanour was abolished (as to England and Wales) by the Criminal Law Act 1967,
s.1 and (as to Northern Ireland) by
the Criminal Law Act (Northern Ireland) 1967, s.1. The maximum period of imprisonment
for such an offence for which no
other term of imprisonment is specified is two years: Powers of Criminal Courts
45 (Sentencing) Act 2000, s.77; Criminal Law
Act (Northern Ireland) 1967, s.7(1).
Again;
♦
to sell, purchase or bargain for any office
50
p 200 9-3-2009
p201
Also;
4. The 1551 and 1809 Acts represented efforts to eliminate the purchase and sale
of public offices, the first being in the context of judicial administration. As Holdsworth
10 The Public Bodies Corrupt Practices Act 1889 (c.69), the Prevention of Corruption Act
5 1906 (c.34) and the Prevention of
Corruption Act 1916 (c.64).
11 Halsbury's Laws of England vol.11(1) (4th ed., 1990) paras.281-3.
10 16
pointed out12, although the 1551 Act was apparently comprehensive in scope in
forbidding the purchase and sale of judicial offices it-
"contained two fatal flaws. Both offices which could be held for estates of
inheritance, and offices which were in the gift of the chief justices of the King's
15 Bench and Common Pleas13, were excluded. Attempts in 1690 and 1692-
1693 to legislate against the buying and selling of offices failed; and, as the
judges and their staffs were some of the chief offenders, it is not strange that
such legislation as was passed to check the abuses of the system was
practically a dead letter.... The path of the reformer was always blocked by a
20 phalanx of vested interests." (Footnotes omitted)
Also;
7. The 1551 Act forbade the sale of certain public offices connected with the
administration of justice, on pain of specified disabilities upon those seeking them or
25 accepting reward (section 1). All such sales or agreements for sale were declared void
(section 2) and anyone making a contract for an office in violation of the Act was
disabled for life from holding the office20. The Act was not comprehensive. It applied to
clerkships in the courts of record and to certain offices of trust21, and there were
exceptions under provisos since repealed. The restrictions of the Act gave rise to
30 substantial case law as to the offices within its scope and the types of contravention of
its provisions; but there appear to have been no cases since The 1809 Act
8. Section 1 recited section 1 of the 1551 Act, confirmed it, and extended its
provisions to Scotland, (Northern) Ireland and to all offices in the gift of the Crown or of
any office appointed by the Crown, and all commissions civil, naval, or military, and all
35 places and employments under HM governments in the United Kingdom or elsewhere.
Section 2 provided that all interests forfeited as a result of the two Acts were to vest in
the Crown.
9. Sections 3-6 created a series of offences. Section 3 made it an offence to sell,
purchase or bargain for any office or employment in the gift of the Crown, directly or
40 17 Hence the exception to the ambit of the Act made by ss.10 and 11 - see para.10 below.
And see generally Holdsworth, A
History of English Law, vol.XIV (1964) pp.132-4.
18 Holdsworth, ibid, pp.135-7.
19 The last reported case was in 1862.
45 20 Section 1; and see Russell on Crime (12th ed. 1964) p. 376.
21 According to J Burke (ed) Jowitt’s Dictionary of English Law vol.2 p.1278 (2nd ed.
1977) public offices are either "offices
of trust" which cannot be performed by a deputy, or ministerial offices (which can).
22 See Russell on Crime (12th ed, 1964), pp. 374-6.
50 H\Wrd\Sndrs2\criminal repeals
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18
indirectly. It appears to be unnecessary to allege or prove that the defendant acted
corruptly or dishonestly. Section 4 made it an offence to receive or pay money for or
5 solicit or obtain any such office or make any negotiation or pretended negotiation
relating thereto. It is aimed at the power (real or pretended) to influence the person
who has the authority to dispose of the office or employment.
Also;
10 14. In England and Wales it is an offence at common law for anyone to offer or give
a judge, magistrate or other judicial officer, or for any of them to take, a gift or reward to
influence their behaviour; or for anyone to bribe a public officer or for a public officer to
accept a bribe as an inducement to act contrary to his duty (which includes a bribe to
procure or to receive a reward for procuring an appointment to an office)28. This is
15 analogous to the offence of misconduct in a public office29, for which charges have
been brought in modern times30. A contract for the sale of a public office is contrary to
public policy and cannot be enforced, while the sale of a recommendation to a public
office, or an agreement by a person for pecuniary reward to use his influence in order
to obtain such an office for another, is unenforceable on the same ground31.
20 Also;
The maximum penalty is seven years' imprisonment and a
fine, with on a first conviction a discretion to disqualify from office for five years and, on
a second, for life. The 1906 Act made similar provision in relation to agents or
employees, including a person serving under the Crown or a local government
25 employee. The 1916 Act provided for a presumption of corruption where it was proved
that any consideration had been given to or received by a person employed by such a
Department or body from anyone holding or seeking to obtain a contract from it (section
2).
17. It will be evident that these Acts penalise financial inducements or bribes offered
30 to or solicited by officers in both local and central government, and in any other public
body (which it is clear from recent case-law is to be widely construed). Such an
inducement is penalised if it is in connection with any "matter or transaction" of local or
central government or such a public body; this is sufficiently general to encompass any
matter relating to appointments within government or the body concerned. The
35 33 Ibid.
34 Prevention of Corruption Act 1916, section 4(2)). “Public body” has a wide meaning: R
v Joy and Emmony (1974) 60 Cr. App.
R. 133. In DPP v Holly [1978] AC 43 the term was in the context of these Acts held to
mean any body in public ownership which
40 had public or statutory duties to perform and which performed those duties and carried out
its transactions for the benefit of the
public and not for private profit.
45 21
offences are committed both by an office holder accepting the inducement and by the
person offering it. The Acts therefore penalise directly the activities penalised by
sections 3-4 of the 1809 Act. Moreover the maximum penalty for any offence under the
Acts (7 years imprisonment) is greater than it would be under sections 3-4 of the 1809
50 Act. Further in the case of an offence under the 1889 Act, a person convicted may be
p 202 9-3-2009
p203
disqualified from office, as under the 1551 and 1809 Acts.
What is important to be considered is that it was held that there could be legal consequences if
the Sale of Office Act were not repealed because the British government had been selling of
5 Utilities and other government properties and to place it beyond legal doubt the Act required to
be repealed. Hence, where the Act was not repealed in the Commonwealth of Australia and/or
the State of Victoria then its application remains still available, and Mr Francis James
Colosimo pursues this!
The Commonwealth of Australia and/or the State of Victoria cannot repeal old English law as it
10 has no such legislative powers. The Westminster Act neither pursues to give such legal powers to
repeal (old) British law. It formed part of “common law” when the British settled in the continent
Australia!
Again;
These Acts have long ceased to have any
15 practical utility. Moreover, the rights and freedoms guaranteed under the European
This clearly sets out that a repeal in the United Kingdom, because of the application of the
20 European Union Human Rights Act may not be as such applicable in the Commonwealth of
Australia and/or the State of Victoria if the same were not deemed to be applicable. Hence, the
issue is therefore to ascertain if the European Union Human Rights Act does apply to the
Commonwealth of Australia and/or the State of Victoria, being that the Commonwealth of
Australia Constitution Act 1900 (UK) is and remains imperial legislation and all the States
25 including the State of Victoria (A dominion under the British Crown) remain under imperial
powers, even if it is purported otherwise by those seeking to create a republic by a back door
approach.
The document is to repeal certain legislation clearly does not portray to intend to be applied to
30 the Commonwealth of Australia and/or the State of Victoria and to apply the repeal, as such, the
onus is upon the Prosecutor to prove that the effect of the repeal was to be applied to the
Commonwealth of Australia and/or the State of Victoria for similar reasons as outlined by the
law review committee and point out where within the Commonwealth of Australia and/or the
State of Victoria, legislative provisions the equivalent of the European Union Human Rights Act
35 provisions are provided, if the Prosecutor does not concede the European Union Human Rights
Act to be applicable to the Commonwealth of Australia and/or the State of Victoria.
Also
Offences against the Person Act 1861
Introduction
40 1. The Offences against the Person Act 1861 (“the 1861 Act”) was one of a
number of consolidating Acts of 1861. Its purpose, according to its long title, was to
consolidate and amend the statute law of England and Ireland relating to offences
against the person.
2. Although much of the 1861 Act still remains in force, certain provisions have
45 become unnecessary in the 140 years since its enactment, mainly through being
superseded by subsequent legislation. This note identifies these provisions and
recommends their repeal.
Section 17 (impeding a person endeavouring to save himself or another from
shipwreck)
50 3. Section 17 provides as follows-
p 203 9-3-2009
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“Whosoever shall unlawfully and maliciously prevent or impede any person,

being on board of or having quitted any ship or vessel which shall be in
distress, or wrecked, stranded, or cast on shore, in his endeavour to save his
life, or shall unlawfully and maliciously prevent or impede any person in his
5 endeavour to save the life of any such person as in this section first aforesaid,
shall be guilty of felony, and being convicted thereof shall be liable to be kept
in penal servitude for life” 100.
The latter underlining that despite this being still relevant in the Commonwealth of Australia
10 nevertheless refugees seeking to come to the shores of the Commonwealth of Australia in
unseaworthy boats were on order of Prime minister John Howard towed back into open seas and
many drowned when their unseaworthy boats sank subsequently. As such, the rule of law appears
to be shattered to be applied now against vulnerable people and not against those in high offices,
regardless that it should be applied appropriately against all, regardless of their standing.
15 For the record, while the repealed sections relate to the United Kingdom, as to repeal, we find
that in the Commonwealth of Australia , even so the repeal does not apply, we nevertheless have
refugees without DUE PROCESS OF LAW of a trial and judicial decision, even so the Framers
of the Constitution insisted this was to be done, refugees regardless, are now detained offshore in
detention centers.
20 Gradually, the rule of law is being ignored and as long as judicial officers accept and do not
counter unconstitutional application of the law then little protection is bestowed upon the
ordinary person, including refugees, as to what is constitutionally applicable.
DUE PROCESS OF LAW now appears to be that a person either pays up or suffers injustices
25 by bureaucratic processes often ending up in a catch 22. Either cop it sweet, so not to disturb
your life too much, or be confronted by a huge and protracted and expensive battle to pursue
JUSTICE, where all constitutional and other legal provisions are ignored. This being the law
applied is no law but enforcement by entrapment to the detriment of the pursuit of happiness
which human beings are entitled to. In this the purported protection of the State has become
30 entrapment.
QUOTE
In the Constitution Act 1975 (Vic), s 2 it states (1) existing laws remain in full force unless
they are changed – and it is ONLY lawful to “change” statute law from Imperial or
common law with written law that conforms with the higher law. (2) all courts and all
35 offices continue, etc.. Then the Act, in s 3 (1), provides that, “subject to the Imperial Acts
Application Act 1922 all laws in force within the realm of England in 1828 .. shall be
applied in the administration of justice in the courts of Victoria …” The State Parliament
does NOT have plenary power to do anything it likes, and, the courts are responsible to
maintain higher laws!
40 END QUOTE
Therefore, at law, the Constitution Act 1900 respected State (then colony) constitutions existing
with all law in Imperial Acts in tact, and that, according to clause 5 the intention of the Framers
of the Constitution is seen in that Imperial and common law was to (still) take precedence over
the statute law of the (new) States, and also in the exercise of administration of justice in the
45 courts of the States. To act in any other manner would be “unconstitutional”, and it would be an
offence, or crime, against the people. Likewise, in the Constitution Act 1975 (Vic), the executive
power of the Queen, as one to assent to legislation proposed (as the third tier of Parliament), is
required to constitutionally stand without diminution by so-called “conventions” that might try to
impose the will of the ministers who are simply there as advisers – for they have NO power at
50 law beyond that limit in the constitution. For the “convention” to become “the law” upheld by
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the courts would mean the ministers would be given unconstitutional power, and they would
act ultra vires when they advise in terms that offend the Constitution!
It ought to be outlined that while “The provision claimed to enable this enactment was section 60
5 of the Victorian Constitution Act 1855. Section 60 states- “that the legislature of Victoria, as
constituted by this Act, shall have full power and authority from time to time, by any Act or
Acts, to repeal, alter or vary all or any of the provisions of this Act.” This ought to be taken in its
proper context. For example the Victorian constitution could not provide for the abolition of a
person being in the State of Victoria to be and remain a British national, as that would be beyond
10 its constitutional powers. It is a matter of inherited right by anyone born within the realm of
the King (Queen) to obtain then the nationality of the Monarch. Therefore the application of
Section 60 of the Victorian Constitution Act 1855 must be considered within the limited powers
for which the Constitution was created. Neither did this Act purport to give the State of Victoria
to be given any constitutional powers to be party to some purported Australian Act 1986 as this
15 would be beyond the constitutional powers granted by the Monarch.
The grant of legislative powers within the Victorian Constitution Act 1855 never was and never
could be deemed to, overthrow the British Monarchy as it was created for the establishment of a
colony under the laws of the British Empire and the 1975 Constitution Act therefore could not
dispose of the Victorian Constitution Act 1855 as a whole but merely could amend provisions
20 for so far as it was within its legislative powers within Section 60 of the said Victorian
Constitution Act 1855.
It would be “sedition” if the Victorian Constitution Act 1975 were to seek to abolish the British
Crown status or implied this to be so with the purported Australian Act 1986.
The Victorian Constitution Act 1855 was granted within the powers of the reigning Monarch
25 within a letters patent and it would be beyond the State of Victoria to somehow alter this limited
legislative powers as to create itself a more general legislative power.
As a simple example, a tenet can only operate within the terms of the lease with the landlord. The
tenant cannot make some kind of agreement with other tenants as to thereby nullify the limited
rights within the lease and create by the agreement with other tenants some greater right, such as
30 to demolish part or whole of the owner's property. Likewise, the colonies agreement to have
some purported Australian Act 1986 was beyond their constitutional powers of the Letters patent
and as such the Australian Act 1986 for this also is NULL AND VOID.
Basically, to declare the Commonwealth of Australia to be independent from the British Crown
is to rebel against the very constitutional provisions now relied upon by the Federal government.
35 So to say, it cannot have the cake and eat it too! Either there is British legislation being the
Commonwealth of Australia Constitution Act 1900 (UK) and applies as enacted, with
referendum approved amendments, or simply there is not. Likewise, the State of Victoria remains
part of the British Crown within the limited powers of the Victorian Constitution Act 1855 or it
does not. The Victorian Constitution Act 1855 was beyond repeal or purported repeal of the
40 Victorian Parliament. It is like the grant of Enduring Power of Attorney. A granter decides the
extend of the power and when it is to be terminated, if at all. The person appointed as Attorney
cannot then create his own kind of grant of Enduring Power of Attorney and then purport to
repeal the original grant, as only the grantor can alter it at law. For example; A lawyer engaged
by a party in legal proceedings, say regarding a car accident, could not then take the limited
45 powers given to represent the client in the case on that matter, then go and on his/her own behest
decide to go ahead and sell his clients properties, which has nothing to do with the power that
was granted him/her to represent the client in relation to a car accident only. Clearly, a lawyer
can only act within the powers granted and not beyond.
The British Crown was the grantor of the Victorian Constitution Act 1855, and as such having
50 provided within Section 60 that the Victorian Parliament can “repeal, alter or vary all or any of
p 205 9-3-2009
p206
the provisions of this Act.”, it remains to be limited to that, but cannot repeal the Act itself
neither the limited powers of it. The limitation given to the Parliament of Victoria was to clearly
deal with the “provisions” contained in the Victorian Constitution Act 1855 and not to somehow
extend the grant of powers provided within the letters Patent, as to somehow abolish the British
5 Crown applicable to Victorian legislation, etc.
The following document was a draft created by Mr George Sapantzis, but not litigated by him,
Mr Francis James Colosimo relies on the argument as set out in it.
QUOTE
10 IN THE MAGISTRATES COURT No

T00779141
OF VICTORIA AT SEYMOUR
T00268410
15 BETWEEN
Simon John Eaton Informants
Philip Grant Lloyd
AND
George Sapantzis Defendant
20
NOTICE OF A CONSTITUTIONAL MATTER & OTHER MATTERS– AS A VOIRE DIRE
I, George Sapantzis give notice to this court that the above proceeding involves
matters arising under the Federal Constitution or involving its interpretation within the
25 meaning of Section 78B of the Judiciary Act, 1903 and hereby table such matter as a
Voire Dire, being that.
1. In 1975 the Victorian Parliament was dissolved which followed the repeal of
the earlier Victorian Constitution. Immediately thereafter persons in
30 Parliament, that no longer held authority, enacted the Victorian Constitution
Act 1975.
2. The 1975 Victorian Parliament purportedly enacted the said constitution for
the people of Victoria. The provision claimed to enable this enactment was
section 60 of the Victorian Constitution Act 1855. Section 60 states- “that
35 the legislature of Victoria, as constituted by this Act, shall have full power and
authority from time to time, by any Act or Acts, to repeal, alter or vary all or
any of the provisions of this Act. The schedule of the Victorian
Constitution Act 1975 states that the whole act has been repealed.
2.1 The Victorian Parliament, in 1975 only had the power to repeal the
40 provisions of the Victorian Constitution Act 1855. and not the whole
act
2.2 Another provision required by section 60 of the Victorian
Constitution Act 1855 is that in order for the lawful passing of any
repeal it requires “ that every Bill which shall be so passed shall be
45 reserved for the Signification of Her Majesty’s Pleasure thereon”.
The Victorian Year Book 1984 states in relation to Sir Henry
Winneke (the Victorian Governor from June 1 1974 until March 1
1982) that on two occasions he reserved bills for the Queens
assent. These were the Constitution Act 1975 and the
p 206 9-3-2009
p207
Constitution (Governor’s Pension) Act 1978” Her majesties

assent was never granted.
2.3 Notwithstanding the legality of the Victorian Constitution Act 1855,
retains the legal status and effect that it had in 1857. The
5 Westminster Parliament is the only authority that could repeal The
Victorian Constitution Act 1855. The Hansard of that parliament
shows no mention of any such repeal. Similarly archivists at the
House of Lords Records Office confirm the 1855 constitution is in
force.
10 2.4 Furthermore, Section 106 of the Australian Constitution states that-
“The Constitution of each state of the Commonwealth shall, subject
to this constitution, continue as at the establishment of the
commonwealth, or as at the admission or establishment of the
State, As the case may be, until altered in accordance with the
15 constitution of the state”.
3. The Victorian Constitution Act 1975 has not continued as at the
establishment of the commonwealth nor has it been altered in
accordance with its constitution.
4. Therefore, I hold, that:
20 4.1 The Magistrates Court Act 1986 an/or
4.2 The Supreme Court Act 1975 and/or
4.3 The appointment of magistrates to the magistrates court or of
judges to the county court, which derives its head of power from the
Victorian Constitution 1975, is wholly void and inoperative.
25 5. The Victorian parliament created a new Constitution in 1975 without the
authority of the electors of the State of Victoria who are entitled to vote for a
member of the Legislative Council and also the Legislative Assembly AND
without the authority of the Westminster Parliament. Could the Victorian
Parliament repeal the Victorian Constitution 1855 without a referendum of the
30 people?
6. Did the Governor of Victoria commit an Act of treason by giving Royal Assent
to the Victorian Constitution of 1975? If so, did he abdicate by process of
law? If so are all functions of the Governor null and void from that point of
time onwards?
35
7. On 17 August 2005 a Subpoena for production was filed with the court for the
production of documents upon the prosecution and the informants. The court
has such subpoena on the court file.
40 8. Such subpoena made order that the prosecution produce to the court and the
defendant such documents within its possession that disclosed information in
relation to its incorporation, pursuant to the schedule in the subpoena.
9. Such order of the court was and is still denied by the court and the
prosecution. This in-action constitutes a blatant contempt of court and has
45 interfered with the proper administration of justice and a total knowing
disregard for the authority of the court.
10. The subpoena’s relevance is directed towards the standing of the Informants
or the prosecution, the organization, the corporation to bring about a
proceeding against me. Furthermore it is a material fact in the creating,
50 providing and assisting in my defense.
p 207 9-3-2009
p208
11. It is a maxim of law that it is a right of an accused to inquire as to the Authority

of his accuser and as to the integrity and standing of his accuser.
12. Furthermore the defendant on 31 August served upon the informants a Notice
to Produce, - again requiring the prosecution to produce documents as
5 outlined in the subpoena. To this day there is no reply from the prosecution.
13. Following from this notice there was a Notice of Default dated 2 November
2005, served on the informants. Again this notice provided 7 days within
which the prosecution could still respond to my lawful request, and to this day
has not done so.
10
14. Admissibility of evidence issues on the part of the informants relating to lack
of caution before and during any police investigation, interrogation arrest and
interview.
15
15. It is from the above-mentioned facts that this proceeding be struck out, and
dismissed ab initio.
20
Signed under my own hand
In the Magistrates Court of Victoria
This day of 2005

25 END QUOTE
Obviously a “SCHEDULE” to an enactment is different then an Act itself. While the Victorian
Government may have the legislative powers to make any enactment within its constitutional
powers granted with the Victorian Constitution Act 1855, it is another matter if it purports to
30 have enacted the Victorian Constitution Act 1975 as to replace the Victorian Constitution Act
1855 as this would beyond its constitutional powers and as such would be NULL AND VOID.
As the Framers of the Constitution (the Commonwealth Constitution Bill 1898) had then
already debated, there appears to be no constitutional powers for a State (then Colony) to refer its
35 legislative powers to the Commonwealth of Australia.
For example section 6 of the Victorian Constitution Act 1975 gives the State Parliament
legislative powers in all matters for its residents. This clearly does not include, the giving away
of legislative powers, such as was purportedly done with the Commonwealth Powers (Family
Law--Children) Act 1986 Act No. 92/1986, as this goes beyond State Parliament powers. The
40 moment State Parliament seeks to dispose of legislative powers State Parliament breaches
Section 6 as then the State Parliament could no longer provide for legislation itself, having given
the legislative powers to do so away to the Commonwealth.
The argument/assumption by the High Court of Australia appears to be based for example upon
45 the Royal Titles Act that a change of title can somehow have effect upon the limited political
Union in the Commonwealth of Australia status. If this were so then this would have horrendous
consequences in law, for those people who change their title, by marriage or otherwise that then
somehow their legal position may be deemed to have changed at law, which may at times be to
the negative as to what they were originally entitled to rely upon.
50
p 208 9-3-2009
p209
As is clear in Section 107 of the Constitution the States legal jurisdiction do not form that part of
the Commonwealth of Australia, as to argue that each and every legislative power of a State
would have to have been derived from the Commonwealth of Australia. Because the
Commonwealth of Australia is a limited political Union, with rules to that union agreed upon and
5 under which the union exists. These rules the States agreed to, to form the Commonwealth union
of the States. So herewith, the States, other than abiding by the union rules as agreed upon, are
autonomous governing bodies under that part the Commonwealth of Australia as the rules agreed
upon. Certainly not the other way around as to the notion that the States derive their power from
the Commonwealth which is limited to the agreement made and which agreement via Section
10 128 Referendum, voting by the people in the majority of States is the instrument that alters such
agreement originally made by the people.
The very danger with the Australian Act 1986 is that if this were to be deemed to be
constitutionally and otherwise legally valid then it would empower the Commonwealth of
15 Australia to effectively take over the States and abolish the State Governments altogether. This
was the very danger the Framers of the Constitution eluded to, when debating whether
citizenship was to be a power to trust to the Commonwealth. A resounding NO was their
decision, and they saw fit to leave citizenship as naturally belonging to each State and saw as
such citizens as included in the Commonwealth as dual citizenship as by virtue and natural
20 consequence of being a State citizen and therefore not necessary as a Commonwealth power, in
fact they saw that power in the hand of the Commonwealth to be avoided, as quoted:-
25 Mr. BARTON.-If the honorable member's exclamation means more than I have
with the lives, liberty, and property of all the persons residing in the Commonwealth,
"Trust the Federal Parliament" would mean unless it was limited by the consideration I
30 have laid down. I am sure Dr. Quick will see that he is using a word that has not a
Constitution. He will be giving to the Commonwealth Parliament a power, not only of
narrowest limits, so that the citizenship of a state might be worth nothing; or of
35 extending them in one direction, and narrowing them in another, so that a subject
heels. Under the Constitution we give subjects political rights to enable the Parliament to
of electors. It is that qualification of electors which is really the sum and substance of
40 political liberty, and we have defined that. If we are going to give the Federal Parliament
defined it, we may be enabling the Parliament to pass legislation that would really
ducks and drakes with it. That is not what is meant by the term "Trust the Federal
45 Parliament."
Again;
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
p 209 9-3-2009
p210
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."
The very issue of NULLIFICATION is that the State (that is the State Courts) and not the
5 Commonwealth of Australia can decide if Commonwealth legislation is or is not to be enforced
against a State resident.
If however the Commonwealth of Australia takes over from the States and could dictate the State
courts then it could wipe out all together the right of NULLIFICATION and insist that State
judicial officers, dance to the tune of the Commonwealth.
10 Likewise, with a Section 78B NOTICE OF CONSTITUTIONAL MATTERS, the
Commonwealth cannot dictate to a State Court how this shall be used in any State Court, even if
it were to exercise federal jurisdiction. The objection invokes the original interpretation
necessary from the High Court of Australia, so as to discover whether the Constitution as agreed
to by the joining of the States under the union of the Commonwealth is adhered to at law. If not it
15 is ULTRA-VIRES affording no obedience or detrimental claims against the objecting party.
In this case Mr Francis James Colosimo has not pursued anything other than to object to the
jurisdiction of the Court/VCAT and even without Mr Francis James Colosimo placing any
material whatsoever before this Court, the onus is upon the Prosecutor to then prove jurisdiction.
20 Where Mr Francis James Colosimo has produced material in aid of his objection this then is an
added burden upon the Prosecutor to disprove this also.
It must not be ignored that in view of the 4 December 2002 order of the Magistrates’ Court of
Victoria at Heidelberg having ruled that constitutional issues such as “citizenship” was to be
heard and determine by the High Court of Australia, then there is on the legal record of the
25 constitutional based objection, “alive” not having been discharged, in the Courts of Victoria and
as such the Australian Citizenship Act 1948 is and remains ULTRA VIRES unless and until, if
ever at all, the High Court of Australia were to declare the legislation INTRA VIRES, which Mr
Francis James Colosimo submits cannot be done within the environment of the Commonwealth
of Australia Constitution Act 1900 (UK)
30 Where then all and any charges against Mr G. H. Schorel-Hlavka arose after the 4 December
2002 when the magistrate at the Heidelberg Magistrates' Court ordered that Mr G. H Schorel-
Hlavka matter be stood down pending the outcome of the constitutional objection. For although
Mr G. H Schorel-Hlavka succeeded in his case in the County Court on the 19 th of July 2006 the
Constitutional objection has not been as such addressed, remedied or discharged. Then likewise
35 effectively none of the charges levelled against Mr Francis James Colosimo, including current
charges before the Court/VCAT can have any legal justification
KANPUR INCOME-TAX BAR ASSOCIATION & ANR. v. UNION OF INDIA & ORS. Civil
Misc. Writ Petn. No. 767 of 1997, decided on February 11, 1998. (Folder 31)
40 22. We would, therefore, hold that any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of public duty
or from violation of some provision of the Constitution or the law and seek enforcement of
such public duty and observance of such constitutional or legal provision. This is
absolutely essential for maintaining the rule of law, furthering the cause of justice and
45 accelerating the pace of realisation of the constitutional objective. ...
.
The contempt issue
.
Marriage of McJarrow Fam LR6, 746 (1980)
p 210 9-3-2009
p211
(iii) Where a properly instituted application for contempt which was civil in nature was before
the court, the court could not properly proceed to hear and determine the application of its
own motion in the absence of the applicant.
5
“No formal order was taken out as to the dismissal of the wife’s application and the question
was raised by the Principal Registry on the filing of the notice of appeal as to whether or not
there was an order from which an appeal could arise. By arrangment a formal order was taken
out and the appeal proceeded.
10 In my judgment the signing by the registrar of an order is irrelevant to the question as to
whether or not an order was made. The signing and sealing of an order is no more that an
administrative act passing and entering the order into the records of the court. Once an order
has been pronounced by the court then there is in existence an order which can be appealed
pursuant to S94 of the Act.”
15 And
“The powers of the High Court are those of the Queen’s Courts of Common Law and Equity
ie of superior courts of record.
Halsbury 3rd ed Vol 8 at p2 deals with contempts of superior courts of records and states;
Contempt of court is either criminal contempt, consisting of words or acts obstructing or
20 tending to obstruct, the administration of justice or contempt in procedure, consisting of
disobedience to the judgment, orders, or other process of the court, and involves a private
injury.” At page 3 it pointed out that criminal contempt is a misdemeanour punishable on
indictment by fine or imprisonment or by order to give security for good behavior.
The distinction is set out in Oswald”s Contempt of Court 3rd ed p36 and quoted with approval
25 by the Full Court of Canada in Tony Poje v A-G BC (1953) 2 DLR 785 at 792”… generally,
the distinction between contempts criminal and not criminal seems to be that contempts which
tend to bring the administration of justice into scorn, or which tend to interfere with the due
course of justice, are criminal in their nature; but that contempt in disregarding orders or
judgments of a Civil Court, or in not doing something ordered to be done in a cause, is not
30 criminal in its nature. In other words, where contempt involves a public injury or offence, it is
criminal in its nature, and the proper remedy is committal – but where the contempt involves a
private injury only it is not criminal in its nature..”
And
A contempt in procedure by disobedience of an order of the court or by breach of an
35 undertaking given to it may be accompanied by such contumacy or defiance on the part of the
party against whom the contempt proceedings are brought as evidences a criminal as well as a
civil contempt.
R v Cook; Ex parte Twigg (1980) Fam LR6 161

40
(d) When an alleged contempt of the Family court is not committed in the face of the court,
the offender can only be punished upon application (Family Law Act 1975(Cth) s 44) and the
judge who makes the application cannot hear it.
45 In the Marriage of Cooper (1980) Fam LR 288

(i) Contempt in the face of the court is distinguished from contempt not in its face on the
footing that all the circumstances of the alleged contempt are within the personal
knowledge of the judge. The solicitor’s actions were committed in the face of the
court as the record is in file containing the affidavit and no disputed issues of fact
p 211 9-3-2009
p212
arise. The argument that the court has no jurisdiction should therefore be rejected.
Balogh v Crown Court (1974) 3 All ER 283; McKeowen v R (1971) 16 DLR 3d)
390, applied
(ii) The filing of an affidavit by a child without leave of the court was prima facie a
5 contempt in the face of the court. However, as the solicitor appeared to answer the
charge and sought to withdraw the offending affidavit, no further action should be
taken and the solicitor should be discharged.
In the Marriage of Helliar (No 3) 5 FLR 756 at 758/759

10 "That qualification is that the spirit and philosophy of the Family Law Act, as
evidenced by s70, s107, and s114, as well as many provisions aimed at encouraging
conciliation, discourage resort to contempt power where it is appropriate to use
other remedies first: Sahari and Sahari (1976) 2 Fam LR 11,126; ALR 679; (1976)
FLC 90-086, at 75 and 407;. Legal Practitioners who have their own duties under
15 the Act, should be loathe to advise the invoking of the contempt power until all other
avenues of compliance or agreement have been reasonably considered and explored.
Never the less cases will remain where invocation of the contempt power is the only
appropriate course. Where such a course is necessary, the relevant procedures must
be strictly complied with."
20
5.22. Sahari and Sahari (1976) 2 FLR 11,126 ;ALR 679;(1976) FLC 90-086 at 75,407
"On the evidence before me, I am satisfied that the respondent has disobeyed the order of
the Court. Can it be said then, that such disobedience is more than casual or accidental
and unintentional? It seems to me that I cannot be satisfied beyond a reasonable doubt
25 that this is so. The parties are in dispute about the meaning of the order .... In any event
suspicions, however grave, do not form a sufficient basis upon which a committal for
contempt can be made". However, before the respondent can be committed for contempt,
I must be satisfied that contempt is constituted by 'Willful disobedience ' of a decree".
30 5.23. Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190

"On the evidence before me in this case I am satisfied that the respondent has
disobeyed the order of the court. Can it be said then, that such disobedience is more
than casual or accidental and unintentional?. It seems to me that I cannot be
satisfied beyond a reasonable doubt that this is so. The parties are in dispute about
35 the meaning of the order...". "In any event, suspicions, however grave, do not form
a sufficient basis upon which a committal for contempt of court can be made".
"However, before the respondent can be committed for contempt, I must be satisfied that
contempt is constituted by ' willful disobedience' of a decree".
40
In the Marriage of Sandilands (1979) FLR 882 at 886
"The whole tenor of the total passage from his honour's judgement which I have quoted in
two parts is, in my opinion, that despite the use of the word 'willfully' in the relevant rule of
court, civil contempt is constituted by any breach of the relevant order or undertaking,
45 provided that such breech was not merely casual or accidental or intentional, and that it is
not necessary that there be any deliberate disobedience such as could be categorised as
contumacious, the same position obtains under S108 of the Family Law Act and it is not
necessary to establish the breach which is alleged to constitute the contempt in question was
both willfully and contumacious."
p 212 9-3-2009
p213
"He was in court when the order of Bully J. was made and his undertaking given. He was
legally represented at the time, and nowhere in his evidence, either on affidavit or orally, did
he say that the nature of his undertaking and the obligations which they impose on him were
not fully explained to him by his then solicitor. In the absence of such denial I infer that they
5 were."
.
In the Marriage of Attreed (9180) 6 FLR 453 and 456
Held – “In relation to a charge of contempt, there is an onus of proof upon the
applicant to establish each element of the offence beyond reasonable doubt. One such
10 element is that the offence was committed knowingly and without reasonable cause or
excuse. The respondent is not required to establish on the balance of probabilities that he had
just cause or excuse.
In my view the husband has only to satisfy me on the civil standard of proof”
.
15 In FELTON v. MULLIGAN [1971] HCA 39; (1971) 124 CLR 367 (2 September 1971) the High
Court said: Menzies J: As the Court said in Lorenzo v. Carey (1921) 29 CLR 243, at p 252 : "A
State Court must recognize the laws of the Commonwealth and be guided by them in exercising
its State jurisdiction" (at p383)
.
20 In LEWIS v. JUDGE OGDEN [1984] HCA 28; (1984) 153 CLR 682 (15 May 1984 High Court
of Australia Mason(1), Murphy(1), Wilson(1), Brennan(1) and Dawson(1) JJ.
At common law words or conduct in the face of the court or in the course of proceedings, in
order to constitute contempt, "must be such as would interfere, or tend to interfere, with the
course of justice" (Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264, at p 268 ).
25 Instead of making interference, or tendency to interfere, with the course of justice an element in
the offences which it created, subs. (1) introduces the new element of conduct which is wilful in
pars. (a) and (c). In these two paragraphs the word "wilfully" means "intentionally", or
"deliberately", in the sense that what is said or done is intended as an insult, threat, etc. Its
presence does more than negative the notion of "inadvertently" or "unconsciously" (Bell v.
30 Stewart (1920) 28 CLR 419, at p 427 ). The mere voluntary utterance of words is not enough.
"Wilfully" imports the notion of purpose. (at p688)
.
On the 5th September 2006, the High Court in Forge v Australian Securities and Investments
35 Commission [2006] HCA 44 5 September 2006 C7/2005 made a binding ruling that there is a
“Kable Principle” and the “Kable Principle” is that Courts must be restored to what they were in
1900.
.
It is contempt of the power and authority of a Judge to suggest that he or she not follow the
40 directions of the High Court and it is also contempt of the Court to suggest that a State Rule of
Court has more power and authority than a validly enacted Federal Statute, and to urge a Judge to
break the law is contempt.
.
45 QUOTE Chapter 102 –CONTEMPT OF COURT
Chapter 102 –CONTEMPT OF COURT
p 213 9-3-2009
p214
.
* Gerrit, something you are interested in, the subject I mean?
.
**#** INSPECTOR-RIKATI®, just check out the email below; and other material included in
5 this Chapter.
.
Date: Sat, 11 Aug 2007 16:57:53 +1000 (EST)
From: "Gerrit Schorel-Hlavka" <inspector_rikati@yahoo.com.au>
Subject: Should Courts and the Parliament be restricted as to their "CONTEMPT" powers?
10 To: Kevin.Rudd.MP@aph.gov.au
CC: inspector_rikati@yahoo.com.au
Should Courts and the Parliament be restricted as to their "CONTEMPT" powers?

.
Mr. GLYNN: Undoubtedly the effect of the amendment would be to deal with the
outside public-that power which does [start page 760] not exist in the House of
Commons. In Stockdale v. Hansard it was held that the courts of law were not
precluded by a resolution of the House of Commons from inquiring into the legality
20 of the act complained of, and in delivering judgment in the Court of Queen's Bench,
Patterson (Justice) drew a distinction between powers -especially the power of
invading "the rights of others"-and privilege. These powers are matters of common
law in England, and are liable to be restrained by the Court. Under the proposed
amendment, the House of Representatives could pass a resolution that would have the
25 force of law to an extent denied to be a similar resolution in the House of Commons.
.
Any Parliament controlled by a political party could effectively pursue a suspension of standing
orders and have any alleged contemnor caused to be imprisoned for an alleged offence regardless
that this might be a fabrication of a offence. Hence, there always should be a review process
30 applicable where a person charged with contempt is given his DUE PROCESS OF LAW rights
to challenge this. If this is not provided for then we might in time that a Member of parliament
could end up by some tyrannical government to be imprisoned and held so for in ever the day
while this political party or parties holds power in that House. To await this to happen is not what
should be done. Indeed, with the media eager to publish alleged abuses the Parliament could
35 pursue it to be contempt and a journalist which may have exposed gross abuses may end up
being imprisoned because the ordinary RULE OF LAW is railroaded. Hence, we must attend to
ensuring that any body (Parliament/Courts) that exercise its own CONTEMPT system always
will be subject to a proper revision in judicial manners as is legislated for.
After all, when parents deal with their children in their own home environment for any so called
40 CONTEMPT of parental rule, does not legislation limit the kind of punishment that can be
inflicted upon a child. For example any parent seeking to imprison a child to enforce its own rule
may find to be charged with unlawful imprisonment, etc. Why then should the Courts and the
Parliament be any different in that respect to inflict what might be seen as wacko terms of
imprisonment if not absurd terms of imprisonments or where the term of imprisonment end up to
45 be so that it defies ordinary application of legal provisions, such as the CHADWICK (quoted
below) case ought to serve as a warning?
The kind of invasion into the privacy of a home , where every facet slowly is being regulated
(rightly or wrongly) has seen a shift of the inherited control within the home of an individual and
his/her rights to inflict punishment upon any other person in the same property./house. Why then
50 should the shift if internal disciplinary powers in residential properties not be reflected in the
p 214 9-3-2009
p215
same manner to be applicable within the Courts and Parliaments, that they too have a greater
accountability towards the general public?
.
Regardless of one approved or disapproving of the conduct of Senator Bob Brown during the
5 visit of G. W. Bush to the Federal Parliament, the problem that the Senator was manhandled, as I
understand to have been, ought not be overlooked. Neither that the party/parties in majority in
the Parliament could have used its numbers to have perhaps Senator Bob Brown detained for
undisclosed period of time, say, that he would have to make a personal apology to G. W. Bush,
regardless that this would have been sheer impossible where G. W. Bush since then left the
10 Commonwealth of Australia. It would then be like the CHADWICK case where compliance
might be impossible as to execute, as Senator Bob Brown say held in detention could not (apart
form the fact if the Senator desired to do so) make a "personal" apology with a person who was
not in the prison cell.
I use this example to merely seek to indicate that powers can be grossly misused and abused, and
15 indeed slowly this is emerging from the way the Commonwealth of Australia is operating and
hence, we need to combat this to get further out of hand before it is too late to reign this in.
.
When is a Court operating as a court and not operating as an independent court system free from
any ordinary RULE OF LAW procedures one ought to ask?
20 .
Should a Parliament legislate as to a procedure of "contempt" in all cases, so no court can take it
upon it self to inflict a greater punishment upon an contemnor then otherwise would be
applicable in the ordinary application of RULE OF LAW.
.
25 Lets given an example;
In the USA there is a clear example where about H. Beatty Chadwick was jailed in
Delaware County Prison in April 1995 for failing to obey a court order to turn over $2.5
million for distribution in a divorce settlement. Chadwick maintained he did not have the
money. A succession of judges and courts disagreed. Until now. A retired Delaware
30 County judge says a recent "worldwide search" failed to find any funds and he "strongly
recommends that Mr. Chadwick be released."
.
Despite this Chadwick (69 years old) is now in his thirteenth year in prison.
.
35 What we now find is that a person who if he had robbed a bank or robbed others of 2½ million
dollars would likely have served less time in imprisonment then now allegedly withholding his
own monies, or moneys ordered by the Court to the former wife.
.
It is not about the rights or wrongs about CHATWICK but about how to balance judicial powers
40 to avoid it overstepping ordinary boundaries. CHADWICK might be telling the truth and no
longer have any ability to produce the missing money and then rot in jail for what?
Similarly this power could be abused in the Commonwealth of Australia and the kind of
dictatorship that already exist I have no doubt that we are heading for not just the same but worse
then the CHADWICK case where we already have imprisoned Australians without DUE
45 PROCESS OF LAW as constitutionally required.
.
As a "CONSTITUTIONALIST" I for one am concerned that unless we reign in this "contempt"
powers it will be abused and misused more and more in time to come.
.
p 215 9-3-2009
p216
We have in the Commonwealth of Australia experienced how the High Court of Australia (albeit
unconstitutionally) allowed "ADMINISTRATIVE DETENTION" where there too people are
held in detention without the RULE OF LAW. Come on, if you think it is within the RULE OF
LAW as constitutionally permissible then you obviously lack proper competence in
5 understanding what the Constitution is about!
.
The fact that this so called "AMINISTRATIVE DETENTION" resulted that ordinary
Australians, lawfully residing in the Commonwealth of Australia were put in the concentration
cam styled COMMONWEALTH DETENTION CENTRES itself ought to underline something
10 is terribly wrong.
No person should be subject to dictatorial terms of imprisonment but by DUE PROCESS OF
LAW, as constitutionally permissible.
.
15 QUOTE
Clause 49.-The Senate and the House of Representatives may each of them from time to
time adopt standing rules and orders as to the following matters:
I. The orderly conduct of the business of the Senate and the House of Representatives
respectively:
20 II. The mode in which the Senate and the House of Representatives shall confer,
correspond, and communicate with each other relative to votes or proposed laws:
III. The manner in which notices of proposed laws, resolutions, and other business
intended to be submitted to the Senate and the House of Representatives respectively may
be published for general information:
25 IV. The manner in which proposed laws are to be introduced, passed, numbered, and
intituled:
V. The proper presentation of any proposed laws passed by the Senate and the House of
Representatives to the Governor-General for his assent: and
VI. The conduct of all business and proceedings of the Senate and the House of
30 Representatives severally and collectively.
Mr. WISE: It will be necessary to make an addition here to give full effect to section 8.
By section 8 the two Houses have full power to define the privileges, immunities, and
powers of the Senate and House of Representatives. In section 49 to give effect to that
there ought to be a clause to this effect:
35 Maintain, regulate, and exercise their respective powers, privileges, and immunities.
Mr. BARTON: We have considered that, and I do not think it necessary.
Sir JOSEPH ABBOTT: The clause as it now stands clearly limits the Federal
Parliament in the matters therein mentioned. The Constitution of New South Wales limits
the power of that Parliament to pass standing orders best adapted to the ordinary conduct
40 of the Council and Assembly respectively. On a recent occasion a member was
addressing the Chamber, and a person in the gallery began throwing stones at him on the
floor of the House. The gentleman addressing the chair was a labor member, and he was
reproving another person for having thrown stones at the labor party.
Mr. BARTON: That is a little nearer here than New South Wales.
45 Sir JOSEPH ABBOTT: And a person in the gallery immediately said, "You want a
stone at your head," and he thereupon threw two stones into the Assembly. It struck me-
Mr. PEACOCK: What, the stones struck you?
Sir JOSEPH ABBOTT: No; they did not strike me. But it struck me as I sat there
presiding over that Assembly as an extraordinary thing that the Parliament there could not
50 punish the person guilty of such an outrage. We had to hand him over to the police, and
p 216 9-3-2009
p217
he was brought up at the Police Court and fined twenty shillings. It weakens the power
and it weakens the influence of Parliament that it cannot control disorder within its own
doors and within its own boundaries, and if we accept these six provisions we limit the
power of Parliament to make standing orders for the purposes indicated there. Under the
5 eighth section of the Bill hon. members will see:
The privileges, immunities, and powers of the Senate and of the House of Representatives
respectively, and of the Committees and the members thereof respectively, shall be such
as are from time to time declared by the Parliament, and until declared shall be those of
the Commons House of Parliament of the United Kingdom, and of the Committees and
10 members thereof respectively, at the establishment of the Commonwealth.
But viewing this forty-ninth clause in its restricted form, it appears to me that if we
attempt to pass Standing Orders we can only pass Standing Orders in accordance with
that section. I therefore move:
That all the words after "as" in line 4 be omitted to the end of the clause in line 21, with a
15 view of the insertion of the words "as they or each may deem to be necessary, and all
such rules and orders shall have the force of law."
Perhaps it might be as well to put in [start page 757] what is put in the other constitutions
of colonies, namely:
Upon being assented to by the Governor. Mr. BARTON: I do not like that.
20 Sir JOSEPH ABBOTT: I am not particular about that, but I think at all events the
Federal Parliament ought to have power to make its own standing orders for the purpose
of preventing disorder. When I say this I do not suppose the Commonwealth Parliament
would attempt to exercise control with regard to people out of its own doors. But within
our own dominion we ought to be absolute. If we summon a witness in any of our local
25 Parliaments to the bar of the House, he can decline to give evidence, laugh at us, and
walk away. The case I have just mentioned shows the necessity of Parliament having
control over any disorder.
Mr. TRENWITH: Anything to stop them throwing stones at labor members.
Sir JOSEPH ABBOTT: In Victoria they took the matter in a wholesale manner, and
30 passed an Act of Parliament declaring that the Victorian Legislature had all the powers,
privileges, and immunities of the House of Commons. There was no mincing of matters
there, and it was in consequence of the Parliament of Victoria having arrested a man, and
it having been decided that they had no power to do so, that they immediately declared
they had all of the powers of the House of Commons. The man, I think, was connected
35 with Goldsbrough's Company, and named Glass. He did something, and the Parliament
arrested him, brought him to the bar of the House, and it was declared that they had no
power to do so. In all the decisions of the Privy Council in reference to the powers of
Parliament, the Privy Council has invariably declared that Parliament has no power
outside the very words of the Constitution Act. In the own of Hampton and Fenton, I
40 think, in Tasmania they had the audacity to tell a great colony like Tasmania that so far as
it was concerned it had no greater powers than a municipality.
Mr. BARTON: The Speaker only had the power of a chairman of a public meeting.
Mr. DOUGLAS: Regarding the case alluded to by the hon. member, I happened to be
present when the decision was given. The Privy Council did not declare that the colony
45 had no power, but that any colonial Government, being under a Statute, would have no
power beyond that Statute. The result was that the Tasmanian Parliament passed a law
giving the powers to which the hon. member has made reference.
Sir EDWARD BRADDON: I think that the amendment which the hon. member has
proposed must be considered in connection with clause 8, page 4 of the Bill, which
50 provides:
p 217 9-3-2009
p218
The privileges, immunities, and powers of the Senate and of the House of Representatives
the Commons House of Parliament of the United Kingdom, and of the Committees and
5 the members thereof respectively, at the establishment of the Commonwealth.
If the hon. member's amendment is to include the power of punishment it will scarcely be
necessary. The effect of the decision of the Privy Council to which my hon. friend has
alluded must be read in connection with the Constitutions of the several colonies, which
were affected at the time of the pronouncement of these decisions. In New South Wales,
10 and I think in Tasmania, what exists at the present time is a Legislature as distinct from a
Parliament. A Sovereign Parliament has punishing power. A Legislature which is created
by Act of Parliament, and with the equivalent powers conferred upon it, as they are
conferred by section 8, has, in the case of New South Wales and Tasmania, no power
except such as can be gathered from the necessary implication of the words of the
15 Constitution. In the present instance we have passed a clause which states that the [start
page 758] privileges, immunities, and powers of the Federal Parliament shall be those
declared by the Parliament, and until a declaratory Act is passed the privileges,
immunities, and powers of the House of Commons will be accepted. The power of
punishment exists in the House of Commons, and the same power would exist in the
20 Parliament of the Commonwealth under clause 8. An outrage committed within the walls
of the Federal Parliament could be punished in the same way as in the House of
Commons. If a man ventured to throw a stone into the Imperial Parliament, though
unfortunately the thrower is not always caught, it would be contempt of Parliament, and
that would be a matter to be dealt with by the Commons according to the powers,
25 privileges, and immunities it possesses.
Sir GEORGE TURNER: Has not the House of Commons power to make Standing
Orders?
Mr. BARTON: Yes.
Sir GEORGE TURNER: Then where is the necessity for this clause?
30 Mr. BARTON: The necessity for it does not arise out of the powers of the Standing
Orders, which are merely regulations for the conduct of the business within the House,
but out of the power of punishment in cases where contempt is exercised by persons
within the walls of Parliament. If, for instance, a person throws a stone and the Sergeant-
at-Arms can catch him he can be brought before the Parliament and can be imprisoned or
35 dealt with otherwise for contempt. Under the operation of the clause similar action can be
taken by the Federal Parliament, and that goes far enough. It does not require Standing
Orders to deal with the powers, privileges, and immunities of Parliament. They exist, and
if you made Standing Orders you would really only limit them. Under the Bill we have
taken the powers, privileges, and immunities possessed by the House of Commons.
40 Sir JOSEPH ABBOT: Then why do you want clause 49?
Mr. BARTON: I have already explained that, but I will return to it if my hon. friend
wishes. I say in the meantime you have already taken the powers, privileges, and
immunities of the House of Commons, and there is no necessity to pass Standing Orders
with reference to them. They do not need definition in the Standing Orders; they are not
45 the subject of definition in the Standing Orders; they are totally different in their whole
circuit to the Standing Orders which relate to the conduct of the business of each House
and its transactions with the other House. That is not a question of the powers, privileges,
and immunities of the House of Commons, which exist independently of the Standing
Orders. They have a historical application in the House of Commons, and they can be
50 applied to the Federal Parliament.
p 218 9-3-2009
p219
Mr. TRENWITH: Could they not make Standing Orders?

Mr. BARTON: The Federal Parliament, of course, will have power to make Standing
Orders for the regulation of its internal business.
Mr. TRENWITH: If we adopt clause 49 do we not restrict the power of the Federal
5 Parliament with regard to any Standing Orders they may make?
Mr. BARTON: No. You do not restrict them because you have the clause in the most
general terms. My hon. friend wishes the clause to read:
The Senate and the House of Representatives may each of them from time to time adopt
Standing Orders as they or each may deem to be necessary, and such Standing Orders
10 shall have he force of law.
That is altogether too wide, as the Standing Orders would then have the effect of law
outside the House.
Mr. PEACOCK: Hear, hear. That is the point.
Mr. BARTON: It is the point to which I think the hon. member was anxious to come.
15 What we have done is to adopt a clause giving the Federal Parliament power to pass
Standing Orders for the con- [start page 759] duct of their business, and so that there
should be no doubt the power has been taken in the widest possible words. The House of
Commons does not make its Standing Orders by reason of its powers, privileges, and
immunities, but by virtue of its inherent powers as a sovereign Parliament. The Standing
20 Orders are for the internal regulation of the House of Commons, but my friend would like
to say that the Federal Houses may make Standing Orders for any matter it may deem
necessary. This would have the effect of passing laws without the royal assent. I ask my
friend if the clause as it stands is not sufficient.
Mr. HIGGINS: I am strongly of the opinion that the amendment is too wide. Section 8
25 gives this Parliament all the powers, privileges and immunities which the House of
Commons has and members also, and we want no more than that. Clause 49 merely
makes assurance doubly sure by providing that each House of Parliament shall make
Standing Orders for the conduct of its own business, and if the amendment be carried as
proposed it means that one House of Parliament is able to make laws although the
30 Constitution means that both Houses must concur in making laws. If one House can
make laws it will have a very important bearing on the liberty of the subject and the
liberty of the press. The words in the amendment are:
As each of them may doom to be necessary, and such Standing Orders shall have the
force of laws.
35 There is no question which comes up more than that of libel, and it is important to
see that one House of Parliament shall not make any law affecting the freedom of
the press in referring to the conduct of members. Any such law ought to be framed by
both Houses; but the effect of this is that one House of Parliament is able to make laws to
alter the law of libel and such matters. I think the Speaker of New South Wales will see
40 there is no need for this.
Sir JOSEPH ABBOTT: I do not agree with Mr. Barton, when he states that this House
of Parliament will have inherent powers. The Privy Council has frequently declared
that colonial Parliaments have no inherent powers whatever. They only have the
powers given to them by the Constitution Act. I think that with clause 8 there is no need
45 for clause 49.
Mr. PEACOCK: They have not a clause like clause 8 in their Constitution.
Sir JOSEPH ABBOTT: Then where is the necessity for clause 49? Mr. Higgins says
all kinds of things might be done with regard to the press. I have such a regard and
love for the press that I cannot realise that Parliament would do anything to injure
p 219 9-3-2009
p220
that great body. But the hon. member forgets that the eighth clause gives Parliament
power to do what it likes with the press.
Mr. HIGGINS: But both Houses.
Sir JOSEPH ABBOTT: No. Clause 8, which has been passed, provides that the:
5 Privileges, immunities, and powers of the Senate and of the House of Representatives
the Commons House of Parliament of the United Kingdom.
No one knows what the powers of the House of Commons are. It is a fact that within the
10 last thirty years they have given up the practice of summoning to the bar members of the
press for matters of libel. The hon. member who is so anxious and careful about the press-
Mr. HIGGINS: And the outside public.
Sir JOSEPH ABBOTT: I ask the hon. member who is in charge of the Bill whether
there is any necessity for clause 49, having regard to clause 48. I am anxious that the
15 powers of Parliament should be limited to within its walls.
outside public-that power which does [start page 760] not exist in the House of
Commons. In Stockdale v. Hansard it was held that the courts of law were not
precluded by a resolution of the House of Commons from inquiring into the legality
20 of the act complained of, and in delivering judgment in the Court of Queen's Bench,
Patterson (Justice) drew a distinction between powers -especially the power of
invading "the rights of others"-and privilege. These powers are matters of common
law in England, and are liable to be restrained by the Court. Under the proposed
amendment, the House of Representatives could pass a resolution that would have the
25 force of law to an extent denied to be a similar resolution in the House of Commons.
Sir JOSEPH ABBOTT: In deference to the opinion expressed on the other side, I am
prepared to withdraw my amendment.
Leave given.
Clause as read agreed to.
30 END QUOTE
.
QUOTE
The civil sanction for contempt (which is typically incarceration in the custody of the
sheriff or similar court officer) is limited in its imposition for so long as the disobedience to
35 the court's order continues: once the party complies with the court's order, the sanction is
lifted. The contemnor is said to "hold the keys" to his or her own cell, thus conventional
due process is not required. The burden of proof for civil contempt, however, is a
preponderance of the evidence, and punitive sanctions (punishment) can only be imposed
after due process.
40 END QUOTE
.
http://www.foxnews.com/story/0,2933,215919,00.html
QUOTE
45 Are Civil Courts In Contempt of Justice?
Tuesday, September 26, 2006
By Wendy McElroy
 PRINTER FRIENDLY VERSION
p 220 9-3-2009
p221
Corporate lawyer H. Beatty Chadwick has passed 11 years in a Pennsylvania county

jail on a contempt of civil court charge relating to his divorce.
He 'refuses' to produce $2.5 million that may not exist. If he were in the federal system, the
maximum penalty for contempt would be 18 months. As it is, Chadwick -- who has never
5 been convicted of a crime or faced a jury -- is indefinitely imprisoned without possibility of
parole.
Has Chadwick fallen through a crack in the legal system or is he proof that family courts
are out-of-control, especially regarding 'contempt of court' power?
The 'legal crack' theory immediately confronts a problem. According to the Chicago
10 Tribune, the case has produced a "dozen pleas to the county courts, nine to state appeals
courts, nine to the Pennsylvania Supreme Court, six to the nearby federal court, four to the
Third Circuit Court of Appeals and two to the U.S. Supreme Court."
That's one massive and meticulously sustained 'crack.'
The 'out-of-control' theory immediately confronts a question: what act of contempt could
15 possibly elicit such draconian punishment?
The answer begins in 1977 when Chadwick (then 39 years old) married the former Barbara
Jean Crowther. She filed for divorce in late 1992. Depending on which account is credited,
Chadwick is either the victim of a vindictive wife or he is domineering husband who vowed
that his wife would never see a penny.
20 In 1994, Barbara Chadwick informed the court that her husband had wired $2.5 million out
of the country. The judge ordered Chadwick to retrieve the funds and place them in a court-
controlled account until the divorce was settled. Chadwick claimed that most of the money
had been lost in a foreign business deal gone bad; however, a small fraction of the money
showed up in a U.S. bank under Chadwick's name. The judge ordered his imprisonment on
25 civil contempt until the funds were produced.
In civil proceedings, such as divorce, a charge of contempt usually occurs in two
circumstances. First, a failure to attend court proceedings despite a subpoena. Second, the
failure to comply with a court order. If imprisonment is ordered, the 'sentence' can last as
long as the disobedience continues or until the 'contempt limitation' of the particular court
30 system is reached; some courts have no limit. Since the prisoner is considered to 'hold the
key' to his own freedom, his constitutional right to due process is not seen to apply.
Chadwick was imprisoned in April 1995.
Traditionally, contempt of court 'sentences' continue only as long as there is a reasonable
expectation of coercing compliance. Otherwise, the imprisonment becomes a punishment,
35 which is a criminal sanction beyond the authority of civil courts.
A 1974 New Jersey Supreme Court case finding (Catena v. Seidl) is often cited regarding
civil contempt. "It is abhorrent to our concept of personal freedom that the process of civil
contempt can be used to jail a person indefinitely, possibly for life, even though he or she
refuses to comply with the courts order….[C]ontinued imprisonment may reach a point
40 where it becomes more punitive than coercive and thereby defeats the purpose of the
commitment."
In 2002, U.S. District Court Judge Norma Shapiro agreed with New Jersey and ordered
Chadwick's release on the grounds that continued imprisonment would not produce the
money. Judge Samuel Alito -- now of the Supreme Court but then with the Third U.S.
45 Circuit Court of Appeals -- overturned Shapiro and found instead that Chadwick's
incarceration should continue as long as the courts believed he was able to pay.
His ability to do so was called into question last year. A. Leo Sereni, a former president
judge in Pennsylvania, was appointed to track Chadwick's money. Eighteen months and
two accounting firms later, Sereni reported no trace beyond what had been discovered a
p 221 9-3-2009
p222
decade before. Money had been transferred to Europe and a small fraction had reappeared
in U.S. accounts. Sereni concluded, "most of it...nowhere."
He recommended Chadwick's release, stating, "My God -- if he had stolen $2 million, he
would have been out a couple of years ago." In February 2006, the court ruled that Sereni
5 had "overstepped his bounds," and Chadwick's incarceration continued.
The ex-wife's attorney, to whom much of any materializing money would go, has produced
recent correspondence from Chadwick to a friend about setting up a numbered bank
account in the Cayman Islands. Chadwick claims such an account would merely protect
assets -- e.g. his future social security checks.
10 At this point…does it matter?
Chadwick has been imprisoned for over a decade without trial or being found guilty of a
crime. That fact alone should bring into question whether imprisoning people for contempt
is an appropriate court power.
The power is rooted in British common law.
15 Legal systems that do not share a common law background, which constitute the majority
of countries in the world, do not typically grant this authority to a judge.
Indeed, the ability to summarily imprison is one of the reasons that the U.S. judiciary is so
politically powerful. It allows even civil court judges to bypass the Constitution.
I believe that the power of imprisonment without due process should be stripped from
20 judges. At minimum, any person imprisoned on contempt should -- at some well-defined
point -- have the right to stand before a jury that considers two questions of fact. Is the
person able to comply? Does a continuing sanction serve a legally valid purpose?
Ask yourself: what purpose does Chadwick's imprisonment serve?
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent
25 Institute in Oakland, Calif. She is the author and editor of many books and articles,
including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century"
(Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.
END QUOTE
.
30 http://en.wikipedia.org/wiki/Contempt_of_court
QUOTE
.
Contempt of court
From Wikipedia, the free encyclopedia

35 Jump to: navigation, search
Contempt of court is a court ruling which, in the context of a court trial or hearing, deems
an individual as holding contempt for the court, its process, and its invested powers. Often
stated simply as "in contempt," or a person "held in contempt," it is the highest remedy of a
judge to impose sanctions on an individual for acts which excessively or in a wanton
40 manner disrupt the normal process of a court hearing.
A finding of contempt of court may result from a failure to obey a lawful order of a court,
showing disrespect for the judge, disruption of the proceedings through poor behavior, or
publication of material deemed likely to jeopardize a fair trial. A judge may impose
sanctions such as a fine or jail for someone found guilty of contempt of court. Typically
45 judges in common law systems have more extensive power to declare someone in contempt
than judges in civil law systems.
In civil cases involving relations between private citizens, the intended victim of the act of
contempt is usually the party for whose benefit the ruling was implemented, rather than the
court itself.
p 222 9-3-2009
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A person found in contempt of court is called a "contemnor." To prove contempt, the

prosecutor or complainant must prove the four elements of contempt. These are (1)
existence of a lawful order, (2) the contemnor's knowledge of the order, (3) the contemnor's
ability to comply, and (4) the contemnor's failure to comply.
5 Contents
[hide]
 1 England and Wales
 2 Direct Contempt
 2.1 Criminal contempt of court
10  2.2 Strict liability contempt
 2.3 Civil contempt
 3 United States
 4 Books about Contempt of Court
5 See also
15 .
[edit] England and Wales
In English law (a common law jurisdiction) the law on contempt is partly set out in case
law, and partly specified in the Contempt of Court Act 1981. Contempt may be a criminal
or civil offence. The maximum sentence for criminal contempt is two years.
20 .
[edit] Direct Contempt
Disorderly, contemptuous, or insolent behavior toward the judge while holding the court,
tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted
as "direct" contempt. The term "direct" means that the court itself cites the person in
25 contempt by describing the behavior observed on the record. Direct contempt is distinctly
different from indirect contempt, wherein another individual affected by a court order may
file papers alleging contempt against a person who has willfully violated a lawful court
order.
.
30 [edit] Criminal contempt of court
The Crown Court is a court of record under Supreme Court Act 1981 and accordingly has
power to punish for contempt of its own motion. The Divisional Court has stated that this
power applies in three circumstances:
 Contempt "in the face of the court" (not to be taken literally; the judge does not
35 need to see it, provided it took place within the court precincts or relates to a case
currently before that court);
 Disobedience of a court order; and
 Breaches of undertakings to the court.
Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for
40 contempt.
Where it is not necessary to be so urgent, or where indirect contempt has taken place the
Attorney General can intervene and the Crown Prosecution Service will institute criminal
proceedings on his behalf before the Divisional Court of the Queen's Bench Division of the
High Court of Justice of England and Wales (Criminal Division).
45 Magistrates' Courts are not courts of record, but nonetheless have powers granted under the
Contempt of Court Act 1981. They may detain any person who insults the court or
otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being
p 223 9-3-2009
p224
either admitted or proved the court may imprison the offender for a maximum of one
month, fine them up to GB£2500, or do both.
It is contempt of court to bring an audio recording device or picture-taking device of any
sort into an English court without the consent of the court.
5 It is not contempt of court (under section 10 of the Act) for a journalist to refuse to disclose
his sources, unless the court has considered the evidence available and determined that the
information is "necessary in the interests of justice or national security or for the prevention
of disorder or crime."
.
10 [edit] Strict liability contempt
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything
which creates a real risk that the course of justice in proceedings may be seriously
impaired. It only applies where proceedings are active, and the Attorney-General has issued
guidance as to when he believes this to be the case, and there is also statutory guidance.
15 The clause prevents the newspapers and media from publishing material that is too extreme
or sensationalist about a criminal case until the trial is over and the jury has given its
verdict.
Section 2 of the Act limits the common law presumption that conduct may be treated as
contempt regardless of intention: now only cases where there is a substantial risk of serious
20 prejudice to a trial are affected.
.
[edit] Civil contempt
In civil proceedings there are two main ways in which contempt is committed:
1. Failure to attend at court despite a subpoena requiring attendance. In respect of the
25 High Court, historically a writ of latitat would have been issued, but now a bench
warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual,
and imprisonment until the date and time the court appoints to next sit. In practice a
groveling letter of apology to the court is sufficient to ward off this possibility, and
in any event the warrant is generally 'backed for bail' i.e. bail will be granted once
30 the arrest has been made and a location where the person can be found in future
established.
2. Failure to comply with a court order. A copy of the order, with a "penal notice" -
i.e. notice informing the recipient that if they do not comply they are subject to
imprisonment - is served on the person concerned. If, after that, they breach the
35 order, proceedings can be started and in theory the person involved can be sent to
prison. In practice this rarely happens as the cost on the claiming of bringing these
proceedings is significant and in practice imprisonment is rarely ordered as an
apology or fine are usually considered appropriate.
.
40 [edit] United States
Under American jurisprudence, acts of contempt are divided into two types.
"Direct" contempt is that which occurs in the presence of the presiding judge (in facie
curiae), and may be dealt with summarily: the judge notifies the offending party that he or
she has acted in a manner which disrupts the tribunal and prejudices the administration of
45 justice, and after giving the person the opportunity to respond, may impose the sanction
immediately.
"Indirect" contempt occurs outside the immediate presence of the court, and consists of
disobedience of a court's prior order. Generally a party will be accused of indirect contempt
p 224 9-3-2009
p225
by the party for whose benefit the order was entered. A person cited for indirect contempt is
entitled to notice of the charge and an opportunity for hearing of the evidence of contempt,
and to present evidence in rebuttal.
Contempt of court in a civil suit is generally not considered to be a criminal offense, with
5 the party benefiting from the order also holding responsibility for the enforcement of the
order. Some cases of civil contempt, however, have been perceived as hate crimes; for
example, if the winning plaintiff is a Catholic refugee from Northern Ireland and the
contemptor perpetrates the offense on Saint Patrick's Day.
Sanctions for contempt may be criminal or civil. If a person is to be punished criminally,
10 then the contempt must be proven beyond a reasonable doubt, but once the charge is
proven, then punishment (such as a fine or, in more serious cases, imprisonment) is
imposed unconditionally. The civil sanction for contempt (which is typically incarceration
in the custody of the sheriff or similar court officer) is limited in its imposition for so long
as the disobedience to the court's order continues: once the party complies with the court's
15 order, the sanction is lifted. The contemnor is said to "hold the keys" to his or her own cell,
thus conventional due process is not required. The burden of proof for civil contempt,
however, is a preponderance of the evidence, and punitive sanctions (punishment) can only
be imposed after due process.
.
20 [edit] Books about Contempt of Court
 Scarce, Rik. "Contempt of Court: A Scholar's Battle for Free Speech from behind
Bars" (2005) (ISBN 0759106436).
.
[edit] See also
25  Contempt of Congress - in the United States, the same crime but against the U.S.
Congress or a state legislature.
 Contempt of Parliament - a similar concept to Contempt of Congress, but a power of
Parliament
 Perjury - lying to the court is a separate criminal offence in most jurisdictions, but is
30 analogous to contempt in many ways.
 Perverting the course of justice and Obstruction of justice - A criminal offence where
a person seeks to subvert court proceedings or official investigations.
Retrieved from "http://en.wikipedia.org/wiki/Contempt_of_court"
Categories: Common law | Civil law
35 END QUOTE
.
Mr Francis James Colosimo for one has grave concerns as to the "CONTEMPT" powers to be
used in a manner that no longer reflects community standards and what ordinary would be
applicable as punishment or enforcement powers if the person subjected to contempt powers
40 were to have committed an offence in ordinary life.
.
Mr. HIGGINS: I understand the amendment is this, that a judge ought not under any
circumstances to be removed from office except for misbehavior.
45 Mr. SYMON: Or incapacity.
Mr. HIGGINS. Or incapacity. Who is going to be the judge of incapacity or misbehavior?
Mr. SYMON: The Parliament.
p 225 9-3-2009
p226
Mr. HIGGINS: Is the hon. member willing to say that if in the opinion of both
Houses a judge is guilty of incapacity or misbehavior he shall be removed.
Mr. SYMON: Yes.
Mr. HIGGINS: Then the end of it all is to leave it to the two Houses; and my friend
5 the Attorney-General has urged that the final power should be left in the Federal
Parliament. It is true that there is a distinction between unity of Government and a
Federation, and we must keep this bench as independent and strong as possible,
especially as it has to decide between the States and the Federation and upon
encroachments by the Federation upon the States. I admit all that; but what is the
10 protection given in America? Judges can only be removed by impeachment. That means
that one House brings a charge before the other House, and a judge cannot be removed
unless both Houses agree.
Mr. BARTON: The Senate alone has sufficient power to remove.
Mr. HIGGINS: Yes; but one House in the United States is able to remove upon
15 indictment by the other House. I think that the British system affords sufficient safety. I
do not think that there is any practical danger about it. You really have eventually to
come to the judgment of both Houses of Parliament, no matter how you reduce it; and
having reduced it to that, my friends say "Let it be a joint address." There is no difference
of principle. We all want the judges to have as strong and independent a position as we
20 possibly can give them. I hope we shall adhere to the British Constitution so far as we
can, because we are more used to it. May I point out to Mr. Kingston that his amendment
will not leave it to the judgment of the Houses of Parliament as to whether there has been
misconduct or not. It will put a burden on them first to prove in a court of law that there
has been misconduct or incapacity, and Secondly to pass an address. I say then it will be
25 almost impossible to remove a judge if we put in that he shall only be removed on an
address of both Houses of Parliament, leaving it to the Houses to prove inca- [start page
954] pacity or misbehavior if the judge sues for his salary. It should be sufficient to say:
If both Houses are of opinion that he has been guilty of misconduct or misbehavior.
I shall have to vote against the amendment.
30 Mr. FRASER: I endorse the amendment of Mr. Kingston. If the removal of a judge is to
be left to Parliament it would depend how this clause reads whether the Parliament would
remove a judge. They would want to have it clearly set out on what grounds they could
remove him. They would not dare to remove him unless he was guilty of something or
other. Therefore Parliament is the Supreme Court in this case. I do not follow the
35 argument at all that there is no necessity to take this precaution, because a judge of the
Federal Court will have very different duties to perform to the judge of the ordinary court.
There may be a momentous State question to be settled, and it is absolutely necessary for
the future of the Commonwealth that the judges should be in an independent position.
Sir WILLIAM ZEAL: What more do you want than you have in the clause?
40 Mr. FRASER: I want everything possible.
Sir WILLIAM ZEAL: It is here.
Mr. FRASER: It is not. Parliament may be in a hurry; the may be misinformed; the
Ministry of the day may tell them a bushel of lies about a judge. I see no danger in
making the amendment; there are all sorts of good reasons for carrying it, and there is no
45 justification for rejecting it.
Mr. DOBSON: It is rather difficult to answer the well-put arguments of Mr. Kingston,
Mr. Symon, and Mr. Barton, but such judgment as I have tells me they are in error, and
have not sufficiently answered the strong arguments of Mr. Isaacs. The danger they wish
to guard against is not, to my mind, so great as the danger they are creating, of having a
50 Parliament turned into a kind of tribunal to try whether a judge has been guilty of
p 226 9-3-2009
p227
misconduct or incapacity. There will be caused an enormous amount of litigation, and the
judge may have the right of appeal to the Privy Council on some technical point, even
when the whole Commonwealth might, know that, in the best interests of justice, that
judge ought to be removed.
5 Mr. SYMON: Would not Parliament be turned into a tribunal just as much the other
way?
Mr. DOBSON: No; I think not. For 200 years there has not been a single instance of
Parliament having tried to do the slightest injustice to the judges.
Mr. SYMON: Then what is the harm of the amendment?
10 Mr. DOBSON: A judge will not be found guilty of embezzlement by a jury, or of
any other crime; that is a very simple question. But a judge may act in such a way as
hardly to be guilty of misconduct or incapacity, and yet it may be most undesirable
that he should continue to be a judge. What is the first thing that goes wrong in the
machine called man? The brain. A judge gets a kink in some direction in that brain,
15 yet he might be in other points a most upright man-a most honest judge; and yet
that small disturbance of his brainpower might render it undesirable that he should
still sit on the bench.
Mr. SYMON: Then would not that be incapacity?
Mr. DOBSON: It would be a very nice point which the Parliament would be called upon
20 to decide judicially, and the judge would have an appeal against their decision. That is
more undesirable than the present clause, which comes from the Canadian Act, and Mr.
Barton is hardly consistent when he says that Canada is not a Federation, or at least is not
such a Federation as gives us an authority for the clause. He turns then to the United
States, which I think still less to the point, while the quotation which Mr. [start page 955]
25 Isaacs read to us exactly sets out the difficulty which will arise if we adopt the
amendment of Mr. Kingston. The judge removed in Tasmania thirty or forty years
ago did nothing very dreadful, but as you walked down to your office you heard that
judge so and so was being sued for his milk bill, and the next day you saw a bailiff
waiting at the judge's front gate; in fact the judge was like Micawber, his assets were not
30 quite equal to his liabilities; and he brought the administration of justice into disrepute
and contempt. It is much better to leave with the Federal Parliament a case of that sort,
which may only happen perhaps once in fifty years or so, where some little disturbance of
a judge's brain makes it most undesirable that he should continue to be a judge. I shall
vote for keeping the Canadian clause as it is in the Bill, and shall not be found supporting
35 Mr. Kingston.
Mr. DOUGLAS: I take the exactly opposite view from Mr. Dobson. I think we are under
an exceedingly great obligation to Mr. Kingston for having introduced this amendment. It
is a most important one, and the quotation made by Mr. Isaacs in reference to Great
Britain, is entirely out of place as regards this Federation.
40 Mr. DOBSON: Very much in point.
Mr. DOUGLAS: Here the judges are called upon to express their views upon an Act of
Parliament. In England the judges do not express any opinion as to the legality or
otherwise of an Act of Parliament, because there, however queer or undesirable an Act of
Parliament may be, as long as it is an Act of Parliament the judges have to obey it, right
45 or wrong. Here, however, the judges are called upon to express opinions that may be
exceedingly adverse to the views of Parliament, but which may be right, and we know
that in a recent decision in America the opinion given by the judges was contrary to the
views of Parliament or of the Congress. If these judges had held their offices as proposed
by Mr. Kingston, they could not be removed. The words which Mr. Kingston proposed
50 would prevent such a removal unless misconduct or incapacity were proved as facts. The
p 227 9-3-2009
p228
hon. member Mr. Higgins asks how we are to prove it. It is easy to prove a fact. If a
judge is incapacitated from want of brain power he ought to be removed. If he is
guilty of misconduct, either moral or judicial, he ought to be removed. These are
questions of fact, and they ought to be laid before Parliament in some way or other before
5 a judge should be removed. Therefore I hope that those who are connected with the legal
profession as I have been will support the view of Mr. Kingston coupled with the slight
amendment of Mr. Symon, and assist in carrying it out. We cannot make these judges too
independent of outside feeling. They should be upright, and independent and fearless in
doing their duty, which they could not be in matters involving party politics or any
10 particular laws passed by the Senate which were unconstitutional.
.
Again;
If a judge is incapacitated from want of brain power he ought to be removed. If he is
guilty of misconduct, either moral or judicial, he ought to be removed.
15 .
Yet, as Mr Francis James Colosimo understand it Kirby J having been appointed to the High
Court of Australia then declared that he had been living in a homosexual relationship for a long
time. Mr Francis James Colosimo understands that he did so in unlawful manner, as it appeared
to have been unlawful in N.S.W.
20 We therefore found that a judge could be removed for, so to say, not having paid his "MILK" bill
but a judge allegedly living in breach of law somehow was not a disrepute to the judiciary and
this despite this in Mr Francis James Colosimos view was no less a law-breaking conduct then
others do who appear before the Courts for their legal indiscretions, if one could claim this to
have been at all where ordinary it is demand that people know the laws, regardless if they do not
25 know it, but are deemed to know the law, where here we have a lawyer already being then a
judge of a Court in NSW somehow then getting away with it all while himself then dealing with
offenders.
.
Likewise the issue is where we have now a report revealed in recent times in The Australian,
30 how judges would use their own "contemporary" applications to the Constitution in their
rulings. To Mr Francis James Colosimo this is gross misbehaviour but unlikely would the
Parliament (controlled by Government members) want to act against a High Court of Australia
where it abuses its judicial powers in favour of the Federal Government.
.
35 What we therefore see is that members of the judiciary may be acting in contempt of their
judicial powers and limitations but can get away with it while others who may be deemed to do
so in a farm more limited manner could be locked up for ever of the day.
Hence, we need to have appropriate legislation in place that guarantees the rights of any person
placed in detention for any form of contempt that this person has a legal avenue to have this
40 reviewed as like any other criminal conviction.
.
Mr. BARTON: At first I thought it would be necessary to have some provision of this
sort, but now I think it is unnecessary. In the clause it is prescribed that [start page 1183]
45 an elector "shall have only one vote"; as to the Senate and as to the House of
Representatives I intend to move, on the recommittal of the clause, that the matter shall
be turned into a direct prohibition; that is, that "no elector shall vote more than once." A
breach will be a Statutory misdemeanor, and the offender can be punished, this being an
Imperial Statute, in the same way as he would be for a breach of any other Imperial
50 Statute applying to the colonies, such as the merchant shipping laws. Lest there should be
p 228 9-3-2009
p229
any doubt in connection with the giving of a vote, when there is a distinct law against it,
there is a passage in Russell on "Crimes," which the legal members of the Convention
will be satisfied with. It is in the fifth edition, page 192:
Where an offence is not so at common law, but made an offence by Act of
5 Parliament, an indictment will lie where there is a substantive prohibitory clause in
such Statute, though there be afterward a particular provision and a particular
remedy given. Thus, an unqualified person may be indicted for acting as an attorney
contrary to the 6 and 7 Vict., c. 73, a. 2, although sec. 35 and sec. 36 enact that in
case any person shall so act he shall be incapable of recovering his fees, and such
10 offence shall be deemed a contempt of court, and punishable accordingly.
That is to say, although the Statute provides a distinct means of punishment, yet if by the
disregard of the prohibition a misdemeanor is committed, a court can convict the offender
of that misdemeanor and may fine or imprison him. The passage continues:
And it is stated as an established principle that when a new offence is created by an
15 Act of Parliament and a penalty is annexed to it by a separate and substantive
clause, it is not necessary for the prosecutor to sue for the penalty, but he may
proceed on the prior clause on the ground of its being a misdemeanor; and wherever
a Statute forbids the doing of a thing, the doing of it wilfully, although without any
corrupt motive, is indictable.
20 Wherever the Statute, as I intend to ask the House to make it in this case, says that no
elector shall vote more than once, there is a distinct prohibition, and voting more than
once wilfully will be a crime and misdemeanor, and the courts will be able to punish by
fine or imprisonment. They will have the distinct power. There is in all of these colonies
an electoral law, and power to alter it, until Parliament otherwise provides, and if there
25 are not distinct provisions for punishment for such offences, it is still in the power of the
State law to subject the offenders to such punishment as it prescribes. But even if that
were not done, the case is distinctly met by the Statutory prohibition, which will be
imposed by the form in which we propose to put it, and, I think, my hon. friend will agree
that his new clause will not be necessary.
30 Mr. ISAACS: I suppose you propose to put in words to make it a misdemeanor.
Mr. BARTON: If necessary; but where the statute expressly forbids it is a misdemeanor
without further words.
Dr. QUICK: Without any corrupt motive is it indictable?
Mr. BARTON: Although there may be no corruption in the doing of the act, if it is done
35 intentionally it is indictable.
.
Mr Francis James Colosimo for one found that Mr G. H. Schorel-Hlavka was charged under
CRIMINAL LAW with "FAILING TO VOTE" and subsequently twice convicted only then to
have both convictions overturned on appeal.
40 In this case, he proved that the Federal elections in 2001 and 2004 were unconstitutional as all
the writs were defective and so he had every right not to vote as there were no constitutional
valid lections held. Also, he made clear that even if valid elections were held then
constitutionally the Commonwealth of Australia had no legislative powers to force any elector to
vote.
45 .
Again;
intentionally it is indictable.
.
50 Commonwealth of Australia Constitution Act 1900 (UK)
p 229 9-3-2009
p230
80 Trial by jury
The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held
in the State where the offence was committed, and if the offence
5 was not committed within any State the trial shall be held at such
place or places as the Parliament prescribes.
.
We now find however that time and again defendants are denied "TRIAL BY JURY" even so
they request this (as I did when Mr G. H. Schorel-Hlavka challenged the validity of Family
10 Court orders) and even so it was "intentionally".
In his case, the Family Court refused his right to "Trail by Jury" even so it held that he had
"deliberately" refused to comply with its orders to provide access of his daughter to her mother.
He relied upon the validity of the Supreme Court of Victoria orders which could not be
circumvented by the Family Court of Australia. Dawson J of the High Court of Australia (1994)
15 then argued that the Family Court of Australia could do so because of the Cross Vesting Act,
this, even so no application within the Cross Vesting Act was then ever made! Somehow
mysteriously the Cross vesting Act was deemed applicable without being invoked by either
party. Subsequently, in HCA 27 of 1999 the Cross Vesting Act was deemed unconstitutional, and
so the Parliament legislated to (unconstitutionally) retrospectively legislate that invalid Court
20 orders were deemed to be valid.
This caused Mr G. H. Schorel-Hlavka to then commence to research constitutional matters.
.
There could be no doubt that by hindsight he was right and wrongly denied TRIAL BY JURY
but that did not avoid the fact then that the courts manipulated its powers and he ended up in
25 prison, where the Court made clear he had to comply with Court orders (even so unconstitutional
– just that part they left off, obviously) yet, when the matter returned before the Court a few
years later but now the mother being the contemnor then the Court held that the mother could
ignore the Court orders if she desired to do so. Which underlined the abuse of judicial powers.
After all a Court order should apply to both parties in equal manner!
30 And, while the Supreme Court of Victoria had put in place specific court orders, as well as made
the child, on his application, a WARD of the SUPREME COURT and hence could not be
transferred to a statutory Court such as the Family Court of Australia, and despite the medical
evidence that the child was sexual abused during access at her mother (and so also his daughters
sister had been protected by a Children Court orders against the mothers husband in regard of
35 sexual abuse, the Family Court nevertheless used his imprisonment to force the child to go back
on access, and so again being sexual abused.
.
This is where the Courts powers are used by madman, so to say, where the Court argues to act in
the interest and wellbeing of the child and then deliberately place the child in a sexual abuse
40 situation contrary to the very Supreme Court of Victoria court orders, which orders the Family
Court of Australia deemed it could overrule, regardless it lacked any constitutional powers to do
so.
.
Here we have the evidence how the DUE PROCESS OF LAW as constitutionally permissible is
45 being railroaded and how judicial power abuse is shown to be extraordinary where under the
pretext of acting in the interest of the child the Court actually does precisely the opposite, but
fabricate judgments to make it appear to be otherwise.
.
p 230 9-3-2009
p231
The Hon. J.H. CARRUTHERS (New South Wales)[9.6]: There are one or two matters
which I should have liked to have had further elucidated by the hon. member who has
submitted this proposition to the Committee. He speaks of the proposed federal
constitution as a foreign institution. I should like him to tell us where this foreign
5 institution has been put into practical operation in the shape which he proposes. I should
like to know to what country we could go for experience of elective ministers where the
constitution is established under the Crown-where you have as the supreme head, not a
president elected by the people or by the parliament, but a monarch. It appears to me that
my hon. friend has lost sight of this essential of our preposed constitution, that we, first
10 of all, insist that it should be under the Crown. Theoretically, this may be a sham; but,
term it what you like, the mandate of the people is that the semblance of authority is to
proceed from the Crown itself. My hon. friend says that these ministers or executive
officers are to derive their policy from the parliament. We know very well that our
experience of parliaments is that they change their policy very frequently.
15 An HON. MEMBER: So do ministers!
The Hon. J.H. CARRUTHERS: We must therefore have it as a condition of the
proposal put forward that the ministers of education, of lands, of railways, and whatever
ministers you choose, to make must change their policy from week to week in order to
keep in touch with the parliament which elects them.
20 The Hon. Sir R.C. BAKER: Do they not do that now?
The hon. J.H. CARRUTHERS: Even if they do, it is upon rare occasions. It is not the
rule, but the exception to the rule. my hon. friend's proposal, however, would make it the
established rule that ministers should be the agents of parliament, to give executive effect
to its wishes and directions. Suppose the houses of parliament differed as to their policy,
25 the senate desiring one policy and the house of repre- [start page 792] sentatives another,
which should the ministry follow? More than that, does not the hon. member know that
one-half of the work of an executive body, be it a cabinet government or any other form
of government, consists in administrative official acts which do not come under the
cognisance of parliament at all? How, too, are you to reconcile the existence of cordiality
30 and agreement which is necessary in order that these functions may be properly carried
out, if you have the ministers selected, not at their own choice, not with any desire to
work in harmony with each other, not from any guaranteed policy which will ensure
harmonious working, but from different parts of the house, holding different views, and,
possibly, some of them, not on the friendliest terms? You may see, as a consequence,
35 ministers and their administrative arrangements reducing public affairs to a state of chaos,
and bringing, them into contempt with the people. As a necessary corollary to the hon.
member's proposition, if he wishes to make the federation one consistent with the
foreign lands from which it is supposed to be derived, let one supreme head be
elected by the people or the parliament, and let that person have the responsibility
40 of all executive authority as in the United States; then the federal machine will work
as smoothly as the greatest theorist would desire; but that machine would not agree
with the inclinations and desires of the people, who have commissioned us to form a
federal constitution under the Crown. I take it that, if we now agree to have so drastic a
change as this, it would result in the machine having to be further amended, so as to place
45 in it this principle of an elective governor or president, and so do away with the one link
which connects us with the mother land. It may be "a British sham"; but it is an
essential principle that we retain our connection with the mother land and with its
institutions which are really the motive of our desire for retaining that connecting
link. We desire to retain that connection, as far as possible, under our federation. I hold,
50 with the hon. member, Mr. Higgins, that we may use this term "federation" in such a way
p 231 9-3-2009
p232
as to run the theory to death. We may, as the hon. member, Sir Richard Baker, points out,
make a workable constitution, and, if we make it workable, I do not care how many
theories I violate, or help to violate, as long as we make the constitution workable, and
promote the happiness of those who are to live under it.
5 .
Again;
You may see, as a consequence, ministers and their administrative arrangements
reducing public affairs to a state of chaos, and bringing, them into contempt with
the people.
10 .
There ought to be no doubt that when it comes to "CONTEMPT" the Federal Parliament is so to
the extreme to purport to have allowed the passing of the Australia Bill 1986 where this was
beyond constitutional powers.
.
15 HANSARD 17-3-1898 Constitution Convention Debates
Mr. BARTON.-
this Constitution is to be worked under a system of responsible government
And
Mr. BARTON.-
20 We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that
guarantee.
And
Mr. BARTON.-
25 Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in
effect, because the provisions of this Constitution, the principles which it embodies,
and the details of enactment by which those principles are enforced, will all have
been the work of Australians.
30 And
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.
35 .
HANSARD 17-3-1898 Constitution Convention Debates
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
And
40 Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and
religious liberty-the liberty and the means to achieve all to which men in these days
can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is
also a charter of peace-of peace, order, and good government for the whole of the
45 peoples whom it will embrace and unite.
And
We who are assembled in this Convention are about to commit to the people of
Australia a new charter of union and liberty; we are about to commit this new
50 Magna Charta for their acceptance and confirmation, and I can conceive of nothing of
p 232 9-3-2009
p233
greater magnitude in the whole history of the peoples of the world than this question
upon which we are about to invite the peoples of Australia to vote. The Great Charter
was wrung by the barons of England from a reluctant king. This new charter is to be
given by the people of Australia to themselves.
5 And
Mr. BARTON.-
We can have every faith in the constitution of that tribunal. It is appointed as the arbiter
of the Constitution. . It is appointed not to be above the Constitution, for no citizen is
above it, but under it; but it is appointed for the purpose of saying that those who
10 are the instruments of the Constitution-the Government and the Parliament of the
day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
15 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
20 states, or the states from usurping the sphere of the Commonwealth.
.
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
.
Mr. ISAACS:
There is a line up to which concession may become at any moment a sacred duty, but to
pass that line would be treason; and therefore, when we are asked solemnly and gravely
30 to abandon the principle of responsible government, when we are invited to surrender the
latest-born, but, as I think, the noblest child of our constitutional system-a system which
has not only nurtured and preserved, but has strengthened the liberties of our people-then,
.
35 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying
to point out that laws would be valid if they had one motive, while they would be
invalid if they had another motive.
.
Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
45 to it.
.
Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on the Constitution
50 we will have to wipe it out."
p 233 9-3-2009
p234
And
Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative power, except that
which is actually given to it in express terms or which is necessary or incidental to a
5 power given.
.
Mr. GLYNN.-We should give the Federal Parliament as much latitude in deciding
whether trial by jury should be perpetuated as possible. We should not render its power
10 less great than the power which is possessed by the states at present. It is for that reason
that the suggestion is made by the Legislative Assembly of South Australia, and I trust
that the words in question will be struck out.
safeguard to the individual liberty of the subject in every state. It does not interfere with
15 the right of every state to alter its laws and to deprive its citizens of their liberty of being
tried by a jury of their fellow countrymen, but it does say that the Federal Parliament
shall be compelled to submit any person accused of a breach of the federal laws to
trial before a body of his own fellow citizens, in the state to which he belongs. If this
clause were not here offenders under the Federal Parliament might be removed under an
20 executive act from one part of the Commonwealth to another, to be tried by resident
magistrates, and the Federal Executive would be given authority which might permit
them to tyrannously interfere with the liberties of every subject in the community.
Mr. SYMON (South Australia).-The only argument I have heard in support of the
argument of my honorable friend (Mr. Glynn) was that which O'Connell used in the
25 House of Commons. He said that he was concerned in a case in which a prisoner was
being tried for murder. The case was tried in Ireland. The one witness who was called
for the defence was the murdered man. There was no doubt as to his identity, but
the jury found the prisoner guilty.
Mr. HIGGINS (Victoria).-I feel very strongly that, no matter how much we may value
30 trial by jury as a piece of machinery, it is not a matter for this Constitution at all.
Mr. WISE.-It is only for indictable offences committed under laws passed by the Federal
Parliament.
[start page 351]
Mr. HIGGINS.-But why should we make it a matter for the Constitution, which cannot
35 be affected by anything the Federal Parliament may do, that there shall be a jury for the
trial of any indictable offence?
Mr. WISE.-Because it is a safeguard of liberty.
Mr. HIGGINS.-If the honorable member were speaking a hundred years ago he might
have expected his remark to be applauded when he spoke of trial by jury as being a
40 necessary safeguard of liberty.
Mr. WISE.-I am speaking of modern times and in view of the decisions of Courts of
Equity.
Mr. HIGGINS.-A Court of Equity would not be able to imprison the honorable member,
except be were guilty of contempt of court, without trial by jury; they would have no
45 power to put him in prison for an indictable offence, even supposing that the
honorable member were guilty of an indictable offence. It would be, in the mouth of
any one else but my honorable and learned friend, mere clap-trap to say that trial by jury
was a safeguard of liberty at the present time. I agree that it is as well to have a jury in
criminal cases; I should like to see the system preserved in such cases. But that is not the
50 issue. The issue is whether we are to stereotype this in the Constitution, and to say, no
p 234 9-3-2009
p235
matter what changes may come about in legal procedure and in the mode of dealing with
crimes, that we must have a jury, and that nothing but a change in the Constitution can
bring about an alteration. I can tell honorable members that under a similar provision in
the American Constitution there has been a great deal of embarrassment, because they
5 have not been able to alter the criminal procedure in order to suit the exigencies of
modem times.
Mr. GLYNN.-They have no power to take a majority verdict, for instance.
Mr. HIGGINS.-That may be right or wrong; they cannot have assessors in commercial
cases. No matter how important the case may be, nor how large the interests at stake,
10 they have to take the verdict of a common jury composed of men taken out of the
street, as it were, although the case may involve huge interests, and be very complicated.
There is more and more a tendency for the frauds which take up the time of the criminal
courts to be of a complicated nature, often involving difficult questions of accountancy.
And is it fair to say that there should be no power to say what class of men shall try a case
15 of that kind? In Victoria, where there have been charges made against the directors of
public companies, there has been a general feeling that ordinary juries are not competent
to go into the difficult questions of accountancy involved.
Mr. OCONNOR.-This matter does not cover cases of that kind, but relates to
matters which are undoubtedly offences under the Constitution.
20 Mr. HIGGINS.-But the instances I have given serve as an illustration. Under the
American Constitution, which is still more stringent, they have no power to vary the
constitution of the jury; the kind of jury must always be the common law jury. In dealing
with federal functions, or functions which come under the federal law, we should not
restrict the Federal Parliament from making its own procedure. I may remind honorable
25 members that the Federal Parliament will have power to deal with bankruptcy law, with
company law, and other complicated matters. In view of such intricate affairs being
delegated to the federal authority, is it not possible that there will be difficult matters of
accountancy cropping up in cases tried under the federal law? I shall, therefore, have
much pleasure in supporting Mr. Glynn in this amendment. I may say also with regard to
30 the latter part of the clause, that I think it is still more objectionable. Why on earth should
the trial necessarily take place in the state in which the offence is committed? The
offence, or alleged offence, may be one which is backed up by the sentiment of [start
page 352] the people in the state in which it is committed, and it may be very hard indeed
to get a conviction there. My view is that what we want to get is justice-to get the law
35 carried out, right or wrong, and in order to get justice it may often be expedient to
have the, trial conducted in a place far removed from where the offence was
committed. For instance, if the customs law happens to be agreeable to eleven out of
twelve states, but the twelfth state objects to the law, and an accusation is brought against
a man in the twelfth state, why on earth should not the trial be removed to where there
40 may be an impartial verdict given?
Mr. BARTON.-Is not every state big enough to have a trial in?
Mr. HIGGINS.-It may be big enough, but every state may have different interests.
Mr. WISE.-A man ought not to be punished for what twelve jurymen think to be right.
Mr. HIGGINS.-It depends upon what the jurymen are. Suppose they happen to be
45 twelve pals of his.
Mr. WISE.-That is his good luck.
Mr. HIGGINS.-Suppose the twelve jurymen happen to be inclined to favour the
offender. I do not mean to say, as a rule, that a man ought not to be tried among those
who are his neighbours, but I hold that we ought not to put this as a rigid condition within
50 the four corners of the Constitution Act. I shall support my honorable friend now, and if
p 235 9-3-2009
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he succeeds in this amendment, then I shall support him if he moves to leave out the latter
part of the clause.
Mr. ISAACS (Victoria).-I do not think there is any safeguard at all such as the honorable
and learned member (Mr. Wise) has stated. He says it is to safeguard the right of every
5 person charged with an indictable offence to have a jury. To my mind, it is a very
proper thing to do. I think, in our present state of development, a man is entitled to have a
jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an
offence it may say it is not to be prosecuted by indictment, and immediately it does it is
not within the protection of this clause of the Constitution. In the United States
10 Constitution, the corresponding clause is "the trial of all crimes, except in cases of
impeachment, shall be by jury," which is a very different thing; so that if the Congress of
America were to declare any act or default to be a crime, necessarily it could not go on to
say, or use any words, or make any provisions by which a person could be deprived of a
jury.
15 Mr. WISE.-Do you think that public sentiment would ever tolerate the punishment
of imprisonment for an offence which was not triable by indictment?
Mr. ISAACS.-It is done every day. A man is tried before a magistrate and gets twelve
months or two years' imprisonment.
Mr. WISE.-Two years?
20 Mr. OCONNOR.-Two years, by a court of summary jurisdiction?
Mr. ISAACS.-I will not bind myself down to two years, but it is certainly a year's
imprisonment that he gets.
Mr. BARTON.-Then you ought to have very good magistrates.
Mr. ISAACS.-I will say, two years at all events, and in the Court of Insolvency one
25 Judge sits and has power to inflict imprisonment to a very considerable period. Whether
it is right or whether it is wrong, I think a man should have, for what are known as
criminal offences, a right to a jury. But this clause as it is framed will not conserve that
right. It does not use the word "crime"-it uses the words "indictable offence"; and all the
Legislature has to do is to say that an offence shall be prosecuted by information or shall
30 not be tried by indictment, and there is no right to a jury at all. The moment the offence
is not an indictable offence, then it ceases to be one which comes within the purview
of this clause.
Mr. OCONNOR.-You may trust the Parliament not to increase the list of [start page
353] offences to be dealt with by summary jurisdiction.
35 Mr. ISAACS.-Then you may trust the Parliament not to wipe out the right to a jury? I am
not arguing against the right to a jury, because I think that, except in certain cases of
summary procedure, a man has a right to have a jury, and public sentiment would not at
this day allow that right to be swept away. If this is intended to fetter the Federal
Parliament it partly fails in that intention.
40 Mr. GLYNN (South Australia).-I would like, in order to have this point a little more
carefully considered, to point out that this is one of the original amendments which were
put in the American Constitution. At the meeting of nine states in New York in 1765, in
the Declaration of Rights against England, it was declared that trial by jury, which it
was then feared was being attacked by England, was one of the inalienable rights of
45 every British subject in the colonies, and many of the states which took part in that
Declaration of Rights in 1765 subsequently refused to join unless a similar provision
was put in the American Constitution. I ask on what grounds are we to follow the
precedent of America in this matter? There is no reason why we should do so. It is simply
the copying, without the existence of the same necessity, of a clause in the American
p 236 9-3-2009
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Constitution. On the ground that you should not fetter the omnipotence of Parliament, I
hold that the words ought to be struck out.
Mr. SYMON (South Australia).-I shall vote with my honorable friend (Mr. Glynn).
Although at first I was inclined to say that these words ought to be put in, I think now
5 they are very much better left out. I think that in cases where it is desirable that a man
should be tried by a jury the Federal Parliament will confer that right. If there are cases in
which some other mode of trial ought to be prescribed, I think we may rest assured that
the necessary provision will be made by the Federal Parliament.
Question-That the words proposed to be omitted stand part of the clause-put.
10 The committee divided-
Ayes ... ... ... ... 17
Noes ... ... ... ... 8
Majority against the amendment 9
.
15 Again;
safeguard to the individual liberty of the subject in every state. It does not interfere with
the right of every state to alter its laws and to deprive its citizens of their liberty of being
tried by a jury of their fellow countrymen, but it does say that the Federal Parliament
20 shall be compelled to submit any person accused of a breach of the federal laws to
trial before a body of his own fellow citizens, in the state to which he belongs. If this
clause were not here offenders under the Federal Parliament might be removed under an
executive act from one part of the Commonwealth to another, to be tried by resident
magistrates, and the Federal Executive would be given authority which might permit
25 them to tyrannously interfere with the liberties of every subject in the community.
.
Well, where were the constitutional rights of Jack Thomas and Dr. Haneef to be dealt with before
a body by their fellow countrymen. The fact that Dr. Haneef was a "alien" did not mean he was
not part of citizens of Queensland, as he was subject to Australian laws as much as any other
30 person was.
.
Jack Thomas having had his case before a Federal Magistrate, rather then before a State
magistrate clearly underline the denial of his right to JUSTICE, and yet it appears to me the High
Court of Australia totally disregarded this in its 2-8-2007 judgment, for so far I read the
35 judgment of Gleeson CJ.
.
"PROCEDURAL FAIRNESS" HARDLY CAN BE DEEMED TO EXIST WHERE WE NOW
HAVE THE JUDICIARY MANIPULATED BY UNCONSTITUTIONAL PROVISIONS
WHERE THE JUDICIARY LACKING COMPETENCE IN CONSTITUTIONAL
40 PPOWERAND LIMITATIONS ARE NOW HANDING DOWN JUDGMENT NOT AS TO
WHAT IS CONSTITUTIONALLY PERMISSIBLE BUT WHAT IS DICTATED BY THE
FEDERAL PARLIAMENT REGARDLESS HOW UNCONSTITUTIONAL IT MIGHT BE.
.
45 Mr. ISAACS.-Could not the same thing occur under our Constitution?
Mr. WISE.-It could not occur, because there is no power given to any Judge under a
state Constitution to declare any Act of Parliament ultra vires.
Mr. ISAACS.-Not if contrary to the Constitution?
Mr. WISE.-That question has been raised and has been settled by the Privy Council.
p 237 9-3-2009
p238
Mr. ISAACS.-Yes, in the case of McLeod; and the Privy Council said that if the New
South Wales Parliament made the Act in the way in which it was contended it was
made it would be beyond their jurisdiction.
Mr. OCONNOR.-The Constitution is not above the Parliament, as it is here.
5 .
Actually, this all changed as the Framers of the Constitution themselves made clear that State
parliament no longer could amend their own constitutional willy nilly but required a State
Referendum (Section 123 of the Constitution) as they were no longer "sovereign" Parliaments
once the colonies (now States) federated, as they were then subject also to the legislative limits
10 of the Commonwealth of Australia Constitution Act 1900 (UK).
.
Therefore, State Parliament no longer having the sovereign powers to amend their own
constitutions are bound to seek the approval or VETO of State electors to amend a State
Constitution.
15 This, I have already extensively canvassed in books I have already published in the
INSPECTOR-RIKATI® series.
Hence, State Courts now would have the judicial powers to declare State legislation to be
ULTRA VIRES.
.
20 QUOTE:-
No parliament under a federation can be a constituent body; it will cease to have the
END QUOTE
.
25 "Subject to this constitution" means it must be interpreted to the intentions of the Framers of
the Constitution allowing for amendments made with approval by referendums.
.
Dr. COCKBURN: There have been only four amendments in this century. The hon.
30 member, Mr. Inglis Clark, is a good authority on America, and I am sure he will agree
with me that out of sixteen amendments only four have been agreed to in this century. All
the other amendments which have been made were really amend- [start page 198] ments
which were indicated almost at the very framing of the constitution, and they may be said
to be amendments which were embodied in the constitution at the first start. The very
35 element, the very essence, of federation is rigidity, and it is no use expecting that under a
rigid and written constitution we can still preserve those advantages which we have
reaped under an elastic constitution. All our experience hitherto has been under the
condition of parliamentary sovereignty. Parliament has been the supreme body. But
when we embark on federation we throw parliamentary sovereignty overboard.
40 Parliament is no longer supreme. Our parliaments at present are not only legislative,
but constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will.
45 Again, instead of parliament being supreme, the parliaments of a federation are
coordinate bodies-the main power is split up, instead of being vested in one body.
More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a
powerful judiciary which towers above all powers, legislative and executive, and which is
50 the sole arbiter and interpreter of the constitution. Therefore it is useless for us to hope
p 238 9-3-2009
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that we can, at the same time, have the advantages of a federation and retain the
advantages of that elasticity which has hitherto given birth to our greatest privileges.
Even responsible government, which we have all learned to revere so much, has simply
been a growth under the shelter of parliamentary sovereignty. We do not know that the
5 parliamentary responsibility of ministers can exist under any other conditions.
.
This is an issue so much ignored by parliamentarians and so the Courts. It in itself is a
"CONTEMPT" against the electors (the people).
.
Mr. KINGSTON.-I was delighted to hear the remarks of the honorable member (Sir
Joseph Abbott) on this matter, and they render it absolutely unnecessary for me to take
any notice whatever of the somewhat emphatic speech of my right honorable friend (Mr.
Reid). The honorable member (Sir Joseph Abbott) has shown that the traders and settlers,
15 to whom the right honorable member somewhat contemptuously referred, should be
regarded in an altogether different light. Under those circumstances, I do not propose to
deal further with that subject. But what I would point out to my honorable friend (Mr.
Isaacs) especially, as well as to members of the Convention generally, is this, that we are
now seeking practically to effect that which the honorable member (Mr. Isaacs) yesterday
20 sought to achieve. In endeavouring to embody in this Constitution any direction to the
Federal Parliament as to the mode in which it should act, the clause, if carried, will
simply amount to this: That the Federal Parliament will have power by legislation to
secure the navigability and also the improvement of the navigability of the Rivers
Darling and Murray, subject to this qualification: That in the legislation the right of
25 the settlers to the use of the water for the purposes of conservation and irrigation
shall be preserved to its fullest extent with one limitation, that is, that it shall not be
to an unreasonable extent. Surely my honorable friends from New South Wales do not
desire to do any-thing unreasonable in the matter.
.
30 Yet, we find that the Federal Government is contemptuous towards this and pursues to push for
the Federal Parliament to legislate in defiance to this!
What we therefore see is that "CONTEMPT" is basically left in the "eye of the beholder" as to
what may be deemed CONTEMPT by one may not be deemed contempt by another.
.
Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which
the community, seized with a sort of madness with regard to particular offences, have set
aside all principles of justice. If a state did behave itself in that way, why should not the
citizens of the Commonwealth who did not belong to that state be protected? Dr.
40 Cockburn suggested in so contemptuous a way that there could be no reason for this
amendment, that I got up to state again what had been stated before.
Dr. COCKBURN.-Not contemptuous.
Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it
necessary to state the reasons of what, had it not been for the honorable member's
45 statement, would have seemed to be a perfectly obvious proposition. Mr. Clark, of
Tasmania, thought the amendment of importance, and pointed out that it had been put in
the United States Constitution. It should also be put in this Constitution, not necessarily
as an imputation on any state or any body of states, but as a guarantee for all time
for the citizens of the Commonwealth that they shall be treated according to what
50 we recognise to be the principles of justice and of equality.
p 239 9-3-2009
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.
Mr. BARTON (New South Wales).-I beg to move-
That the words "of all indictable offences" (line 1), be struck out, and that the words "on
5 indictment of any offence" be substituted.
The object of this amendment is simple. As the clause stood it provided that the trial
of all indictable offences against any law of the Commonwealth "shall be by jury."
This meant that, however small might be the offence created by any Commonwealth
enactment, supposing an offence that should be punishable summarily, it would,
10 nevertheless, have to be tried by Jury. Then there are cases of contempt which are,
we know, indictable offences, and these, under the clause, would have to be tried by
jury. The better way, however, is as we suggest, that where there is a power of
punishing a minor offence summarily, it may be so punished summarily. But where
an indictment has been brought the trial must be by jury. The object was to
15 preserve trial by jury where an indictment has been brought, but such cases of
contempt should be punishable by the court in the ordinary way. The clause as it
stood would compel the trial of all contempts by jury, and so. [start page 1895] in
regard to a large number of minor cases with which, of course, it would be necessary
to deal promptly by way of summary procedure. There will be numerous
20 Commonwealth enactments which would prescribe, and properly prescribe,
punishment, and summary punishment; and if we do not alter the clause in this way
they will have to be tried by jury, which would be a cumbrous thing, and would
hamper the administration of justice of minor cases entirely.
Mr. ISAACS (Victoria).-When the clause was before us previously, I pointed out that I
25 did not think it would have any real effect at all, because it is within the powers of the
Parliament to say what shall be an indictable offence and what shall not. The Parliament
could, if it chose, say that murder was not to be an indictable offence, and therefore the
right to try a person accused of murder would not necessarily be by jury.
Mr. BARTON.-It might drive the Commonwealth to deal differently with this class of
30 offences.
Mr. ISAACS.-It might. If you say "on indictment of any offence," if it means
proceedings by means known technically as indictment, that could be got over by what is
known as a presentment, and then the trial need not be by jury at all. It could be got over
in various ways by saying that the jury should be composed of two persons, or, of only
35 one person. The alteration here proposed prevents the difficulty Mr. Barton refers to, but I
must say that I do not see much effect in the clause as it stands in regard to preserving in
all circumstances trial by jury.
Mr. DOUGLAS (Tasmania).-There are many offences dealt with summarily which are
indictable, and we must be careful not to do away with summary jurisdiction. That would
40 not be at all desirable.
The amendment was agreed to.
.
THE MAGNA CARTA (The Great Charter):
.
45 20. A freeman shall not be amerced for a slight offense, except in accordance with the
degree of the offense; and for a grave offense he shall be amerced in accordance with the
gravity of the offense, yet saving always his "contentment"; and a merchant in the same
way, saving his "merchandise"; and a villein shall be amerced in the same way, saving his
"wainage" if they have fallen into our mercy: and none of the aforesaid amercements
50 shall be imposed except by the oath of honest men of the neighborhood.
p 240 9-3-2009
p241
.
38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his
"law", without credible witnesses brought for this purposes.
.
5 39. No freemen shall be taken or imprisoned or disseised or exiled or in any way
destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of
his peers or by the law of the land.
.
40. To no one will we sell, to no one will we refuse or delay, right or justice.
10 .
55. All fines made with us unjustly and against the law of the land, and all amercements,
imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall
be done concerning them according to the decision of the five and twenty barons whom
mention is made below in the clause for securing the pease, or according to the judgment
15 of the majority of the same, along with the aforesaid Stephen, archbishop of Canterbury,
if he can be present, and such others as he may wish to bring with him for this purpose,
and if he cannot be present the business shall nevertheless proceed without him, provided
always that if any one or more of the aforesaid five and twenty barons are in a similar
suit, they shall be removed as far as concerns this particular judgment, others being
20 substituted in their places after having been selected by the rest of the same five and
twenty for this purpose only, and after having been sworn.
.
60. Moreover, all these aforesaid customs and liberties, the observances of which we have
granted in our kingdom as far as pertains to us towards our men, shall be observed b all of
25 our kingdom, as well clergy as laymen, as far as pertains to them towards their men.
.
61. Since, moveover, for God and the amendment of our kingdom and for the better
allaying of the quarrel that has arisen between us and our barons, we have granted all
these concessions, desirous that they should enjoy them in complete and firm endurance
30 forever, we give and grant to them the underwritten security, namely, that the barons
choose five and twenty barons of the kingdom, whomsoever they will, who shall be
bound with all their might, to observe and hold, and cause to be observed, the peace and
liberties we have granted and confirmed to them by this our present Charter, so that if we,
or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault
35 towards anyone, or shall have broken any one of the articles of this peace or of this
security, and the offense be notified to four barons of the foresaid five and twenty, the
said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying
the transgression before us, petition to have that transgression redressed without delay.
And if we shall not have corrected the transgression (or, in the event of our being out of
40 the realm, if our justiciar shall not have corrected it) within forty days, reckoning from
the time it has been intimated to us (or to our justiciar, if we should be out of the realm),
the four barons aforesaid shall refer that matter to the rest of the five and twenty barons,
and those five and twenty barons shall, together with the community of the whole realm,
distrain and distress us in all possible ways, namely, by seizing our castles, lands,
45 possessions, and in any other way they can, until redress has been obtained as they deem
fit, saving harmless our own person, and the persons of our queen and children; and when
redress has been obtained, they shall resume their old relations towards us. And let
whoever in the country desires it, swear to obey the orders of the said five and twenty
barons for the execution of all the aforesaid matters, and along with them, to molest us to
50 the utmost of his power; and we publicly and freely grant leave to everyone who wishes
p 241 9-3-2009
p242
to swear, and we shall never forbid anyone to swear. All those, moveover, in the land
who of themselves and of their own accord are unwilling to swear to the twenty five to
help them in constraining and molesting us, we shall by our command compel the same to
swear to the effect foresaid. And if any one of the five and twenty barons shall have died
5 or departed from the land, or be incapacitated in any other manner which would prevent
the foresaid provisions being carried out, those of the said twenty five barons who are left
shall choose another in his place according to their own judgment, and he shall be sworn
in the same way as the others. Further, in all matters, the execution of which is
entrusted,to these twenty five barons, if perchance these twenty five are present and
10 disagree about anything, or if some of them, after being summoned, are unwilling or
unable to be present, that which the majority of those present ordain or command shall be
held as fixed and established, exactly as if the whole twenty five had concurred in this;
and the said twenty five shall swear that they will faithfully observe all that is aforesaid,
and cause it to be observed with all their might. And we shall procure nothing from
15 anyone, directly or indirectly, whereby any part of these concessions and liberties
might be revoked or diminished; and if any such things has been procured, let it be
void and null, and we shall never use it personally or by another.
.
A problem with the above reasoning is that the Framers of the Constitution did make clear that
20 the Magna Charta did apply. As such there is a conflict as to the proper application of the Magna
Charta and to hold a trial without jury by merely excluding this to be indictable;
END QUOTE Chapter 102 –CONTEMPT OF COURT
.
http://www.austlii.edu.au/cgi-
25 bin/sinodisp/au/legis/qld/bill_en/cab1999278/cab1999278.html?query=Constitution%20Act%20
1867
QUOTE CONSTITUTION AMENDMENT BILL 1999
Queensland Bills Explanatory Notes

30
CONSTITUTION AMENDMENT BILL 1999

1
Constitution Amendment
35
CONSTITUTION AMENDMENT BILL
1999
EXPLANATORY NOTES
40
GENERAL OUTLINE
Title of Bill
45 Constitution Amendment Bill 1999
Policy Objectives of the Bill

The objective of this Bill is to:
p 242 9-3-2009
p243
· amend section 40A of the Constitution Act 1867 to provide that

the powers, rights and immunities of the Queensland Legislative
Assembly, its members and committees are those that applied to
the House of Commons of the Parliament of the United Kingdom
5 at the date of Australian Federation 1 January 1901.
Reasons for the Bill

Section 40A of the Constitution Act 1867 links the powers, privileges and
10 immunities of the Legislative Assembly to those of the House of Commons
of the Parliament of the United Kingdom.
It has previously been recognised by the Queensland Legislative
Assembly that problems may arise in defining with certainty the powers,
rights and immunities applicable in Queensland should the House of
15 Commons divest itself of any of its powers or modify them in any way.
A United Kingdom House of Lords / House of Commons Joint
Committee on Parliamentary Privilege tabled a report on 30 March 1999
making 39 recommendations which will entail significant changes to
parliamentary privilege in the House of Lords and House of Commons.
20
2
If the United Kingdom Parliament adopts any of the 39

25 recommendations relating to the powers, rights and immunities of the
Parliament, those changes may then apply in Queensland under the current
section 40A of the Constitution Act 1867 .
The potential for the Queensland Parliament's powers, rights and
30 consideration by the Legislative Assembly is inappropriate and a dated
notion for the independence and maturity of Queensland's Parliament.
The Bill proposes that section 40A of the Constitution Act 1867 be
amended to provide that the powers, rights and immunities of the
Queensland Legislative Assembly, its members and committees be those
35 which applied to the House of Commons of the Parliament of the United
Kingdom at the date of Australian Federation 1 January 1901.
Estimated Costs for Government Implementation

40 Implementation of the amendment will be cost neutral.
Consistency with Fundamental Legislative Principles

This Bill is consistent with fundamental legislative principles as outlined
45 in section 4 of the Legislative Standards Act 1992.
Consultation
In its Report No.26 - First Report on the Powers, Rights and Immunities
p 243 9-3-2009
p244
of the Legislative Assembly, its Committees and Members, the Members'

Ethics and Parliamentary Privileges Committee (MEPPC) indicated
problems may arise in defining with certainty the powers, rights and
immunities applicable in Queensland should the House of Commons divest
5 itself of any of its powers or modify them in any way. The MEPPC
recommended that section 40A of the Constitution Act 1867 be amended to
provide that the powers, rights and immunities of the Queensland
Legislative Assembly, its members and committees be those which applied
to the House of Commons at the date of Federation 1 January 1901.
10
3
In relation to this report, the MEPPC advertised widely seeking public

15 submissions in respect of its inquiry. MEPPC also released a detailed
Issues Paper on Parliamentary Privilege in Queensland in July 1997.
MEPPC received 21 public submissions and held a public hearing on 23
October 1997.
In its Report No.34 - Report on relevance of House of Lords / House of
20 Commons Joint Committee's report on parliamentary privilege, MEPPC
recommended the expeditious amendment to section 40A of the
Constitution Act 1867 in light of the Joint Committee report
recommendations. No further consultation on the issue was conducted by
MEPPC at this time.
25 The proposed amendment included in the Bill has previously been
incorporated in the Consolidation of the Queensland Constitution
Discussion Drafts, Constitution of Queensland Bill. The Discussion Drafts
were publicly released on 20 July 1999. No comment has been received by
the Department of the Premier and Cabinet on the proposed amendment
30 since the release of the Discussion Drafts. Similarly, the Queensland
Constitutional Review Commission (QCRC) sought public submissions on
possible reform of the Queensland Constitution and has circulated the
Government's Discussion Drafts widely. None of the submissions to the
QCRC have addressed the Government's proposed amendment to section
35 40A of the Constitution Act 1867 .
NOTES ON CLAUSES
Short Title
40 Clause 1 sets out the short title of the Act--the Constitution Amendment
Act 1999.
Act amended
45 Clause 2 states that the Act amends the Constitution Act 1867 .
Replacement of section 40A (Powers, privileges and immunities of
Legislative Assembly) and heading
4
p 244 9-3-2009
p245
Clause 3 omits the current section 40A and the heading "POWERS
AND PRIVILEGES OF PARLIAMENT".
5 The clause inserts the new heading "POWERS, RIGHTS AND
IMMUNITIES OF PARLIAMENT" and locates this heading before
section 40A. The new heading contemporises the description to specify the
existence of rights and immunities of the Legislative Assembly, its
members and committees.
10 The clause provides generally for the powers, rights and immunities of
the Legislative Assembly. The clause states that the powers, rights and
immunities of the Legislative Assembly, its members and committees are
those defined by Act and, until defined by Act, are those of the United
Kingdom House of Commons as at the establishment of the
15 Commonwealth of Australia on 1 January 1901.
The clause also clarifies that rights includes privileges.
© The State of Queensland 1999

END QUOTE CONSTITUTION AMENDMENT BILL 1999
20 .
The following also has its issues, which I will address after quoting the legislation.
.
http://www.austlii.edu.au/au/legis/qld/consol_act/caaa1934289.txt
25 http://www.austlii.edu.au/au/legis/qld/consol_act/caaa1934289.txt/cgi-
bin/download.cgi/download/au/legis/qld/consol_act/caaa1934289.txt
QUOTE CONSTITUTION ACT AMENDMENT ACT 1934 Reprinted as in force on 7 June
1996
30 CONSTITUTION ACT AMENDMENT ACT 1934
Reprinted as in force on 7 June 1996
(Act not amended up to this date)

35
Reprint No. 2 *
TABLE OF PROVISIONS
40 TABLE OF PROVISIONS
1. Short title and construction

2. Interpretation--Constitution of Queensland
3. Parliament not to be altered in the direction of re-establishing the
45 Legislative Council or other body except in accordance with this section
4. Duration of Legislative Assembly not to be extended except in accordance
with this section
ENDNOTES
50
p 245 9-3-2009
p246
CONSTITUTION ACT AMENDMENT ACT 1934

- LONG TITLE
5 An Act to amend the Constitution of Queensland by providing that a Legislative

Council (or other similar legislative body) shall not be restored, constituted,
or established, and that the duration of the Legislative Assembly (as now by
law provided) shall not be extended unless or until a referendum of the
electors of the State shall so approve, in either case; and for other purposes
10 Preamble
WHEREAS, a Bill intituled The Constitution Act Amendment Bill of 1921 was,
during the session of the Parliament holden in the year 1921, passed by the
legislature, and which Bill was, pursuant to the provisions of the Australian
States Constitution Act 1907 reserved for the signification of His Majesty's
15 pleasure.
And whereas the assent of His Majesty (whom God may long preserve!) to the said
Bill was proclaimed on the 12th year of His Majesty's reign on 23 March 1922,
and on the Bill becoming an Act by virtue of such assent, such Act was
intituled the Constitution Act Amendment Act 1922, and was numbered No. 32 of
20 such 12th year of His Majesty's reign, and which Act is and forms part of the
Constitution of Queensland.
And whereas, pursuant to such Act, the Legislative Council was abolished.
And whereas the Parliament of Queensland (or, as sometimes called, the
Legislature of Queensland), has since the year 1922 been constituted by His
25 Majesty the King and the Legislative Assembly in Parliament assembled, and is
so presently constituted.
And whereas it is desirable that no other legislative body (whether called the
'Legislative Council,' or by any other name or designation, in addition to the
Legislative Assembly) should be restored, or constituted, or established,
30 except subject to the provisions hereinafter set forth.
And whereas, pursuant to an Act of the Parliament called the Constitution Act
Amendment Act 1890 (which was passed in the 54th year of the reign of Her late
Majesty Queen Victoria and numbered No. 3), it is provided that every
Legislative Assembly hereafter (i.e., after 29 September 1890--being the date
35 of the assent of such Act), to be summoned and chosen shall continue for 3
years from the day appointed for the return of the writs for choosing the same,
and no longer (subject, nevertheless, to be sooner dissolved by the Governor),
and which Act is and forms part of the Constitution of Queensland.
And whereas it is also desirable that the provisions of the Constitution Act
40 Amendment Act 1890, hereinbefore referred to, or any other Act or law of the
Constitution, shall not be amended in the direction of extending the said
period of time--namely, 3 years--for the duration of the present Legislative
Assembly or any Legislative Assembly to be hereafter summoned and chosen,
except subject to the provisions hereinafter set forth.
45
- SECT 1
1 Short title and construction
50
p 246 9-3-2009
p247
This Act may be cited as the Constitution Act Amendment Act 1934, and shall be
read and construed with and as an amendment of the Constitution of Queensland.

5 - SECT 2
2 Interpretation--Constitution of Queensland
In this Act--
"Constitution of Queensland" means and includes the order in council of Her
10 late Majesty Queen Victoria dated 6 June 1859, referred to in the preamble to
the Constitution Act 1867 and the Constitution Act 1867, and each and every Act
amending, altering, or repealing or purporting to amend, alter, or repeal any
of the provisions of the abovementioned order in council and Act, or either of
them.
15
- SECT 3
3 Parliament not to be altered in the direction of re-establishing the
Legislative Council or other body except in accordance with this section
20
(1) The Parliament of Queensland (or, as sometimes called, the Legislature of
Queensland), constituted by His Majesty the King and the Legislative Assembly
of Queensland in Parliament assembled shall not be altered in the direction of
providing for the restoration and/or constitution and/or establishment of
25 another legislative body (whether called the "Legislative Council," or by any
other name or designation, in addition to the Legislative Assembly) except in
the manner provided in this section.
(2) A Bill for any purpose within subsection one of this section shall not be
presented to the Governor for the reservation thereof for the signification of
30 His Majesty's pleasure, or for the Governor's Assent, or be in any other way
assented to, until the Bill has been approved by the electors in accordance
with this section.
(3) On a day not sooner than two months after the passage of the Bill through
the Legislative Assembly, the question for the approval or otherwise of the
35 Bill shall be submitted to the electors qualified to vote for the election of
members of the Legislative Assembly according to the provisions of "The
Elections Acts, 1915 to 1932," or any Act amending the same or in substitution
therefor.
Such day shall be appointed by the Governor in Council.
40 (4) When the Bill is submitted to the electors the vote shall be taken in such
manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be
His Majesty's pleasure.
45 (6) The provisions of this section shall extend to any Bill for the repeal or
amendment of this section.

- SECT 4
50 4 Duration of Legislative Assembly not to be extended except in accordance with
p 247 9-3-2009
p248
this section
(1) The provisions of section two of "The Constitution Act Amendment Act of
1890" (referred to in the preamble to this Act) shall not be amended in the
5 direction of extending the period of three years, which, as provided by the
said section two, is the period for which any Legislative Assembly, now or
hereafter summoned and chosen, shall continue from the day appointed for the
return of the writs for choosing the same and no longer (subject, nevertheless,
to be sooner dissolved by the Governor), nor shall any other Act or law
10 relating to the Constitution be passed extending such period of three years as
aforesaid, except in the manner provided by this section.
(2) A Bill for any purpose within subsection (1) of this section shall not be
His Majesty's pleasure, or for the Governor's Assent, or be in any other way
15 assented to, until the Bill has been approved by the electors in accordance
with this section.
(3) On a day not sooner than two months after the passage of the Bill through
the Legislative Assembly, the question for the approval or otherwise of the
Bill shall be submitted to the electors qualified to vote for the election of
20 members of the Legislative Assembly according to the provisions of "The
Elections Acts, 1915 to 1932," or any Act amending the same or in substitution
therefor.
(4) When the Bill is submitted to the electors the vote shall be taken in such
25 manner as the Legislature prescribes.
(6) The provisions of this section shall extend to any Bill for the repeal or
30 amendment of this section.

- NOTES
35 Page
Date to which amendments incorporated 7
Key 7
Table of earlier reprints 8
Tables in earlier reprints 8
40 List of legislation 8
This is the reprint date mentioned in the Reprints Act 1992, section 5(c).
However, no amendments have commenced operation on or before that day. Future
amendments of the Constitution Act Amendment Act 1934 may be made in accordance
with this reprint under the Reprints Act 1992, section 49.
45
Key Explanation Key Explanation
AIA = Acts Interpretation Act 1954 prev = previous
50 amd = amended (prev) = previously

p 248 9-3-2009
p249
amdt = amendment proc = proclamation
ch = chapter prov = provision

5
def = definition pt = part
div = division pubd = published
10 exp = expires/expired R[X] = Reprint No.[X]
gaz = gazette RA = Reprints Act 1992
hdg = heading reloc = relocated

15
ins = inserted renum = renumbered
lap = lapsed rep = repealed
20 notfd = notified s = section
o in c = order in council sch = schedule
om = omitted sdiv = subdivision

25
orig = original SIA = Statutory Instruments Act
1992
p = page SIR = Statutory Instruments

30 Regulation 1992
para = paragraph SL = subordinate legislation
prec = preceding sub = substituted

35
pres = present unnum = unnumbered
Reprint No. Amendments included Reprint date

40
Name of table Reprint No.

.
END QUOTE CONSTITUTION ACT AMENDMENT ACT 1934 Reprinted as in force on 7
45 June 1996
.
But we now have a further issue that there is a later version of the Queensland constitution which
states
.
p 249 9-3-2009
p250
http://www.austlii.edu.au/cgi-
bin/sinodisp/au/legis/qld/consol_act/ca1867188/notes.html?query=Constitution%20Act%201867
QUOTE CONSTITUTION ACT 1867, Reprinted as in force on 20 June 2002

5
CONSTITUTION ACT 1867
Reprinted as in force on 20 June 2002
10 (includes amendments up to Act No. 80 of 2001)
Reprint No. 2B
TABLE OF PROVISIONS
15
TABLE OF PROVISIONS
PRELIMINARY
20 1A. Short title
THE LEGISLATURE
1. Legislative Assembly
25 2. Legislative Assembly constituted
2A. The Parliament
THE GOVERNOR
30 11A. Office of Governor

11B. Definition of Royal Sign Manual
CROWN LAND
35 30. Legislature empowered to make laws regulating sale and other disposal of
waste lands
40. The entire management of Crown lands and all revenues thence arising to be
vested in the local legislature
40 REQUIREMENT FOR REFERENDUM
53. Certain measures to be supported by referendum
ENDNOTES
45
- LONG TITLE
50 An Act to consolidate the laws relating to the Constitution of the State of

p 250 9-3-2009
p251
Queensland

- SECT 1A
5 1A Short title
This Act may be cited as the Constitution Act 1867.

10 - SECT 1
1 Legislative Assembly
There shall be within the said Colony of Queensland a Legislative Assembly.
15 CONSTITUTION ACT 1867

- SECT 2
2 Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by and with
20 the advice and consent of the said Assembly to make laws for the peace welfare
and good government of the colony in all cases whatsoever.

- SECT 2A
25 2A The Parliament
(1) The Parliament of Queensland consists of the Queen and the Legislative
Assembly referred to in sections 1 and 2.
30 (2) Every Bill, after its passage through the Legislative Assembly, shall be
presented to the Governor for assent by or in the name of the Queen and shall
be of no effect unless it has been duly assented to by or in the name of the
Queen.

- SECT 11A
11A Office of Governor
(1) The Queen's representative in Queensland is the Governor who shall hold
40 office during Her Majesty's pleasure.
(2) Abolition of or alteration in the office of Governor shall not be effected
by an Act of the Parliament except in accordance with section 53.
(3) In this Act and in every other Act a reference to the Governor shall be
taken--
45
(a) to be a reference to the person appointed for the time being by the
Queen by Commission under Her Majesty's Royal Sign Manual to the office of
Governor of the State of Queensland; and
50 (b) to include any other person appointed by dormant or other Commission

p 251 9-3-2009
p252
under the Royal Sign Manual to administer the Government of the State of
Queensland.

5 - SECT 11B
11B Definition of Royal Sign Manual
In section 11A the expression "Royal Sign Manual" means the signature or royal
hand of the Sovereign.
10
- SECT 30
30 Legislature empowered to make laws regulating sale and other disposal of
waste lands
15
Subject to the provisions contained in the Imperial Act of the 18th and 19th
Victoria chapter 54 and of an Act of the 18th and 19th years of Her Majesty
entitled An Act to repeal the Acts of Parliament now in force respecting the
Disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies
20 and to make other provisions in lieu thereof which concern the maintenance of
existing contracts it shall be lawful for the legislature of this State to make
laws for regulating the sale letting disposal and occupation of the waste lands
of the Crown within the said State.

- SECT 40
40 The entire management of Crown lands and all revenues thence arising to be
vested in the local legislature
30 The entire management and control of the waste lands belonging to the Crown in
the said State and also the appropriation of the gross proceeds of the sales of
such lands and all other proceeds and revenues of the same from whatever source
arising within the said State including all royalties mines and minerals shall
be vested in the legislature of the said State.
35
- SECT 53
53 Certain measures to be supported by referendum
40 (1) A Bill that expressly or impliedly provides for the abolition of or

alteration in the office of Governor or that expressly or impliedly in any way
affects any of the following sections of this Act namely--
sections 1, 2, 2A, 11A, 11B; and

45
this section 53
shall not be presented for assent by or in the name of the Queen unless it has
first been approved by the electors in accordance with this section and a Bill
so assented to consequent upon its presentation in contravention of this
50 subsection shall be of no effect as an Act.
p 252 9-3-2009
p253
(2) On a day not sooner than two months after the passage through the
Legislative Assembly of a Bill of a kind referred to in subsection (1) the
question for the approval or otherwise of the Bill shall be submitted to the
electors qualified to vote for the election of members of the Legislative
5 Assembly according to the provisions of the Elections Act 1915-1973 and of any
Act amending the same or of any Act in substitution therefor.
Such day shall be appointed by the Governor in Council by Order in Council.
(3) When the Bill is submitted to the electors the vote shall be taken in such
manner as the Parliament of Queensland prescribes.
10 (4) If a majority of the electors voting approve the Bill, it shall be
presented to the Governor for reservation thereof for the signification of the
Queen's pleasure.
(5) Any person entitled to vote at a general election of members of the
Legislative Assembly is entitled to bring proceedings in the Supreme Court for
15 a declaration, injunction or other remedy to enforce the provisions of this
section either before or after a Bill of a kind referred to in subsection (1)
is presented for assent by or in the name of the Queen.
Act 24 Geo. 5 No. 35 preserved
(6) The provisions of this section shall in no way affect the operation of The
20 Constitution Act Amendment Act of 1934.

- NOTES
25 Page
Date to which amendments incorporated 7
Key 7
Table of earlier reprints 8
Tables in earlier reprints 8
30 List of legislation 8
List of annotations 10
This is the reprint date mentioned in the Reprints Act 1992, section 5(c).
Accordingly, this reprint includes all amendments that commenced operation on
or before 20 June 2002. Future amendments of the Constitution Act 1867 may be
35 made in accordance with this reprint under the Reprints Act 1992, section 49.
Key Explanation Key Explanation
AIA = Acts Interpretation Act 1954 prev = previous

40
amd = amended (prev) = previously
amdt = amendment proc = proclamation
45 ch = chapter prov = provision
def = definition pt = part
div = division pubd = published

50
p 253 9-3-2009
p254
exp = expires/expired R[X] = Reprint No.[X]
gaz = gazette RA = Reprints Act 1992
5 hdg = heading reloc = relocated
ins = inserted renum = renumbered
lap = lapsed rep = repealed

10
notfd = notified s = section
o in c = order in council sch = schedule
15 om = omitted sdiv = subdivision
orig = original SIA = Statutory Instruments Act

1992
20 p = page SIR = Statutory Instruments

Regulation 1992
para = paragraph SL = subordinate legislation
25 prec = preceding sub = substituted
pres = present unnum = unnumbered
30 Reprint No. Amendments included Reprint date
Name of table Reprint No.

END QUOTE CONSTITUTION ACT 1867, Reprinted as in force on 20 June 2002
.
35 Again;
1996
(2) A Bill for any purpose within subsection one of this section shall not be
40 presented to the Governor for the reservation thereof for the signification of
His Majesty's pleasure, or for the Governor's Assent, or be in any other way
assented to, until the Bill has been approved by the electors in accordance
with this section.
END QUOTE CONSTITUTION ACT AMENDMENT ACT 1934
45 QUOTE CONSTITUTION ACT AMENDMENT ACT 1934 Reprinted as in force on 7 June
1996
(1) A Bill that expressly or impliedly provides for the abolition of or
alteration in the office of Governor or that expressly or impliedly in any way
affects any of the following sections of this Act namely--
50
p 254 9-3-2009
p255
this section 53
shall not be presented for assent by or in the name of the Queen unless it has
5 first been approved by the electors in accordance with this section and a Bill
so assented to consequent upon its presentation in contravention of this
subsection shall be of no effect as an Act.
END QUOTE
10 And
1996

15 presented to the Governor for the reservation thereof for the signification of
1996
presented to the Governor for reservation thereof for the signification of the
Queen's pleasure.
END QUOTE
25 .
1996
Legislative Assembly is entitled to bring proceedings in the Supreme Court for
30 a declaration, injunction or other remedy to enforce the provisions of this
section either before or after a Bill of a kind referred to in subsection (1)
is presented for assent by or in the name of the Queen.
END QUOTE
35 .
And it did then state;
1996
(6) The provisions of this section shall extend to any Bill for the repeal or
40 amendment of this section.
1996
45 Constitution Act Amendment Act of 1934.
.
As such, even to delete the Crown would be an amendment and as such would require a State
referendum! What the Constitution Amendment Act 1934 refers to is the British Crown in view
50 that it refers to a “King” [And whereas the assent of His Majesty (whom God may long
p 255 9-3-2009
p256
preserve!) to the said Bill was proclaimed on the 12th year of His Majesty's reign on 23 March
1922] whereas purportedly, and since the purported 1986 Australia Act no “King” was at the
throne and therefore can but only apply to the position of the King of the British Crown as at the
time no royal title existed either of King of Australia! Since 1986 by way of the Australia Act it
5 is now the Queen of Australia, and High Court of Australia held that Heather Hill (Sue v Hill)
was an foreigner because she was under the British Crown.
.
Queensland Constitution Amendment Act 1934 clearly never gave Queensland the right to
participate in any request for the Australia Act 1986 because this would be in breach of the
10 Constitution Amendment Act 1934 as it first would require a State referendum to obtain the Ste
electors to VETO or approve this.
The (purported) Queensland Constitution Act 2001 has the version:
QUOTE
15 4 References to the Sovereign
A reference in this Act to the Sovereign is a reference to the Queen or
King for the time being, and, if necessary, includes the Queen’s or King’s
heirs and successors.
END QUOTE
20 .
This now refers also to “includes the Queen’s or King’s heirs and successors” and this itself is
clearly an amendment that would be unconstitutional without there having been a referendum to
approve this.
.
25 What cannot be done by the State in a direct manner then cannot be done through a backdoor
manner!
.
The Queensland Constitution Amendment Act 1934 explicative denied the Queensland
Parliament to in anyway amend the Queensland Constitution Act 1867 without approval of the
30 State electors by way of State referendum. And, even if it had not stated this, as shown below a
State referendum is required whenever a constitutional Parliament seeks to amend its own State
Constitution.
.
Again;
35 QUOTE CONSTITUTION ACT AMENDMENT ACT 1934 Reprinted as in force on 7 June
1996
Constitution Act Amendment Act of 1934.
40 .
The amendment to the Constitution therefore clearly was one that was in all events
unconstitutional. And so also the creation of the alternative Constitution act 2001 as irrespective
that it may incorporate certain parts of the original Constitution Act 1867 it still is not the same
as it now portrays that the Queensland Parliament no longer is a “CONSTITUTIONAL
45 PARLIAMENT” but now is a “SOVEREIGN PARLIAMENT” that can amend its own
Constitution Act as it pleases.
.
QUOTE Queensland Constitution Act 2001
Queensland
p 256 9-3-2009
p257
CONSTITUTION OF
QUEENSLAND 2001
Act No. 80 of 2001
5 Queensland
CONSTITUTION OF QUEENSLAND 2001
TABLE OF PROVISIONS
Section Page
CHAPTER 1—PRELIMINARY
10 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 References to the Sovereign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5 Note in text is part of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
15 CHAPTER 2—PARLIAMENT
PART 1—CONSTITUTION AND POWERS OF PARLIAMENT
6 The Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 Legislative Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8 Law-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20 9 Powers, rights and immunities of Legislative Assembly. . . . . . . . . . . . . . . . 10
10 Members of Legislative Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11 Number of members of Legislative Assembly . . . . . . . . . . . . . . . . . . . . . . . 10
12 Division of State into electoral districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13 1 member for each electoral district . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25 14 Power to alter system of representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PART 2—PROCEDURAL REQUIREMENTS FOR THE
LEGISLATIVE ASSEMBLY
15 Summoning, proroguing and dissolving the Legislative Assembly . . . . . . . 11
16 Duration of Legislative Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
30 17 Continuation of Legislative Assembly despite end of Sovereign’s reign . . . 12
18 Time and place for sessions of Legislative Assembly . . . . . . . . . . . . . . . . . . 12
19 Minimum sitting requirement for Legislative Assembly. . . . . . . . . . . . . . . . 12
2
Constitution of Queensland 2001 No. 80, 2001
35 PART 3—APPROPRIATION FOR LEGISLATIVE ASSEMBLY
20 Separate appropriation for Legislative Assembly . . . . . . . . . . . . . . . . . . . . . 13
PART 4—MEMBERS
Division 1—Generally
21 Eligibility to be a candidate and to be elected as a member . . . . . . . . . . . . . 13
40 22 No member to sit or vote without first taking oath or making affirmation . . 14
Division 2—Members who are Ministers or Parliamentary Secretaries
23 Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
24 Appointment of Parliamentary Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25 Functions of Parliamentary Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
45 26 Length of Parliamentary Secretary’s appointment . . . . . . . . . . . . . . . . . . . . 14
CHAPTER 3—GOVERNOR AND EXECUTIVE GOVERNMENT
PART 1—INTERPRETATION
27 Governor in Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PART 2—GOVERNOR
50 28 Definition for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
29 Governor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
30 Office of Governor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
31 Requirements concerning commission and oath or affirmation . . . . . . . . . . 16
32 Termination of appointment as Governor . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
p 257 9-3-2009
p258
33 General power of Governor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

34 Power of Governor—Ministers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
35 Power of Governor—removal or suspension of officer. . . . . . . . . . . . . . . . . 17
36 Power of Governor—relief for offender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5 37 Power of Governor—public seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
38 Continued use of seal despite end of Sovereign’s reign . . . . . . . . . . . . . . . . 18
39 Statutory powers when Sovereign personally in State . . . . . . . . . . . . . . . . . 18
40 Delegation by Governor to Deputy Governor . . . . . . . . . . . . . . . . . . . . . . . . 18
41 Administration of Government by Acting Governor. . . . . . . . . . . . . . . . . . . 19
10 PART 3—CABINET AND MINISTERS OF THE STATE
42 Cabinet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
43 Appointment of Ministers of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3
15 44 Administrative arrangements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
45 Minister may act for another Minister. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
46 Member may act for a Minister. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
47 Sick leave. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PART 4—EXECUTIVE COUNCIL
20 48 Executive Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
49 Length of appointment as member of Executive Council . . . . . . . . . . . . . . . 23
50 Meetings of Executive Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
PART 5—POWERS OF THE STATE
Division 1—General
25 51 Powers of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 2—Commercial activities
52 Definitions for div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
53 Commercial activities by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
54 Commercial activities by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
30 55 Delegation by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CHAPTER 4—COURTS
56 Definitions for ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
57 Supreme Court and District Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
58 Supreme Court’s superior jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
35 59 Appointment of judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
60 Length of judge’s appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
61 Removal from office for misbehaviour or incapacity . . . . . . . . . . . . . . . . . . 27
62 Judge’s salary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
63 Protection if office abolished. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
40 CHAPTER 5—REVENUE
64 Consolidated fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
65 Requirement to pay tax, impost, rate or duty . . . . . . . . . . . . . . . . . . . . . . . . 29
66 Payment from consolidated fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
67 Charges on consolidated fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
45 68 Governor’s recommendation required for appropriation. . . . . . . . . . . . . . . . 29
4
CHAPTER 6—LANDS
69 Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
50 CHAPTER 7—LOCAL GOVERNMENT
PART 1—SYSTEM OF LOCAL GOVERNMENT
70 System of local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
71 Requirements for a local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
PART 2—PROCEDURE LIMITING DISSOLUTION OF LOCAL
55 GOVERNMENT AND INTERIM ARRANGEMENT
72 Definition for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
73 Dissolution of local government must be tabled . . . . . . . . . . . . . . . . . . . . . . 31
74 Suspension until dissolution ratified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
75 Ratification of dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
60 76 No tabling or ratification of dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
p 258 9-3-2009
p259
PART 3—SPECIAL PROCEDURES FOR PARTICULAR LOCAL

GOVERNMENT BILLS
77 Procedure for Bill affecting a local government . . . . . . . . . . . . . . . . . . . . . . 33
78 Procedure for Bill ending system of local government . . . . . . . . . . . . . . . . . 33
5 CHAPTER 8—MISCELLANEOUS
79 Issue of compliance not justiciable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
80 Continued holding of office under the Crown despite end of
Sovereign’s reign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CHAPTER 9—TRANSITIONAL PROVISIONS
10 81 Continuation of membership of Legislative Assembly . . . . . . . . . . . . . . . . . 35
82 Continuation of appointment as Governor . . . . . . . . . . . . . . . . . . . . . . . . . . 35
83 Acting Governor—previous oaths or affirmations . . . . . . . . . . . . . . . . . . . . 35
84 Continuation of appointment as Minister of State. . . . . . . . . . . . . . . . . . . . . 35
85 Continuation of appointment as Parliamentary Secretary . . . . . . . . . . . . . . . 36
15 86 Continuation of administrative arrangements . . . . . . . . . . . . . . . . . . . . . . . . 36
87 Continuation of membership of Executive Council . . . . . . . . . . . . . . . . . . . 36
88 Continuation of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
89 Continuation of District Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
90 Continuation of appointment of judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
20 91 Continuation of consolidated fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5
92 Legislative Council references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
93 Administrator references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
25 CHAPTER 10—CONSEQUENTIAL AMENDMENTS AND
REPEALS
94 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
95 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 39
30 OATHS AND AFFIRMATIONS
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 42
AMENDMENTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
COMMUNITY SERVICES (ABORIGINES) ACT 1984. . . . . . . . . . . . . . . 43
35 COMMUNITY SERVICES (TORRES STRAIT) ACT 1984. . . . . . . . . . . . 44
CONSTITUTION ACT 1867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CONSTITUTION OF QUEENSLAND 2001. . . . . . . . . . . . . . . . . . . . . . . . 45
CRIME AND MISCONDUCT ACT 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . 46
DISTRICT COURT ACT 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
40 EVIDENCE ACT 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
OATHS ACT 1867. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
PUBLIC SECTOR ETHICS ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
REGISTRATION OF BIRTHS, DEATHS AND MARRIAGES ACT 1962 52
45 STATUTORY INSTRUMENTS ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 53
SUPREME COURT ACT 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SUPREME COURT OF QUEENSLAND ACT 1991. . . . . . . . . . . . . . . . . . 54
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 57
REPEALED LAWS
50 SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 58
REPEALED IMPERIAL LAWS
ATTACHMENT 1 . . . . . . . . . . . . . . . . . . . . . . 59
ATTACHMENT 2 . . . . . . . . . . . . . . . . . . . . . . 62
ATTACHMENT 3 . . . . . . . . . . . . . . . . . . . . . . 64
55 ATTACHMENT 4 . . . . . . . . . . . . . . . . . . . . . . 66
6
Queensland
p 259 9-3-2009
p260
Constitution of Queensland 2001

Act No. 80 of 2001
An Act to consolidate particular laws relating to the Constitution of
the State of Queensland, and for other purposes
5 [Assented to 3 December 2001]
s1 8s5
The Parliament of Queensland enacts—
CHAPTER 1—PRELIMINARY
10 1 Short title
This Act may be cited as the Constitution of Queensland 2001.
2 Commencement
This Act commences on 6 June 2002.
3 Object
15 This Act declares, consolidates and modernises the Constitution of
Queensland.
Note—
However, this Act does not consolidate the following constitutional provisions because
of the special additional procedures, including approval by the majority of electors at a
20 referendum, that may be required—
Constitution Act 1867, sections 1, 2, 2A, 11A, 11B and 53
Constitution Act Amendment Act 1890, section 2
Constitution Act Amendment Act 1934, sections 3 and 4.
Further, this Act does not consolidate the Constitution Act 1867, sections 30 and 40.
25 4 References to the Sovereign
A reference in this Act to the Sovereign is a reference to the Queen or
King for the time being, and, if necessary, includes the Queen’s or King’s
heirs and successors.
5 Note in text is part of this Act
30 A note in the text of this Act is part of this Act.
s6 9s7
CHAPTER 2—PARLIAMENT
PART 1—CONSTITUTION AND POWERS OF
35 PARLIAMENT
6 The Parliament
The Constitution Act 1867, section 2A provides for the Parliament in
Queensland.
Note—
40 The Constitution Act 1867, section 2A is subject to section 53 (Certain measures to be
supported by referendum) of that Act. 1
Note also the Constitution Act Amendment Act 1934, section 3 (Parliament not to be
altered in the direction of re-establishing the Legislative Council or other body except
in accordance with this section). 2
45 7 Legislative Assembly
The Constitution Act 1867, section 1 provides for a Legislative
Assembly in Queensland.
Note—
The Constitution Act 1867, section 1 is subject to section 53 (Certain measures to be
50 supported by referendum) of that Act. 3
1 See attachment 1 for a copy of these provisions.
2 See attachment 3 for a copy of this provision.
p 260 9-3-2009
p261

s 8 10 s 11
8 Law-making power
5 The Constitution Act 1867, section 2 provides for law-making power in
Queensland.
Notes—
The Constitution Act 1867, section 2 is subject to section 53 (Certain measures to be
supported by referendum) of that Act. 4
10 See also the Australia Act 1986 (Cwlth), sections 2 (Legislative powers of Parliaments
of States), 3 (Termination of restrictions on legislative powers of Parliaments of States)
and 6 (Manner and form of making certain State laws).
9 Powers, rights and immunities of Legislative Assembly
(1) The powers, rights and immunities of the Legislative Assembly and
15 its members and committees are—
(a) the powers, rights and immunities defined under an Act; and
(b) until defined under an Act—the powers, rights and immunities,
by custom, statute or otherwise, of the Commons House of
Parliament of the United Kingdom and its members and
20 committees at the establishment of the Commonwealth.
Note—
Date of establishment of the Commonwealth—1 January 1901.
(2) In this section—
“rights” includes privileges.
25 10 Members of Legislative Assembly
The Legislative Assembly is to consist of directly elected members who
are eligible 5 to be elected by the inhabitants of the State who are eligible6 to
elect members.
11 Number of members of Legislative Assembly
30 The Legislative Assembly is to consist of 89 members.
5 See section 21 (Eligibility to be a candidate and to be elected as a member).
6 See the Electoral Act 1992.
s 12 11 s 15
35 Constitution of Queensland 2001 No. 80, 2001
12 Division of State into electoral districts
The State is to be divided into the same number of electoral districts as
there are members of the Legislative Assembly.
Note—
40 The process for dividing the State into electoral districts is provided for by the
Electoral Act 1992.
13 1 member for each electoral district
Each member of the Legislative Assembly is to represent 1 of
the electoral districts.
45 14 Power to alter system of representation
The Parliament under an Act may—
(a) vary the number of members to be elected to the Legislative
Assembly; and
(b) vary the electoral districts of the State that are to be represented
50 in the Legislative Assembly; and
(c) establish new and other electoral districts; and
(d) vary and regulate the appointment of returning officers and make
any new and other provision that it considers convenient for the
p 261 9-3-2009
p262
issuing and return of writs for the election of members to the

Legislative Assembly and the time and place of holding the
elections.
PART 2—PROCEDURAL REQUIREMENTS FOR THE
5 LEGISLATIVE ASSEMBLY
15 Summoning, proroguing and dissolving the Legislative Assembly
(1) The Governor may summon the Legislative Assembly in the
Sovereign’s name by instrument under the Public Seal of the State.
(2) The Governor may prorogue or dissolve the Legislative Assembly by
10 proclamation or otherwise whenever the Governor considers it expedient.
s 16 12 s 19
16 Duration of Legislative Assembly
The Constitution Act Amendment Act 1890, section 2 provides for the
15 duration of the Legislative Assembly.
Note—
The Constitution Act Amendment Act 1890, section 2 is subject to the Constitution Act
Amendment Act 1934, section 4 (Duration of Legislative Assembly not to be extended
except in accordance with this section). 7
20 17 Continuation of Legislative Assembly despite end of Sovereign’s
reign
If the Sovereign’s reign ends, the Legislative Assembly, as constituted
immediately before the end of the reign, continues in existence, subject to
dissolution under section 15(2), for as long as it would have continued if
25 the Sovereign’s reign had not ended.
18 Time and place for sessions of Legislative Assembly
(1) The Governor may set the times and places in Queensland for
sessions of the Legislative Assembly that the Governor considers
appropriate.
30 (2) The Governor may change the times and places if the Governor
considers change advisable and more consistent with general convenience
and the public welfare.
(3) The Governor must give sufficient notice of a change.
19 Minimum sitting requirement for Legislative Assembly
35 (1) There must be at least 2 sittings of the Legislative Assembly in every
calendar year.
(2) Six months must not pass between a sitting of the Legislative
Assembly and the next sitting of the Legislative Assembly.
40 s 20 13 s 21
PART 3—APPROPRIATION FOR LEGISLATIVE
ASSEMBLY
20 Separate appropriation for Legislative Assembly
45 (1) Legislation appropriating the consolidated fund for the Legislative
Assembly and the parliamentary service, including salaries payable under
the Parliament of Queensland Act 2001 and the Parliamentary Service Act
1988, is to be contained in a Bill separate from any other Bill about any
appropriation for any other purpose.
50 (2) This section is to be read with the Financial Administration and
Audit Act 1977.
p 262 9-3-2009
p263
PART 4—MEMBERS
Division 1—Generally
21 Eligibility to be a candidate and to be elected as a member
(1) A person is eligible to be a candidate, and to be elected, as a member
5 of the Legislative Assembly, if the person—
(a) is an adult Australian citizen living in Queensland; and
(b) has any further qualification required under an Act; and
(c) is not disqualified under an Act.
Note—
10 For an example of subsection (1)(b) and (c), see the Parliament of Queensland Act
2001 , section 64 (Qualifications to be a candidate and be elected a member).
(2) Subsection (1) is subject to any conditions imposed under an Act.
s 22 14 s 26
15 22 No member to sit or vote without first taking oath or making
affirmation
(1) No member may sit or vote in the Legislative Assembly unless the
member has taken or made the oath or affirmation of allegiance and of
office in schedule 1. 8
20 (2) The oath must be taken or the affirmation must be made in the
presence of the Governor or a person authorised by the Governor to
administer the oath or affirmation.
(3) A member “takes” the member’s seat on taking the oath or making
the affirmation.
25 Division 2—Members who are Ministers or Parliamentary Secretaries
23 Ministers
Chapter 3, part 3 9 contains provisions about the appointment of members
of the Legislative Assembly as Ministers or acting Ministers.
24 Appointment of Parliamentary Secretaries
30 (1) The Governor in Council may appoint members of the Legislative
Assembly as Parliamentary Secretaries.
(2) However, a Minister or member of Executive Council may not be
appointed as a Parliamentary Secretary.
25 Functions of Parliamentary Secretary
35 A Parliamentary Secretary has the functions decided by the Premier.
26 Length of Parliamentary Secretary’s appointment
(1) The appointment of a member of the Legislative Assembly as a
Parliamentary Secretary ends on the polling day for the next general
election after the appointment.
40 8 Schedule 1 (Oaths and affirmations)
9 Chapter 3 (Governor and Executive Government), part 3 (Cabinet and Ministers of
the State)
s 27 15 s 27
45 (2) However, the appointment ends before the polling day when any of
the following happen—
(a) the member’s seat becomes vacant otherwise than because the
Legislative Assembly is dissolved or expires by the passage of
time;
50 (b) the member resigns as Parliamentary Secretary by written notice
of resignation given to the Premier;
p 263 9-3-2009
p264
(c) the member is appointed as a Minister or member of Executive

Council or is appointed to act as a Minister under section 46;10
(d) the appointment is ended by the Governor in Council under
subsection (3).
5 (3) The Governor in Council, at any time, may end the appointment for
reasons the Governor in Council considers sufficient or for no reason.
“general election” means an election for the members of the Legislative
Assembly.
10 CHAPTER 3—GOVERNOR AND EXECUTIVE
GOVERNMENT
PART 1—INTERPRETATION
27 Governor in Council
The Governor in Council is the Governor acting with the advice of
15 Executive Council.
10 Section 46 (Member may act for a Minister)
s 28 16 s 31
PART 2—GOVERNOR
20 28 Definition for pt 2
In this part—
“Royal Sign Manual” means the signature or royal hand of the Sovereign.
29 Governor
(1) There must be a Governor of Queensland.
25 (2) The Governor must be appointed by commission under the Royal
Sign Manual.
30 Office of Governor
The Constitution Act 1867, sections 11A and 11B contain provisions
about the office of Governor.
30 Note—
The Constitution Act 1867, sections 11A and 11B are subject to section 53 (Certain
measures to be supported by referendum) of that Act. 11
31 Requirements concerning commission and oath or affirmation
(1) Before undertaking any duties as Governor, a person appointed as
35 Governor must, in the presence of the Chief Justice, or the next most senior
judge of the Supreme Court of Queensland who is able to act, (the
“judicial officer”) and of at least 2 members of Executive Council—
(a) cause the commission appointing the person as Governor to be
read and published at the seat of government in the State; and
40 (b) take or make the oath or affirmation of allegiance and of office in
schedule 1,12 subject to and in accordance with the law and
practice of the State.
(2) The judicial officer must administer the oath or affirmation.
45 12 Schedule 1 (Oaths and affirmations)
s 32 17 s 36
32 Termination of appointment as Governor
(1) The appointment of a person as Governor may be terminated only by
50 instrument under the Royal Sign Manual.
(2) The instrument takes effect on its publication in the gazette or at a
p 264 9-3-2009
p265
later time stated in the instrument.

33 General power of Governor
The Governor is authorised and required to do all things that belong to
the Governor’s office under any law.
5 34 Power of Governor—Ministers
Ministers hold office at the pleasure of the Governor who, in the exercise
of the Governor’s power to appoint and dismiss the Ministers, is not subject
to direction by any person and is not limited as to the Governor’s sources of
advice.
10 35 Power of Governor—removal or suspension of officer
(1) This section does not limit the power of the Governor under another
provision of this Act or another Act.
(2) To the extent that it is within the Governor’s power and if the
Governor considers there is sufficient reason, the Governor may remove or
15 suspend a person holding an office or place under an appointment made in
the name or under the authority of the Sovereign.
36 Power of Governor—relief for offender
(1) This section does not limit the operation of another Act.
(2) In relation to an offence against a law of the State, the Governor may
20 grant the offender, in the name and on behalf of the Sovereign—
(a) a pardon, a commutation of sentence or a reprieve of execution of
sentence for a period the Governor considers appropriate; or
(b) a remission of a fine, penalty, forfeiture or other consequence of
conviction of the offender.
25 (3) The grant may be unconditional or subject to lawful conditions.
s 37 18 s 40
37 Power of Governor—public seal
The Governor may keep and use the Public Seal of the State for sealing
30 all instruments made or passed in the Sovereign’s name.
38 Continued use of seal despite end of Sovereign’s reign
(1) This section applies if the Sovereign’s reign ends and, immediately
before the end of the reign, a seal for Queensland issued by the Sovereign
is in existence.
35 (2) The seal, until a new seal is issued by the next Sovereign, may
continue to be used as if the Sovereign’s reign had not ended.
39 Statutory powers when Sovereign personally in State
(1) When the Sovereign is personally present in the State, any power
under an Act exercisable by the Governor may be exercised by the
40 Sovereign.
(2) The Governor has the same powers in relation to an act done, or an
instrument made, by the Sovereign under this section as the Governor has
in relation to an act done, or an instrument made, by the Governor himself
or herself.
45 (3) This section does not affect or prevent the exercise of any power
under an Act by the Governor.
(4) In this section, references to the Governor or to the Sovereign include
references to the Governor, or to the Sovereign, acting with the advice of
Executive Council.
50 40 Delegation by Governor to Deputy Governor
p 265 9-3-2009
p266
(1) The Governor may delegate all or any of the Governor’s powers to
the person mentioned in subsection (2) during and only during any or all
periods—
(a) the Governor is temporarily absent for a short period from the
5 seat of government, except when administering the Government
of the Commonwealth; or
(b) the Governor is ill and there are reasonable grounds for believing
the illness will be of short duration.
s 41 19 s 41
(2) The person to whom the Governor’s powers may be delegated is—
(a) the Lieutenant-Governor; or
(b) if there is no Lieutenant-Governor in the State and able to
act—the Chief Justice; or
15 (c) if there is no Chief Justice in the State and able to act—the next
most senior judge of the Supreme Court of Queensland who is in
the State and able to act.
(3) The delegation must be by instrument under the Public Seal of the
State and specify the powers given to the delegate.
20 (4) A person exercises the Governor’s powers under a delegation as
Deputy Governor.
41 Administration of Government by Acting Governor
(1) The person mentioned in subsection (3) must administer the
Government of the State during any period—
25 (a) the office of Governor is vacant; or
(b) the Governor assumes the administration of the Government of
the Commonwealth; or
(c) the Governor is absent from the State and the Governor’s powers
are not being exercised by a Deputy Governor under section 40;
30 or
(d) the Governor is incapable of performing the duties of office and
the Governor’s powers are not being exercised by a Deputy
Governor under section 40.
(2) The Governor is taken not to be absent from the State for
35 subsection (1)(c) if the Governor is beyond the boundaries of the State in
the course of travel from 1 part of the State to another part of the State.
(3) The person who must administer the Government of the State is—
(a) the Lieutenant-Governor; or
(b) if there is no Lieutenant-Governor in the State and able to
40 act—the Chief Justice; or
(c) if there is no Chief Justice in the State and able to act—the next
most senior judge of the Supreme Court of Queensland who is in
the State and able to act.
s 42 20 s 43
(4) A person administering the Government of the State under this
section acts as Governor and performs the Governor’s functions and
exercises the Governor’s powers as Acting Governor.
(5) Before assuming the administration of the Government of the State,
50 the person must have previously taken or made, or must take or make as
p 266 9-3-2009
p267
soon as is reasonably practicable after the occasion arises for the person to
administer the State, the oath or affirmation of allegiance and of office in
schedule 1.13
(6) The oath must be taken or the affirmation made in the presence of—
5 (a) the Chief Justice or the next most senior judge of the Supreme
Court of Queensland who is able to act (the “judicial officer”);
and
(b) at least 2 members of Executive Council.
(7) The judicial officer must administer the oath or affirmation.
10 (8) The person must not continue to administer the Government of the
State after the Governor or some other person holding an office prior in title
to administer the Government of the State under subsections (1) and (3)
has, by proclamation, given notice that the Governor or other person has
assumed or resumed, or is about to assume or resume, the administration of
15 the Government of the State.
PART 3—CABINET AND MINISTERS OF THE STATE
42 Cabinet
(1) There must be a Cabinet consisting of the Premier and a number of
other Ministers appointed under section 43.
20 (2) The Cabinet is collectively responsible to the Parliament.
43 Appointment of Ministers of the State
(1) The Governor, by proclamation, may declare the offices to which
persons may be appointed as Ministers of the State.
13 Schedule 1 (Oaths and affirmations)
25 s 44 21 s 45
(2) The Governor, by commission, may appoint a person as a Minister of
the State.
(3) To remove any doubt, it is declared that the Attorney-General is a
30 Minister.
(4) The maximum number of Ministers at any time is 19.
(5) A Minister must, before entering on the duties of the
Minister’s office, take or make the oath or affirmation of allegiance and of
office in schedule 1.14
35 (6) The oath must be taken or the affirmation made in the presence of the
Governor or a person authorised by the Governor to administer the oath or
affirmation.
44 Administrative arrangements
The Governor in Council, by order published in the gazette, may make
40 administrative arrangements doing either or both of the following—
(a) distributing the public business, or any of that business, among
the Ministers;
(b) declaring either or both of the following—
(i) the administrative units, or any of the administrative units,
45 or the parts of the administrative units administered by each
Minister respectively, or any Minister;
(ii) the Acts, or any of the Acts, or the parts of the Acts
administered by each Minister respectively, or by any
Minister.
50 45 Minister may act for another Minister
p 267 9-3-2009
p268
(1) The Governor or Premier, in writing, may appoint a Minister to act as

another Minister.
(2) The Minister may be appointed to perform all or any of the other
Minister’s functions and exercise all or any of the other Minister’s powers.
5 (3) However, an appointment by the Premier may not be for a period of
more than 14 days.
s 46 22 s 48
10 46 Member may act for a Minister
(1) Without limiting section 45, the Governor, by proclamation, may
appoint a member of the Legislative Assembly to act as a Minister for any
or all periods the Minister is—
(a) absent from the State in the course of the duties of the office; or
15 (b) absent on leave given under section 47.
(2) The member may be appointed to perform all or any of a Minister’s
functions and exercise all or any of a Minister’s powers.
(3) The member, before entering on the duties of the office, must take or
make the oath or affirmation of allegiance and of office in schedule 1.15
20 (4) The oath must be taken or the affirmation made in the presence of the
affirmation.
(5) A person who is already a Minister may not be appointed under
subsection (1).
25 (6) An appointment under subsection (1) has effect despite
section 43(4).
47 Sick leave
The Governor, by proclamation, may give a Minister who is ill leave of
absence with pay for a period of not more than 6 months.
30 PART 4—EXECUTIVE COUNCIL
48 Executive Council
(1) There must be an Executive Council for the State.
(2) Executive Council consists of the persons appointed as members of
the Executive Council by the Governor by instrument under the Public Seal
35 of the State.
s 49 23 s 50
(3) A member of Executive Council must, before entering on the duties
40 of the member’s office, take or make the oath or affirmation of office and
of secrecy in schedule 1.16
(4) The oath must be taken or the affirmation made in the presence of the
affirmation.
45 49 Length of appointment as member of Executive Council
The appointment of a person as a member of Executive Council ends
only on the happening of either of the following—
(a) the person’s resignation as a member of Executive Council;
(b) the person’s removal as a member of Executive Council by the
50 Governor.
50 Meetings of Executive Council
p 268 9-3-2009
p269
(1) The Governor must preside over a meeting of Executive Council.

(2) However, if, for good reason, the Governor can not preside, a
meeting of Executive Council must be presided over by—
(a) if the Governor has appointed a member of Executive Council to
5 preside—the member; or
(b) if the Governor has not appointed a member to preside—the
member who is taken to be the most senior member present.
(3) Executive Council must not deal with any business at a meeting
unless—
10 (a) it has been summoned to meet by the Governor’s authority; and
(b) at least 2 members, other than any presiding member, are present
for the entire meeting.
s 51 24 s 53
PART 5—POWERS OF THE STATE
Division 1—General
51 Powers of the State
(1) The Executive Government of the State of Queensland (the “State”)
20 has all the powers, and the legal capacity, of an individual.
(2) The State may exercise its powers—
(a) inside and outside Queensland; and
(b) inside and outside Australia.
(3) This part does not limit the State’s powers.
25 Example—
This part does not affect any power a Minister has apart from this part to bind the State
by contract.
Division 2—Commercial activities
52 Definitions for div 2
30 In this division—
“commercial activities” includes—
(a) commercial activities that are not within the ordinary functions
of the State; and
(b) commercial activities of a competitive nature; and
35 (c) activities declared by an Act to be commercial activities;
but does not include activities declared by an Act not to be
commercial activities.
“State” includes a public sector unit.
53 Commercial activities by State
40 (1) The State may carry out commercial activities.
s 54 25 s 55
(2) This section is sufficient statutory authority for the State to carry out
a commercial activity.
45 (3) Commercial activities may be carried out—
(a) without further statutory authority; and
(b) without prior appropriation from the consolidated fund for the
purpose.
(4) Commercial activities may be carried out—
50 (a) inside and outside Queensland; and
(b) inside and outside Australia.
p 269 9-3-2009
p270
54 Commercial activities by Minister

A Minister may carry out commercial activities for the State.
55 Delegation by Minister
(1) A Minister may delegate a power of the State to an appropriately
5 qualified officer of the State.
(2) An officer of the State may subdelegate the delegated power to
another appropriately qualified officer of the State.
“appropriately qualified”, in relation to a delegated power, includes
10 having the qualifications, experience or standing appropriate to
exercise the power.
Example of standing—
A person’s level of employment in the entity in which the person is employed.
“officer of the State” means—
15 (a) a chief executive, or employee, of a public sector unit; or
(b) an officer of the public service.
s 56 26 s 59
CHAPTER 4—COURTS
20 56 Definitions for ch 4
In this chapter—
“judge” means a judge of the Supreme Court or District Court.
“office” means any of the following offices—
(a) Chief Justice of Queensland;
25 (b) President of the Court of Appeal;
(c) Senior Judge Administrator;
(d) judge of appeal of the Supreme Court;
(e) judge of the Supreme Court;
(f) Chief Judge of the District Court;
30 (g) judge of the District Court.
57 Supreme Court and District Court
There must be a Supreme Court of Queensland and a District Court of
Queensland.
58 Supreme Court’s superior jurisdiction
35 (1) The Supreme Court has all jurisdiction necessary for the
administration of justice in Queensland.
(2) Without limiting subsection (1), the court—
(a) is the superior court of record in Queensland and the supreme
court of general jurisdiction in and for the State; and
40 (b) has, subject to the Commonwealth Constitution, unlimited
jurisdiction at law, in equity and otherwise.
59 Appointment of judges
(1) The Governor in Council, by commission, may appoint a barrister or
solicitor of the Supreme Court of at least 5 years standing as a judge.
45 s 60 27 s 61
(2) A judge must, before entering on the duties of an office, take or make
the oath or affirmation of allegiance and of office in schedule 1. 17
(3) The oath must be taken or the affirmation made in the presence of the
50 Governor or a person authorised by the Governor to administer the oath or
p 270 9-3-2009
p271
affirmation.
60 Length of judge’s appointment
(1) A judge holds an office as a judge indefinitely during good
behaviour.
5 (2) However, the Supreme Court of Queensland Act 1991 and the
District Court of Queensland Act 1967 provide for a judge’s retirement.
(3) A judge may resign an office by written notice of resignation given
to the Governor.
61 Removal from office for misbehaviour or incapacity
10 (1) A judge may not be removed from an office other than under this
section.
(2) A judge may be removed from an office by the Governor in Council,
on an address of the Legislative Assembly, for—
(a) proved misbehaviour justifying removal from the office; or
15 (b) proved incapacity to perform the duties of the office.
(3) A judge’s misbehaviour justifying removal from an office is proved
only if the Legislative Assembly accepts a finding of a tribunal, stated in a
report of the tribunal, that, on the balance of probabilities, the judge has
misbehaved in a way that justifies removal from the office.
20 (4) A judge’s incapacity to perform the duties of an office is proved only
if the Legislative Assembly accepts a finding of a tribunal, stated in a report
of the tribunal, that, on the balance of probabilities, the judge is incapable
of performing the duties of the office.
(5) The tribunal is to be established under an Act.
25 (6) The tribunal has the functions, powers, protection and immunity
given under an Act.
s 62 28 s 63
30 (7) The tribunal must consist of at least 3 members.
(8) The members are to be appointed by resolution of the Legislative
Assembly.
(9) A person is eligible for appointment as a member only if the person
is a former judge or justice of a State or Federal superior court in Australia.
35 (10) However, a person is not eligible for appointment as a member if
the person and the judge who may be removed were judges of the same
court at the same time.
62 Judge’s salary
(1) A judge must be paid a salary at the rate applicable to the judge’s
40 office.
(2) The amount of the salary may not be decreased.
(3) The payment of the amount for judges’ salaries from the
consolidated fund is authorised and the consolidated fund is appropriated
for the purpose.
45 63 Protection if office abolished
(1) This section applies if an office held by a judge is abolished either
directly or by abolition of a court or part of a court.
(2) The judge is entitled at least, without loss of salary, to be appointed
to, and to hold, another office of equivalent or higher status in the same
50 court in which the judge held the abolished office or in another court,
p 271 9-3-2009
p272
unless the judge already holds that type of office.

(3) The entitlement mentioned in subsection (2)—
(a) continues for the period during which the judge would have been
entitled to hold the abolished office, subject to removal under
5 section 61; and
(b) lapses if the judge fails to take up an appointment to the other
office or resigns from it.
s 64 29 s 68
10 CHAPTER 5—REVENUE
64 Consolidated fund
All taxes, imposts, rates and duties and other revenues of the State are to
form 1 consolidated fund to be appropriated for the public service of the
State in the way, and subject to the charges, specified by an Act.
15 65 Requirement to pay tax, impost, rate or duty
A requirement to pay a tax, impost, rate or duty of the State must be
authorised under an Act.
66 Payment from consolidated fund
(1) The payment of an amount from the consolidated fund must be
20 authorised under an Act.
(2) Further, the Act authorising the payment must specify the purpose
for which the payment is made.
(3) This section does not apply in relation to the costs, charges and
expenses relating to the collection and management of the consolidated
25 fund.
67 Charges on consolidated fund
(1) The consolidated fund is permanently charged with all the costs,
charges and expenses relating to the collection and management of the
fund.
30 (2) The costs, charges and expenses are the first charge on the
consolidated fund.
(3) However, the costs, charges and expenses may be reviewed and
audited under an Act.
68 Governor’s recommendation required for appropriation
35 (1) The Legislative Assembly must not originate or pass a vote,
resolution or Bill for the appropriation of—
(a) an amount from the consolidated fund; or
s 69 30 s 71
40 (b) an amount required to be paid to the consolidated fund;
that has not first been recommended by a message of the Governor.
(2) The message must be given to the Legislative Assembly during the
session in which the vote, resolution or Bill is intended to be passed.
CHAPTER 6—LANDS
45 69 Lands
(1) The Constitution Act 1867, section 3018 gives the Parliament
law-making power in relation to the waste lands of the Crown in
Queensland.
(2) The Constitution Act 1867, section 40 vests particular rights in
50 relation to the waste lands of the Crown in Queensland in the Parliament.
p 272 9-3-2009
p273
CHAPTER 7—LOCAL GOVERNMENT

PART 1—SYSTEM OF LOCAL GOVERNMENT
70 System of local government
(1) There must be a system of local government in Queensland.
5 (2) The system consists of a number of local governments.
71 Requirements for a local government
(1) A local government is an elected body that is charged with the good
rule and local government of a part of Queensland allocated to the body.
18 See attachment 4 for a copy of the Constitution Act 1867, sections 30 and 40.
10 s 72 31 s 74
(2) Another Act, whenever made, may provide for the way in which a
local government is constituted and the nature and extent of its functions
and powers.
15 (3) Despite subsection (1), another Act, whenever made, may provide
for the appointment of 1 or more bodies or persons to perform all or any of
a local government’s functions and to exercise all or any of a local
government’s powers and to be taken to be a local government—
(a) during a suspension of a local government’s councillors under
20 section 74; or
(b) if a local government is dissolved or unable to be properly
elected—until a local government has been properly elected.
(4) In subsection (3)—
“local government” includes a joint local government.
25 PART 2—PROCEDURE LIMITING DISSOLUTION OF
LOCAL GOVERNMENT AND INTERIM
ARRANGEMENT
72 Definition for pt 2
In this part—
30 “Minister” means the Minister who administers the provision under which
the local government may be dissolved.
73 Dissolution of local government must be tabled
The Minister must, within 14 days after an instrument purporting to
dissolve a local government is made, table a copy of the instrument in the
35 Legislative Assembly.
74 Suspension until dissolution ratified
From the time an instrument purporting to dissolve a local government is
made until it is ratified under section 75 or its effect ends under section 76,
s 75 32 s 76
it has the effect only of suspending the local government’s councillors
from office.
Note—
Section 71 permits another Act to provide for the appointment of 1 or more bodies or
45 persons to perform all or any functions and exercise all or any powers of the local
government and to be taken to be the local government during the suspension.
75 Ratification of dissolution
(1) The Legislative Assembly, on the Minister’s motion, may ratify the
dissolution of the local government within 14 sitting days after a copy of
50 the instrument purporting to dissolve the local government is tabled.
p 273 9-3-2009
p274
(2) If the Legislative Assembly ratifies the dissolution, the local

government is dissolved in accordance with the instrument from the time
of ratification.
76 No tabling or ratification of dissolution
5 (1) This section applies if—
(a) a copy of the instrument purporting to dissolve the local
government is not tabled under section 73; or
(b) the Legislative Assembly refuses to ratify the dissolution of a
local government moved by the Minister; or
10 (c) at the end of 14 sitting days after a copy of the instrument
purporting to dissolve the local government is tabled—
(i) the Minister has not moved that the dissolution be ratified;
or
(ii) the Legislative Assembly has not ratified the dissolution,
15 even though the Minister has moved that it be ratified.
(2) The effect of the instrument purporting to dissolve the local
government ends.
(3) The suspension from office of the local government’s councillors
ends and they are reinstated in their respective offices.
20 (4) The appointment of a body or person appointed to perform all or any
functions and exercise all or any powers of the local government because
of its purported dissolution ends.
s 77 33 s 78
25 PART 3—SPECIAL PROCEDURES FOR PARTICULAR
LOCAL GOVERNMENT BILLS
77 Procedure for Bill affecting a local government
(1) This section applies for a Bill for an Act that would—
(a) be administered by a Minister who administers a provision of the
30 Local Government Act 1993; and
(b) affect local governments generally or any of them.
(2) The member of the Legislative Assembly who proposes to introduce
the Bill in the Legislative Assembly must, if the member considers it
practicable, arrange for a summary of the Bill to be given to a body
35 representing local governments in the State a reasonable time before the
Bill is introduced in the Legislative Assembly.
78 Procedure for Bill ending system of local government
(1) This section applies for a Bill for an Act ending the system of local
government in Queensland.
40 (2) The Bill may be presented for assent only if a proposal that the
system of local government should end has been approved by a majority
vote of the electors voting on the proposal.
(3) The Bill has no effect as an Act if assented to after presentation in
contravention of subsection (2).
45 (4) The vote about the proposal must be taken on a day that is more than
1 month but less than 6 months before the Bill is introduced in the
Legislative Assembly.
(5) The vote must be taken in the way prescribed by an Act.
(6) An elector may bring a proceeding in the Supreme Court for a
50 declaration, injunction or other remedy to enforce this section either before
p 274 9-3-2009
p275
or after the Bill is presented for assent.

“elector” means a person entitled to vote at a general election for members
of the Legislative Assembly.
5 s 79 34 s 80
CHAPTER 8—MISCELLANEOUS
79 Issue of compliance not justiciable
Without affecting the justiciability of any other issue under this Act, it is
10 declared that the issue of compliance with section 31, 40, 41, 48 or 5019 is
not justiciable in any court.
80 Continued holding of office under the Crown despite end of
Sovereign’s reign
(1) This section applies if the Sovereign’s reign ends and a person is
15 holding an office under the Crown immediately before the end of the
Sovereign’s reign.
(2) The person continues holding the office for as long as the person
would have held the office if the Sovereign’s reign had not ended.
(3) If, before the end of the Sovereign’s reign, the person had taken any
20 oath or made any affirmation provided for under an Act, the person is not
required, because the Sovereign’s reign has ended, to again take the oath or
make the affirmation.
(4) If the oath taken or the affirmation made before the end of the
Sovereign’s reign related only to the then reigning Sovereign, the oath or
25 affirmation is taken to relate to the then reigning Sovereign and the
Sovereign’s heirs and successors.
19 Section 31 (Requirements concerning commission and oath or affirmation),
40 (Delegation by Governor to Deputy Governor), 41 (Administration of
Government by Acting Governor), 48 (Executive Council) or 50 (Meetings of
30 Executive Council)
s 81 35 s 84
CHAPTER 9—TRANSITIONAL PROVISIONS
81 Continuation of membership of Legislative Assembly
35 A person who, immediately before the commencement of section 10, 20
was a member of the Legislative Assembly continues as a member of the
Legislative Assembly and is taken to have satisfied the oath or affirmation
requirement under section 22. 21
82 Continuation of appointment as Governor
40 The person who, immediately before the commencement of section 29, 22
was the Governor continues as the Governor and is taken to have satisfied
the requirements under section 31 23 concerning the commission and the
oath or affirmation.
83 Acting Governor—previous oaths or affirmations
45 A person who, before the commencement of section 41,24 has taken the
oaths or made the affirmations required under the Constitution (Office of
Governor) Act 1987, section 9(1),25 as in force before it was repealed, is
taken to have satisfied the oath or affirmation requirement under section 41.
84 Continuation of appointment as Minister of State
50 A person who, immediately before the commencement of section 43, 26
was a Minister continues as a Minister of the State and is taken to have
p 275 9-3-2009
p276
satisfied the oath or affirmation requirement under section 43.

20 Section 10 (Members of Legislative Assembly)
21 Section 22 (No member to sit or vote without first taking oath or making
affirmation)
5 22 Section 29 (Governor)
23 Section 31 (Requirements concerning commission and oath or affirmation)
24 Section 41 (Administration of Government by Acting Governor)
25 Constitution (Office of Governor) Act 1987, section 9 (Administration of
Government in absence etc. of Governor)
10 26 Section 43 (Appointment of Ministers of the State)
s 85 36 s 89
85 Continuation of appointment as Parliamentary Secretary
A person who, immediately before the commencement of section 24, 27
15 was a Parliamentary Secretary continues as a Parliamentary Secretary.
86 Continuation of administrative arrangements
The administrative arrangements as in force immediately before the
commencement of section 4428 are not affected by the section’s
commencement.
20 87 Continuation of membership of Executive Council
A person who, immediately before the commencement of section 48, 29
was a member of Executive Council continues as a member of Executive
Council and is taken to have satisfied the oath or affirmation requirement
under section 48.
25 88 Continuation of Supreme Court
(1) The Supreme Court of Queensland as formerly established as the
superior court of record in Queensland is continued in existence.
(2) This Act does not—
(a) take away, lessen or impair any jurisdiction or power that was,
30 immediately before the commencement of section 58, 30 vested in
or capable of being exercised by the court or 1 or more judges of
the court; or
(b) affect anything done or existing in relation to the court before the
commencement of section 58.
35 89 Continuation of District Court
(1) The District Court as formerly established is continued in existence
as the District Court of Queensland.
27 Section 24 (Appointment of Parliamentary Secretaries)
28 Section 44 (Administrative arrangements)
40 29 Section 48 (Executive Council)
30 Section 58 (Supreme Court’s superior jurisdiction)
s 90 37 s 91
(2) This Act does not—
45 (a) take away, lessen or impair any jurisdiction or power that was,
immediately before the commencement of section 57, 31 vested in
or capable of being exercised by the court or 1 or more judges of
the court; or
(b) affect anything done or existing in relation to the court before the
50 commencement of section 57.32
90 Continuation of appointment of judges
(1) A person who, immediately before the commencement of
section 59,33 was a Supreme Court judge or District Court judge continues
p 276 9-3-2009
p277
as a Supreme Court judge or District Court judge.

(2) A person who, immediately before the commencement of section 59,
held an office, is taken to have satisfied the oath or affirmation requirement
under section 59 in relation to the office.
5 (3) In this section—
“office” see section 56.
91 Continuation of consolidated fund
The consolidated fund in existence immediately before the
commencement of section 6434 is taken to be the consolidated fund.
10 31 Section 57 (Supreme Court and District Court)
32 See also the District Court of Queensland Act 1967, section 140
(Transitional—change of name to District Court of Queensland).
33 Section 59 (Appointment of judges)
34 Section 64 (Consolidated fund)
15 s 92 38 s 95
92 Legislative Council references
A reference in an Act or document to the legislature, or to the
Parliament, or to both Houses of Parliament, or other reference, that, if the
20 Constitution Act Amendment Act 1922, as repealed by this Act, had not
been passed, would be taken to include a reference to the Legislative
Council, is to be taken to refer only to the Queen and the Legislative
Assembly of Queensland, or only to the Legislative Assembly, as the
context may require.
25 Note—
The Constitution Act Amendment Act 1922 abolished the Legislative Council of
Queensland.
93 Administrator references
If, before the commencement of section 41,35 there is a reference in an
30 Act or document to an Administrator, then, from the commencement, if the
context permits, the reference is taken to be a reference to an Acting
Governor.
CHAPTER 10—CONSEQUENTIAL AMENDMENTS
AND REPEALS
35 94 Amendments
An Act mentioned in schedule 236 is amended as set out in the schedule.
95 Repeals
(1) The laws mentioned in schedule 3 37 are repealed.
(2) The Imperial laws mentioned in schedule 4 38 are repealed so far as
40 they are part of the law of Queensland.
35 Section 41 (Administration of Government by Acting Governor)
36 Schedule 2 (Amendments)
37 Schedule 3 (Repealed laws)
38 Schedule 4 (Repealed Imperial laws)
45 39
SCHEDULE 1
OATHS AND AFFIRMATIONS
sections 22, 31, 41, 43, 46, 48 and 5939
50 Oath or affirmation of allegiance and of office—member of the
Legislative Assembly
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do
p 277 9-3-2009
p278
sincerely promise and affirm) that

I will be faithful and bear true Allegiance to Her (or His) Majesty..(name
of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs
and successors, according to law; and
5 I will well and truly serve the people of Queensland and faithfully
perform the duties and responsibilities of a member of the Legislative
Assembly to the best of my ability and according to law.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Governor and Acting
10 Governor
15 and successors, according to law; and
I will well and truly serve Her (or His) Majesty..(name of Sovereign).. in
the office of Governor of Queensland (or, for an Acting Governor—in the
office of Acting Governor of Queensland) in the Commonwealth of
39 Sections 22 (No member to sit or vote without first taking oath or making
20 affirmation), 31 (Requirements concerning commission and oath or affirmation), 41
(Administration of Government by Acting Governor), 43 (Appointment of Ministers
of the State), 46 (Member may act for a Minister), 48 (Executive Council) and 59
(Appointment of judges)
SCHEDULE 1 (continued)
25 40
Australia, and will duly perform the functions and exercise the powers of
the office according to the best of my ability, skill and knowledge; and
I will, in all things associated with the office, duly and impartially
30 administer justice in Queensland.
Oath or affirmation of allegiance and of office—Minister of the State
and acting Minister of the State
35 sincerely promise and affirm) that
I will well and truly serve the people of Queensland in the office of
40 (portfolio title) (or, for an acting Minister of the State—acting in the office
of (portfolio title)).
Oath or affirmation of office and of secrecy—member of Executive
Council
45 I, ..(name).., do sincerely promise and swear (or, for an affirmation—do
I will, to the best of my judgment and ability, faithfully advise and assist
the Governor or other officer performing a function or exercising a power
of the Governor as Deputy Governor or Acting Governor, in all matters
50 brought under my consideration as a member of the Executive Council of
Queensland; and
p 278 9-3-2009
p279
I will not disclose the confidential deliberations of the council.

41
Oath or affirmation of allegiance and of office—Judge
10 of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs
As a judge of the Supreme Court of Queensland (or District Court of
Queensland) (and/or as (title of other office, for example, Chief Justice of
Queensland)), I will at all times and in all things do equal justice to all
15 persons and discharge the duties and responsibilities of the office according
to law to the best of my knowledge and ability without fear favour or
affection.
42
SCHEDULE 2
AMENDMENTS
section 94
ACTS INTERPRETATION ACT 1954
25 1 Section 33(1)(a), ‘Crown’—
omit, insert—
‘State’.
2 Section 33(14)—
omit.
30 3 Section 36, definitions “Administrator”, “Constitution of
Queensland”, “Deputy Governor”, “District Court” and
“Governor”—
omit.
4 Section 36—
35 insert—
‘ “Acting Governor” means a person administering the Government of the
State under the Constitution of Queensland 2001, section 41.40
“Constitution of Queensland” means the following—
(a) Constitution of Queensland 2001;
40 (b) Constitution Act 1867;
(c) Constitution Act Amendment Act 1890;
40 Constitution of Queensland 2001, section 41 (Administration of Government by
Acting Governor)
45 43
(d) Constitution Act Amendment Act 1934.
“Deputy Governor” means a person exercising a power of the Governor
under a delegation under the Constitution of Queensland 2001,
50 section 40.41’.
p 279 9-3-2009
p280
“Governor”—
(a) for Queensland—has the meaning given by the Constitution Act
1867, section 11A(3);42 or
(b) for another State (other than the Australian Capital Territory or
5 the Northern Territory)—means the State’s Governor, and
includes a person administering the State’s Government; or
(c) for the Northern Territory—means the Territory’s Administrator,
and includes a person administering the Territory’s
Government.’.
10 5 Part 12—
omit.
COMMUNITY SERVICES (ABORIGINES) ACT 1984
1 Section 13F(2)—
omit, insert—
15 ‘(2) Subsection (1) is subject to the Constitution of Queensland 2001,
chapter 7, part 2.43’.
41 Constitution of Queensland 2001, section 40 (Delegation by Governor to Deputy
Governor)
42 Constitution Act 1867, section 11A (Office of Governor)
20 43 Constitution of Queensland 2001, chapter 7 (Local Government), part 2 (Procedure
limiting dissolution of local government and interim arrangement)
44
25 COMMUNITY SERVICES (TORRES STRAIT) ACT 1984
1 Section 13F(2)—
omit, insert—
‘(2) Subsection (1) is subject to the Constitution of Queensland 2001,
chapter 7, part 2.44’.
1 Preamble—
omit.
2 Sections 3 to 10—
omit.
35 3 Heading before section 12—
relocate as heading before section 11A.
4 Section 12 to heading before section 30—
omit.
5 Before section 30, as a heading—
40 insert—
‘CROWN LAND’.
44 Constitution of Queensland 2001, chapter 7 (Local Government), part 2 (Procedure
45 45
6 Heading before section 34 to section 39—
omit.
7 Section 40(2)—
50 omit.
8 Sections 40A to 52—
p 280 9-3-2009
p281
omit.
9 Heading before section 54 to section 60—
omit.
CONSTITUTION OF QUEENSLAND 2001
5 1 Title, ‘, and for other purposes’—
omit.
46
10 CRIME AND MISCONDUCT ACT 2001
1 Section 70—
omit, insert—
‘70 Giving material to tribunal inquiring into judge’s misbehaviour
or incapacity
15 ‘(1) This section applies if a tribunal established under the Constitution
of Queensland 2001, section 6145 is inquiring into whether a Supreme
Court judge or a District Court judge has misbehaved in a way that justifies
removal from a judicial office or is incapable of performing the duties of a
judicial office.
20 ‘(2) At the tribunal’s request, the commission must give the tribunal all
material in the commission’s possession relevant to the subject of the
tribunal’s inquiry, including any relevant report of the commission.’.
DISTRICT COURT ACT 1967
1 Title, after ‘Court’—
25 insert—
‘of Queensland’.
2 Section 1, after ‘Court’—
insert—
‘of Queensland’.
30 45 Constitution of Queensland 2001, section 61 (Removal from office for misbehaviour
or incapacity)
47
35 3 Section 3, definitions “Court” or “District Court” and “judge” or
“District Court judge”—
omit.
4 Section 3—
insert—
40 ‘ “court” means the District Court of Queensland.
“District Court” means the District Court of Queensland.
“District Court judge” means a judge of the District Court of Queensland.
“judge” means a judge of the District Court of Queensland.’.
5 Section 3, definition “District Courts jurisdiction Act”, ‘Courts’—
45 omit, insert—
‘Court’.
6 Section 3, definition “precincts”, ‘a’—
omit, insert—
‘the’.
50 7 Sections 4, 9, 14(3) and 15—
p 281 9-3-2009
p282
omit.
8 Section 10(1), ‘District Courts.’—
omit, insert—
‘the District Court of Queensland. 46’.
5 46 See the Constitution of Queensland 2001, section 59 (Appointment of judges) for
the oath or affirmation requirement.
48
10 9 After section 10—
insert—
‘10A Seniority
‘(1) The Chief Judge is senior to all other judges of the court.
‘(2) The other judges have seniority in relation to each other according to
15 the dates of their commissions.
‘(3) If the commissions of 2 or more judges have the same date, the
judges have seniority in relation to each other according to the seniority
assigned by their commissions, or, in the absence of an assignment,
according to the order of their being sworn in.’.
insert—
‘140 Transitional—change of name to District Court of Queensland
‘(1) To remove doubt, it is declared that changing the court’s name from
the ‘District Court’ to the ‘District Court of Queensland’ does not affect the
25 following—
(a) any jurisdiction or power of the court or 1 or more judges of the
court;
(b) anything done or existing in relation to the court;
(c) a proceeding pending in the court;
30 (d) any appointment;
(e) the seniority of a judge;
(f) any principle or rule of law or equity;
(g) any right, privilege or liability.47
‘(2) If, before the commencement of this section, there is a reference in
35 an Act or document to the District Court Act 1967, then, from the
commencement, if the context permits, the reference is taken to be a
reference to the District Court of Queensland Act 1967.
47 See also the Constitution of Queensland 2001, section 89 (Continuation of District
Court).
40 SCHEDULE 2 (continued)
49
‘(3) If, before the commencement of this section, there is a reference in
an Act or document to the District Court, including a reference to the
45 District Court by virtue of section 139, then, from the commencement, if
the context permits, the reference is taken to be a reference to the District
Court of Queensland.’.
EVIDENCE ACT 1977
1 Section 41, heading—
50 omit, insert—
‘41 Public Seal of the State’.
p 282 9-3-2009
p283
2 Section 41, ‘seal of Queensland’—

omit, insert—
‘Public Seal of the State’.
3 Part 4—
5 insert—
‘43A Administrative arrangements to be judicially noticed
‘Judicial notice must be taken of the administrative arrangements set out
in an order published in the gazette and purportedly made under the
Constitution of Queensland 2001, section 44.48’.
10 4 Section 58(b), ‘Constitution Act 1867’—
omit, insert—
‘Constitution of Queensland 2001’.
48 Constitution of Queensland 2001, section 44 (Administrative arrangements)
15 50
5 Part 5, division 1—
insert—
‘58A Proof of document under Royal Sign Manual
20 ‘Evidence of a document under the signature or royal hand of the
Sovereign in relation to the State or in relation to any matter concerning the
State (the “Royal Sign Manual document”) may be given by the
production of a document purporting to be a copy of the Royal Sign
Manual document certified by the chief executive of the department dealing
25 with matters under the Constitution of Queensland 2001.’.
LOCAL GOVERNMENT ACT 1993
1 Section 164(2)—
omit, insert—
‘(2) Subsection (1) is subject to the Constitution of Queensland 2001,
30 chapter 7, part 2.49’.
OATHS ACT 1867
1 Section 3, heading—
omit, insert—
‘3 Oaths for justices of the peace and others’.
35 2 Section 3(1), ‘judges and’—
omit.
49 Constitution of Queensland 2001, chapter 7 (Local Government), part 2 (Procedure
40 51
3 Section 3(1), ‘respectively’—
omit.
4 Section 3(1), from ‘a judge’ to ‘Queensland]’—
45 omit, insert—
‘a justice of the peace for the State of Queensland’.
5 Section 3(1), ‘the laws and statutes of the realm and of this
State’—
omit, insert—
50 ‘law’.
6 Section 3(2), ‘District Court judges and’—
p 283 9-3-2009
p284
omit.
7 Section 5A(1), ‘for the oath of allegiance prescribed by section 4 of
the Constitution Act 1867, and for any oath of allegiance
prescribed by or under any other Act’—
5 omit, insert—
‘and for any oath of allegiance prescribed under any Act, other than the
Constitution of Queensland 2001,’.
52
PUBLIC SECTOR ETHICS ACT 1994
1 Schedule, definition “Parliamentary Secretary”, ‘Constitution Act
1867, section 57.’—
omit, insert—
15 ‘Constitution of Queensland 2001, section 24.50’.
REGISTRATION OF BIRTHS, DEATHS AND
MARRIAGES ACT 1962
1 After section 29D—
insert—
20 ‘29E Commemorative birth certificates
‘(1) Issuing a commemorative birth certificate is a commercial activity
for the Constitution of Queensland 2001, section 52.
‘(2) In this section—
“adopted children register” means the adopted children register kept
25 under the Adoption of Children Act 1964.
“birth register” means the register of births kept under this Act.
“commemorative birth certificate” is an extract, about a child from the
relevant entry or duplicate entry in an adopted children register or
birth register, that—
30 (a) contains the particulars prescribed under a regulation; and
(b) is certified by the registrar general; and
(c) is more decorative than another extract about the child from the
adopted children register or birth register.’.
50 Constitution of Queensland 2001, section 24 (Appointment of Parliamentary
35 Secretaries)
53
STATUTORY INSTRUMENTS ACT 1992
40 1 Schedule 1A—
omit, insert—
‘SCHEDULE 1A
‘STATUTORY RULES THAT ARE NOT SUBORDINATE
LEGISLATION
45 section 9(2)(c)
1. A statutory rule under the Constitution of Queensland 2001, section 15,
40, 41, 43 or 4451
2. A proclamation under the Senate Elections Act 1960, section 352’.
SUPREME COURT ACT 1995
p 284 9-3-2009
p285
1 Part 9, divisions 2, 4 and 5—

omit.
2 Section 202—
omit.
5 51 Constitution of Queensland 2001, section 15 (Summoning, proroguing and
dissolving the Legislative Assembly), 40 (Delegation by Governor to Deputy
Governor), 41 (Administration of Government by Acting Governor), 43
(Appointment of Ministers of the State) or 44 (Administrative arrangements)
52 Section 3 (Power to fix dates for election and place of nomination)
54
3 Part 9, divisions 3 and 6 to 16—
renumber as part 9, divisions 2 to 12.
15 SUPREME COURT OF QUEENSLAND ACT 1991
1 Part 2, division 1 heading—
omit, insert—
‘Division 1—Jurisdiction and composition’.
2 Sections 7 and 8—
20 omit.
3 Section 12—
omit, insert—
‘12 Appointment of Chief Justice
‘(1) The Governor in Council may, by commission, appoint a judge to be
25 Chief Justice. 53
‘(2) A judge may be appointed Chief Justice either at the time of the
person’s appointment as a judge or at any time afterwards.
‘12A Chief Justice continues in office while judge
‘(1) The Chief Justice holds office as Chief Justice while the person
30 holds office as a judge.
‘(2) The Chief Justice may resign office as Chief Justice without
resigning office as a judge.’.
53 See the Constitution of Queensland 2001, section 59 (Appointment of judges) for
55
4 Section 25—
omit.
40 5 Section 33(1), ‘appeal.’—
omit, insert—
‘appeal. 54’.
6 Section 36(1), ‘Appeal.’—
omit, insert—
45 ‘Appeal.55’.
7 Section 44(a) and (b)—
omit, insert—
‘(a) the Constitution of Queensland 2001, section 62; 56 and’.
8 Section 44(c) to (e)—
50 renumber as section 44(b) to (d).
9 Section 57(1), ‘Administrator.’—
p 285 9-3-2009
p286
omit, insert—
‘Administrator. 57’.
5 55 See the Constitution of Queensland 2001, section 59 (Appointment of judges) for
56 The Constitution of Queensland 2001, section 62 (Judge’s salary)
56
10 After section 119C—
insert—
15 ‘119D Judicial office subject to Constitution of Queensland 2001
‘A provision of this Act that provides for a judge or judge of appeal to
hold another judicial office while the person holds office as a judge or
judge of appeal is subject to the Constitution of Queensland 2001,
section 61.58
insert—
‘138 Transitional provision for Constitution of Queensland 2001
‘The person who, immediately before the commencement of
section 12,59 was the Chief Justice continues as the Chief Justice.’.
25 58 The Constitution of Queensland 2001, section 61 (Removal from office for
misbehaviour or incapacity)
59 Section 12 (Appointment of Chief Justice)
57
30 SCHEDULE 3
REPEALED LAWS
section 95(1)
Legislative Assembly Act 1867 31 Vic No. 2160
Queensland Coast, Islands and Waters Proclamation dated 22 August 1872
35 and published in the gazette on 24 August 1872 at pages 1325–6
Officials in Parliament Act 1896 60 Vic No. 3
Demise of the Crown Act 1910 1 Geo 5 No. 21
Constitution Act Amendment Act 1922 12 Geo 5 No. 32
Royal Powers Act 1953 2 Eliz 2 No. 29
40 Australia Acts (Request) Act 1985 No. 69
Proclamation of Letters Patent for Governor dated 6 March 1986 and
published in the gazette on 8 March 1986 at pages 903–6
Constitution (Office of Governor) Act 1987 No. 7361
Acts Interpretation Regulation 1997 SL No. 28 62
45 60 The provisions of this Act are dealt with by this Act and the Parliament of
Queensland Act 2001.
61 The Parliament of Queensland Act 2001 repealed the Constitution Act Amendment
Act 1896.
62 The provisions of this regulation are dealt with by the Registration of Births, Deaths
50 and Marriages Act 1962 , section 29E (Commemorative birth certificates).
58
SCHEDULE 4
p 286 9-3-2009
p287
REPEALED IMPERIAL LAWS

section 95(2)
Australian Constitutions Act 1850 13 & 14 Vic. c. 59
New South Wales Constitution Act 1855 18 & 19 Vic. c. 54
5 Order in Council dated 6 June 1859 mentioned in the preamble to the
Constitution Act 1867
Australian Constitutions Act 1862 25 & 26 Vic. c. 11
Colonial Letters Patent Act 1863 26 & 27 Vic. c. 76
Letters Patent for Governor dated 6 March 1986 and published in the
10 gazette on 8 March 1986 at pages 903–6
59
ATTACHMENT 1
sections 6, 7, 8 and 30
15 CONSTITUTION ACT 1867, SECTIONS 1, 2, 2A, 11A, 11B
AND 53
The Constitution Act 1867—
1 Legislative Assembly
There shall be within the said Colony of Queensland a Legislative
20 Assembly.
2 Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by
and with the advice and consent of the said Assembly to make laws for the
peace welfare and good government of the colony in all cases whatsoever.
25 2A The Parliament
(1) The Parliament of Queensland consists of the Queen and the
Legislative Assembly referred to in sections 1 and 2.
(2) Every Bill, after its passage through the Legislative Assembly, shall
be presented to the Governor for assent by or in the name of the Queen and
30 shall be of no effect unless it has been duly assented to by or in the name of
the Queen.
..........
11A Office of Governor
(1) The Queen’s representative in Queensland is the Governor who shall
35 hold office during Her Majesty’s pleasure.
(2) Abolition of or alteration in the office of Governor shall not be
effected by an Act of the Parliament except in accordance with section 53.
60
40 (3) In this Act and in every other Act a reference to the Governor shall
be taken—
(a) to be a reference to the person appointed for the time being by
the Queen by Commission under Her Majesty’s Royal Sign
Manual to the office of Governor of the State of Queensland; and
45 (b) to include any other person appointed by dormant or other
Commission under the Royal Sign Manual to administer the
Government of the State of Queensland.
11B Definition of Royal Sign Manual
In section 11A the expression “Royal Sign Manual” means the signature
50 or royal hand of the Sovereign.
p 287 9-3-2009
p288
..........
53 Certain measures to be supported by referendum
(1) A Bill that expressly or impliedly provides for the abolition of or
alteration in the office of Governor or that expressly or impliedly in any
5 way affects any of the following sections of this Act namely—
this section 53
shall not be presented for assent by or in the name of the Queen unless it
has first been approved by the electors in accordance with this section and a
10 Bill so assented to consequent upon its presentation in contravention of this
subsection shall be of no effect as an Act.
(2) On a day not sooner than two months after the passage through the
Legislative Assembly of a Bill of a kind referred to in subsection (1) the
question for the approval or otherwise of the Bill shall be submitted to the
15 electors qualified to vote for the election of members of the Legislative
Assembly according to the provisions of the Elections Act 1915–1973 and
of any Act amending the same or of any Act in substitution therefor.
Such day shall be appointed by the Governor in Council by Order in
Council.
20 ATTACHMENT 1 (continued)
61
(3) When the Bill is submitted to the electors the vote shall be taken in
such manner as the Parliament of Queensland prescribes.
presented to the Governor for reservation thereof for the signification of
the Queen’s pleasure.
Legislative Assembly is entitled to bring proceedings in the Supreme Court
30 for a declaration, injunction or other remedy to enforce the provisions of
this section either before or after a Bill of a kind referred to in subsection
(1) is presented for assent by or in the name of the Queen.
(6) The provisions of this section shall in no way affect the operation of
35 The Constitution Act Amendment Act of 1934.
.........
ATTACHMENT 1 (continued)
62
40 ATTACHMENT 2
section 16
CONSTITUTION ACT AMENDMENT ACT 1890,
SECTION 2
The Constitution Act Amendment Act 1890—
45 2 Duration of Legislative Assembly to be 3 years only
Every Legislative Assembly hereafter to be summoned and chosen shall
continue for 3 years from the day appointed for the return of the writs for
choosing the same, and no longer; subject nevertheless to be sooner
dissolved by the Governor.
50 CONSTITUTION ACT AMENDMENT ACT 1934,
p 288 9-3-2009
p289
SECTION 4
4 Duration of Legislative Assembly not to be extended except in
accordance with this section
5 (1) The provisions of section two of “The Constitution Act Amendment
Act of 1890” (referred to in the preamble to this Act) shall not be amended
in the direction of extending the period of three years, which, as provided
by the said section two, is the period for which any Legislative Assembly,
now or hereafter summoned and chosen, shall continue from the day
10 appointed for the return of the writs for choosing the same and no longer
(subject, nevertheless, to be sooner dissolved by the Governor), nor shall
any other Act or law relating to the Constitution be passed extending such
period of three years as aforesaid, except in the manner provided by this
section.
15 63
(2) A Bill for any purpose within subsection (1) of this section shall not
be presented to the Governor for the reservation thereof for the
signification of His Majesty’s pleasure, or for the Governor’s Assent, or be
20 in any other way assented to, until the Bill has been approved by the
electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill
through the Legislative Assembly, the question for the approval or
otherwise of the Bill shall be submitted to the electors qualified to vote for
25 the election of members of the Legislative Assembly according to the
provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the
same or in substitution therefor.
30 such manner as the Legislature prescribes.
presented to the Governor for the reservation thereof for the signification
of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal
35 or amendment of this section.
ATTACHMENT 2 (continued)
64
ATTACHMENT 3
40 section 6
CONSTITUTION ACT AMENDMENT ACT 1934,
SECTION 3
3 Parliament not to be altered in the direction of re-establishing the
45 Legislative Council or other body except in accordance with this
section
(1) The Parliament of Queensland (or, as sometimes called, the
Legislature of Queensland), constituted by His Majesty the King and the
Legislative Assembly of Queensland in Parliament assembled shall not be
50 altered in the direction of providing for the restoration and/or constitution
p 289 9-3-2009
p290
and/or establishment of another legislative body (whether called the

“Legislative Council,” or by any other name or designation, in addition to
the Legislative Assembly) except in the manner provided in this section.
(2) A Bill for any purpose within subsection one of this section shall not
5 be presented to the Governor for the reservation thereof for the
signification of His Majesty’s pleasure, or for the Governor’s Assent, or be
in any other way assented to, until the Bill has been approved by the
electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill
10 through the Legislative Assembly, the question for the approval or
otherwise of the Bill shall be submitted to the electors qualified to vote for
the election of members of the Legislative Assembly according to the
provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the
same or in substitution therefor.
15 Such day shall be appointed by the Governor in Council.
such manner as the Legislature prescribes.
65
presented to the Governor for the reservation thereof for the signification
of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal
or amendment of this section.
25 ATTACHMENT 3 (continued)
66
ATTACHMENT 4
section 69
30 CONSTITUTION ACT 1867, SECTIONS 30 AND 40
The Constitution Act 1867—
30 Legislature empowered to make laws regulating sale and other
disposal of waste lands
Subject to the provisions contained in the Imperial Act of the 18th and
35 19th Victoria chapter 54 and of an Act of the 18th and 19th years of Her
Majesty entitled An Act to repeal the Acts of Parliament now in force
respecting the Disposal of the Waste Lands of the Crown in Her Majesty’s
Australian Colonies and to make other provisions in lieu thereof which
concern the maintenance of existing contracts it shall be lawful for the
40 legislature of this State to make laws for regulating the sale letting disposal
and occupation of the waste lands of the Crown within the said State.
.........
40 The entire management of Crown lands and all revenues thence
arising to be vested in the local legislature
45 The entire management and control of the waste lands belonging to the
Crown in the said State and also the appropriation of the gross proceeds of
the sales of such lands and all other proceeds and revenues of the same
from whatever source arising within the said State including all royalties
mines and minerals shall be vested in the legislature of the said State.
50 © State of Queensland 2001
p 290 9-3-2009
p291
END QUOTE Queensland Constitution Act 2001

.
While there are parts that are referring to a referendum, reality is that any sovereign parliament
can simply amend this part because a SOVEREIGN PARLIAMENT cannot be limited to do
5 so. The real nonsense of the Queensland (purported) Constitution Act 2001 is that it portrays the
Queensland Parliament to be both a SOVEREIGN PARLIAMENT as well as a
CONSTITUTIONAL PARLIAMENT.
.
QUOTE Mr. CLARK.-
citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
15 END QUOTE
.
And here is that the Commonwealth of Australia should have stepped in way back when in 1921
the Queensland Government purportedly abolished it upped chamber in that it was and remained
to be unconstitutional and sought to rob Queenslanders of their constitutional rights.
20 .
IN RE WOOD (1988) 167 CLR 145 F.C. 88/018
QUOTE
A poll was required and it was duly taken
on 11 July 1987. On 25 August 1987, the Australian Electoral Officer for New
25 South Wales returned the writ certifying the names of the 12 senators elected
in order of their election. William Robert Wood was returned as elected in
the 12th place. On 27 August 1987, in accordance with s.7 of the
Constitution, the Governor certified to the Governor-General the names of the
chosen senators. Subsequently Senator Wood has sat as a senator.
30
2. On 28 January 1988 the Deputy Secretary of the Department of Immigration,
Local Government and Ethnic Affairs wrote a letter to the President of the
Senate stating that Senator Wood had applied for the grant of Australian
citizenship, he being a British citizen who had not received Australian
35 citizenship. On 3 February 1988 Senator Wood made an affirmation of
allegiance and was granted Australian citizenship. At all material times
prior to 3 February 1988 Senator Wood was a British citizen and was not an
Australian citizen. The category of citizenship applicable to Senator Wood
pursuant to the British Nationality Act 1981 (U.K.) does not appear and is
40 immaterial. Nor does it appear whether, on 3 February 1988 or subsequently,
Senator Wood renounced British citizenship in accordance with the provision
for renunciation contained in s.12 of the British Nationality Act.
END QUOTE
And
45 QUOTE
14. As Senator Wood was not an Australian citizen prior to 3 February 1988,
he was not entitled to be nominated for election as a senator: s.163 of the
Act. His election and return could not create the legal capacity to be a
senator which s.163 denies. Section 16 of the Constitution makes the
50 qualifications prescribed by s.163 of the Act the qualifications "of a
p 291 9-3-2009
p292
senator" and a constitutional requirement that senators possess those

qualifications is thus created. The constitutional requirement is not
satisfied by a de facto election and return of a candidate who does not
possess the prescribed qualifications. A de facto election and return are
5 therefore ineffective to confer the legal status of senator on an unqualified
person though of necessity the return must be treated as having some effect.
In Vardon v. O'Loghlin (1907) 5 CLR 201 (at p 208) Griffith C.J., speaking for
the Court, said that when the election of a person returned as a senator is
invalid -
10
"the return is regarded ex necessitate as valid
for some purposes unless and until it is
successfully impeached. Thus the proceedings of
the Senate as a House of Parliament are not
15 invalidated by the presence of a senator without
title. But the application of this rule is
co-extensive with the reason for it. It has no
application as between the sitting senator and
any other claimant for the place which he has
20 taken, or as between him and the electors, by
whom he was not in fact chosen."
Or, it might be added, "by whom he could not lawfully have been chosen".
END QUOTE.
25 And
QUOTE
Thus an election might have been held to be voidable where the
disqualification arose only on a judicial finding that the candidate has
engaged in disqualifying conduct; for example, bribery of electors: see
30 Drinkwater v. Deakin (1874) LR 9 CP 626. In that case Brett J. (as he then
was) said (at p 644):
"There is a manifest distinction between an

offence avoiding an election and an incapacity.
35 If a man is incapacitated, though at the election
in question neither he nor any elector is guilty
of a fault, the election is void."
The same distinction underlay the decision of Mitchell J. in Crafter v. South

40 Australia (1981) 28 SASR 86 where her Honour construed the statute as
conferring jurisdiction on the Court of Disputed Returns to invalidate an
election only as from the date of its declaration of invalidity. But a person
who lacks the qualifications required by s.16 of the Constitution and
prescribed by s.163 of the Act cannot be a senator and is therefore incapable
45 of being chosen as a senator. That incapacity does not flow from the making
of a judicial declaration that he lacks the requisite qualifications.
16. Another category of election which was not wholly void was the election
of a person who, though incapacitated at the time of the election, acquired
50 capacity thereafter pursuant to a statute which provided for retrospective
p 292 9-3-2009
p293
capacitation of a candidate after election. Such an election was perforce

treated as valid provided the office had not been lawfully filled in the
meantime: R. v. Hawkins (1808) 10 East 211 (103 ER 755); R. v. Parry (1811) 14
East 549 (104 ER 712), cases which were decided on the Test Act. But there is
5 no provision for retrospectively validating an election or return of a
candidate who lacked the qualifications required by s.16 of the Constitution
and prescribed by s.163 of the Act. The election and return of such an
unqualified candidate is wholly ineffective to fill a vacant Senate place.
Senator Wood's election was void. The return was defective. What is the
10 consequence? The answer is furnished by Vardon v. O'Loghlin.
17. Vardon v. O'Loghlin was the next judicial chapter in the story of Mr
Vardon's attempt to take his seat in the Senate. The Court of Disputed Returns
(by then vested with jurisdiction under the 1907 Act with which Div.2 broadly
15 corresponds) held that the invalidity which affected Mr Vardon's return
amounted to a failure by the electors to choose a senator for the place which
Mr Vardon had been returned to fill. The Court said (at pp 208-209):
"The election is either valid or invalid. If

20 invalid, the reason of the invalidity is not
material so far as regards its consequences. We
think it follows that, upon the avoidance of the
election itself by the Court of Disputed Returns,
the case is to be treated for all purposes, so
25 far as regards the mode of filling the vacancy,
as if the first election had never been
completed, unless there is something in the
Constitution to lead to a contrary conclusion."
30 18. A Senate election is not completed when an unqualified candidate is

returned as elected. The return does not meet the exigency of the writ
(Drinkwater v. Deakin, at p 638) because Senator Wood was incapable of filling
the 12th place. That is not to say that, putting to one side "a mere abuse of
the right of nomination or an obvious unreality" (Harford v. Linskey (1899) 1
35 QB 852, at p 862 and cf. Pritchard v. Mayor, &c. of Bangor (1888) 13 App Cas
241), the Electoral Officer who makes a return has authority himself to
determine the qualifications of a candidate (who declares and maintains that
he is duly qualified: s.170(a)(ii) of the Act) or to refuse to return the name
of an otherwise successful candidate whose qualifications are in issue: see
40 s.172 of the Act and Evans v. Thomas (1962) 2 QB 350. But the performance by
the Electoral Officer of his ministerial functions in these respects does not
determine the validity of the return or the efficacy of the election of an
unqualified person to a vacant place in the Senate.
END QUOTE
45 .

QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that
we are all alike subjects of the British Crown.
p 293 9-3-2009
p294
END QUOTE
.
QUOTE
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
5 Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and learned
member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is
asked to do is to hand over to the Federal Parliament the power, whether exercised or not,
of taking away from us that citizenship in the Commonwealth which we acquire by joining
10 the Union. I am not going to put that in the power of any one, and if it is put in the power of
the Federal Parliament, then I should feel that it was a very serious blot on the Constitution,
and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a
question of whether any one of British blood who is entitled to become a citizen of the
Commonwealth is to run the risk-it may be a small risk-of having that taken away or
15 diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
not prepared to trust the Federal Parliament or anybody to take away that which is a leading
inducement for joining the Union.
END QUOTE
20 .
Below it has been extensively set out that constitutionally Senator Wood as a subject of the
British Crown was constitutionally eligible to be a Federal Member of Parliament, as was
Senator Heather Hill. Besides this however what is clear is that the High Court of Australia
makes known that the certification by the governor to the governor-General and the declaration
25 by the Electoral Commissioner does not make something legal if in the first place it never was
legal. This is a rule of law that is well known that if a law is not in the first place lawful then the
giving of royal assent cannot make it being legal. Indeed HCA 27 of 1999 Wakim proves this in
regard of the purported Cross Vesting Act. Likewise where a original Court order is without
jurisdiction then no subsequent court order no matter how much it enforces the original court
30 order is valid because if the original order was without jurisdiction then any subsequent order
likewise will fall by this.
.
QUOTE Queensland Electoral Commission
REFERENDUMS
35 A referendum is held when a government seeks a direct Yes or No
answer from the people about an issue. A Queensland referendum is
passed when a majority of the people statewide vote in favour of a
proposal.
Since separation in 1859, Queenslanders have voted at seven State

40 referendums and have passed only two, the Federation (1899) and
Religious Instruction (1910) referendums.
Federation, 1899
Religious Instruction, 1910
Abolition of the Legislative Council, 1917
45 Control or Prohibition of Liquor, 1920

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p295
Control or Prohibition of Liquor, 1923
Extension of Parliamentary terms from three to four years 1991
Daylight savings referendum 1992.
For more information on the legislation governing referendums, go to

5 the Queensland Government’s website to view a copy of the legislation.
For information on the role of Returning Officers, see our information
section on ROs.
END QUOTE Queensland Electoral Commission
.
10 QUOTE Queensland Electoral Commission
Women were granted the right to vote in Queensland in 1905.
END QUOTE Queensland Electoral Commission
.
QUOTE Constitutional Requirements for Queensland to become Bicameral
15 In 2001 Queensland collapsed its old westminster style of multiple acts and bills into a
single constitutional document . The Queensland government did not take the opportunity
to innovate and instead followed NSW's and Victoria's example by making a standard
Australian style constitutional westminster system. Queensland did so as a unicameral
parliamentary system as the Legislative Council had been shed in 1922. So what
20 constitutional requirements does Queensland have to follow to get it back?
The Labor Party has had a history of wanting to abolish the Legislative Councils. The only
one that they were successful in abolishing was Queensland's upper house. Labor held a
referendum in 1917 to abolish the upper house which failed.
In 1921 when the Governor was absent, the Premier appointed a former Labor
25 parliamentarian to Lieutenant-Governor who promptly appointed fourteen Labor
Legislative Councillors - the upper house being appointed, not elected.
Legislation was then passed to the Legislative Council to abolish it. The legislation was
supported by Country Party councillors who sought to turn the upper house into an elected
body. Queensland has been unicameral ever since.
30 Just to make sure a Queensland Legislative Council didn't come back in a hurry the Labor
Party passed legislation in 1934 which required a referendum. This act was absorbed into
the Queensland Constitution of 2001 [pdf] :
Parliament not to be altered in the direction of re-establishing the Legislative Council or
other body except in accordance with this section
35 (1) The Parliament of Queensland (or, as sometimes called, the Legislature of Queensland),
constituted by His Majesty the King and the Legislative Assembly of Queensland in
Parliament assembled shall not be altered in the direction of providing for the restoration
and/or constitution and/or establishment of another legislative body (whether called the
"Legislative Council," or by any other name or designation, in addition to the Legislative
40 Assembly) except in the manner provided in this section.
(2) A Bill for any purpose within subsection one of this section shall not be presented to the
Governor for the reservation thereof for the signification of His Majesty's pleasure, or for
the Governor's Assent, or be in any other way assented to, until the Bill has been approved
by the electors in accordance with this section.
45 (3) On a day not sooner than two months after the passage of the Bill through the
Legislative Assembly, the question for the approval or otherwise of the Bill shall be
p 295 9-3-2009
p296
submitted to the electors qualified to vote for the election of members of the Legislative
Assembly according to the provisions of "The Elections Acts, 1915 to 1932," or any Act
amending the same or in substitution therefor. Such day shall be appointed by the Governor
in Council.
5 (4) When the Bill is submitted to the electors the vote shall be taken in such manner as the
Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the
Governor for the reservation thereof for the signification of His Majesty's pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal or amendment of
10 this section.
It should be noted, like the NSW Constitution, the Queensland Constitution is a statutory
one with only certain sections being entrenched and requiring referendums to be modified.
The re-establishment of a Legislative Council is one of those cases.
Presumably Attachment 3 of the constitution can be removed by a statutory act or
15 amendment, but I suspect the present unicameral executive (and past ones) don't mind the
appearance of a unicameral system being constitutionally entrenched.
END QUOTE Constitutional Requirements for Queensland to become Bicameral
.
It therefore doesn’t matter if in 1921 the Queensland Government appointed a Lieutenant-
20 Governor as to have the upper house abolished because the giving of royal assent itself cannot
circumvent what constitutionally could not be achieved without a State Referendum.
.
QUOTE Mr. ISAACS.-
25 Constitution,
END QUOTE
.
It was clearly implied in the Commonwealth of Australia Constitution Act 1900 (UK);
.
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
35 those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making
a Constitution of this kind, enable any Government or any Parliament to twist or
infringe its provisions, then by slow degrees you may have that Constitution-if not
40 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,
45 states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
.
QUOTE
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Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but
5 constituent bodies. They have not only the power of legislation, but the power of
body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
10 bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
15 QUOTE
.
QUOTE
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to
20 refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,
indisputably, the great bulk of them, are subjects on which no question of state rights and
state interests could arise except by the merest accident. It is, as the right hon. gentleman
admitted, a grave defect in our constitution if we permit these questions to be left for all
time to be determined in a purely states house, or by a state referendum, when those
25 questions are not state questions-when they ought to be decided, not on state lines, but on
national lines, and by a national referendum.
END QUOTE
.
30 QUOTE
Mr. BARTON: I do not think it is a good thing under any circumstances that a
judge under a Federal Constitution, at any rate, should have anything to hope for
from Parliament or Government.
Mr. KINGSTON: Hear, hear.
35 Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
interpreter of the laws as they arise, and not the guardian of a Constitution in the
same sense as a federal judge is, the same circumstances remain in part; but where you
will have a tribunal constantly charged with the maintenance of the Constitution against the
inroads which may be attempted to be made upon it by Parliament, then it is essential that
40 no judge shall have any temptation to act upon an unexpected weakness-for we do not
know exactly what they are when appointed-which may result, whether consciously or
not, in biasing his decisions in favor of movements made by the Parliament which
might be dangerous to the Constitution itself.
END QUOTE
45 .
QUOTE
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p298
question-and the Constitution gives it no power to legislate in regard to that question-the
5 for our schools," and thus they might wink at a violation of the Constitution, while no
provisions for the amendment of the Constitution? Why should we not say that the
10 people at all? Why not leave this matter to the Ministers of the day? But the proposal
END QUOTE
As such, nothing comes from it that the Lieutenant-Governor gave royal assent to the bill to
15 enact it as constitutionally it was ULTRA VIRES. As such, constitutionally Queensland must
have 2 Houses of parliament and not a single piece of legislation enacted since 1922 (When
purportedly the upper house was abolished) can be deemed valid as “technically” without the
passing of any bills since then by the upper house means any royal assent or purported royal
assent was without NULL AND VOID and so legal force.
20 .
In Burns v. State of Queensland [2004] QSC 434 (19 November 2004) the Court relied upon the
validity of the Integrated Planning Regulation 1998, Legislative Standards Act, Property Law
Act and the Vegetation Management Act 1999), however in view of the above stated such
legislation cannot be constitutionally valid.
25 .
Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court relied upon, local law
23(5) of the Vegetation Protection local laws, ss 23 and 35 of the Vegetation Protection
ordinance, Land Act 1962, and the Vegetation Protection Act 1999, as well as the Brisbane Town
Planning ordinance, City of Brisbane Act 1924, Local Government Act 1993
30 .
Neither Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court or v. State of
Queensland [2004] QSC 434 (19 November 2004) where appropriately considered upon the
unique constitutional set up in the Commonwealth of Australia different then any other legal
jurisdiction!
35 .
QUOTE Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court
the decision of the High Court in Lynch & Standon v Brisbane City Council [1961] HCA
19; (1961) 104 CLR 353, 364 (Dixon J), is authority for saying that the provisions of s 36
of the Act give:
40 “a power to lay down rules in respect of matters of municipal concern, matters that
have been reasonably understood to be within the province of municipal government
because they affect the welfare and good government of the city and its inhabitants.
They are not to be read without caution nor read as if they were designed to confide to
the city more than matters of local government. They express no exact limit of power
45 but, directed as they are to the welfare and good government of the city and its
inhabitants, they are not to be read as going beyond the accepted notions of local
government”.
END QUOTE Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court
And
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On behalf of the applicant, Mr Greenwood QC acknowledged that, in speaking of State
law, s 31 was intending to refer to legislation passed by or under the authority of State
Parliament. It is well settled that inconsistency between a local law and the general law or
5 common law of Queensland does not result in invalidity of the local law. See Widgee Shire
Council v Bonney [1907] HCA 11; (1907) 4 CLR 977, 982, where Griffith CJ said that the
suggestion that a by-law may not add to the law was untenable, “for in that view the power
to make by-laws would be absolutely nugatory”. In the same case (at 986-987), Isaacs J,
quoting from a judgment in an earlier English decision, said that a by-law “must necessarily
10 superadd something to the common law, otherwise it would be idle”. To deny a local
government authority to alter or add to the general or common law would completely
stultify the legislative power conferred on it.
[16] Mr Greenwood submitted that s 31 comprehended not only inconsistency in the sense
of direct conflict between two laws, but also a case where the local law has attempted to
15 enter a legislative field already covered by State law. Such an interpretation would
correspond to the way in which s 109 of the Constitution has been interpreted and also to
the position as established at common law. In Cullis v Ahern [1914] HCA 59; (1914) 18
CLR 540, the High Court held that a Melbourne city by-law requiring lighting of motor
cycles after dark was not inconsistent with a Victorian statute that imposed a similar, but
20 verbally not quite identical, duty on motorists throughout the State. Griffith CJ, with the
concurrence of Isaacs and Powers JJ, said (at 543) with reference to the State statute in
question:
“That law applies to the whole of Victoria. It prescribes what I may call an irreducible
minimum of obligation as to lighting of any person who drives a motor cycle within the
25 State. But it does not follow that some other precaution may not be necessary in some parts
of the State. In order to establish inconsistency between the by-law and the Statute the latter
must be construed as covering the whole ground in respect of which the legislation has
legislated, that is, as prescribing completely and exclusively the limits within which the
liberty of drivers shall be confined. If it had been said expressly or by necessary implication
30 that the only obligations that would be imposed upon drivers of motor cycles should be
those mentioned in the Statute any attempt by a municipality to add to them would be
inconsistent.”
And
35 QUOTE Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court
[17] The first matter urged by the applicant is that there is inconsistency between chapter
22 and s 6(1) of the Land Act 1962, which was the relevant statute or State law of that
character in force at the time when chapter 22 took effect on 30 November 1991. Section
6(1) provided:
40 “6. Grants and leases (1910 s.6). (1) Subject to this Act, the Governor in Council may, in
the name of Her Majesty, grant in fee simple, or demise for a term of years or in perpetuity,
or deal otherwise with any Crown land in Queensland.”
In a memorable observation, Pollock and Maitland once remarked that English law
conceived of land ownership as being “projected on the plane of time”. Vegetation does not
45 grow on the plane of time. But to grant a fee simple estate in land is to confer the largest
interest in land that is known to the common law, and one which is said to invest in the
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p300
grantee “the lawful right to exercise over, upon, and in respect to the land every act of
ownership which can enter into the imagination including the right to commit unlimited
waste”: Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, 42 (Isaacs
J), recently applied in Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195
5 CLR 96, 126. Accordingly, the argument proceeds, for chapter 22 to deny a fee simple
owner in Brisbane the right, liberty or power to clear vegetation from his land is
inconsistent with the proprietary rights that, under s 6(1) of the Land Act, are intended to be
conveyed by the Crown to a grantee of a fee simple estate in Queensland, and so is invalid
by force of s 31 of the Local Government Act.
10 [18] It is, however, a mistake to suppose that s 6(1) of the Land Act 1962 is directed to
defining the extent of the rights conferred on a grantee of land from the Crown. The section
is one of several successive re-enactments of earlier statutory provisions, of which in
Queensland the first was the Crown Lands Alienation Act 1860; 22 Vic No 1 (1 Pring’s
Statutes 833). Section 2 of that Act, and comparable provisions of other statutes that
15 applied here before Separation in 1859, represented the culmination of a political struggle
with the imperial government over local control of the waste lands of the Crown and the
revenue arising from their sale. As sovereign of Australia, the King exercised through the
colonial governor as his local representative a prerogative power at common law of
granting out parcels of the unalienated land of the Crown that in English legal theory was
20 vested in him in that capacity. The immediate effect of the legislation in question was to
supersede the Crown’s prerogative by a statutory power to make grants of land, and so to
bring its alienation or disposal under the authority of the colonial legislature. The subject is
discussed in the reasons for judgment of Windeyer J in Randwick Municipal Council v
Rutledge [1959] HCA 63; (1959) 102 CLR 54, 71, of Brennan J in the Tasmanian Dam
25 Case [1983] HCA 21; (1983) 158 CLR 1, 209-212, and in many historical accounts of the
evolution of representative and responsible government in Australia. The royal prerogative
is, it is well settled, displaced by legislation that covers the same subject matter: Attorney-
General v De Keyser’s Royal Hotel [1920] UKHL 1; [1920] AC 508, 560. The primary
function of s 6(1) and other such legislation is facultative. Its object and effect are to confer
30 on the Crown legislative, as distinct from prerogative, authority to grant waste lands, and so
to transfer the power of doing so from the uncontrolled discretion of the Crown to the
Governor in Council acting under the direction of the legislature, while at the same time
limiting the range of interests that can be granted in such land to those designated in the
section. Crown land may be granted, demised or dealt with only “subject to this Act”.
35 [19] In addition to historical considerations like these, a mere reference in a statute to an

interest in land that is recognised at common law, such as an estate in fee simple, does not
have the effect of transforming that interest, or the rights incidental to it, into statutory
interests and rights. If it were so, s 24 of the Australian Courts Act 1828 (Imp) in
introducing English law into eastern Australia would have had the effect of converting the
40 whole of the common law received here in 1828 into a body of statute law, which,
moreover, would have had the status and force under s 24 of an imperial enactment, with
all the consequences which that entailed. Quite plainly, that is not what happened. The
common law received in Australia under that Act was received as a body of common law
and not of enacted law. A suggestion to the contrary in the Hong Kong case of Mitchell v
45 Lemm (1908) 3 HKLR 75, 78, has been rightly condemned by Mr Wesley-Smith as
“merely eccentric” (P Wesley-Smith, The Sources of Hong Kong Law, at 131, n2). The
whole notion is, in any event, opposed to the established view that local laws or by-laws are
capable of altering the received English law, as was recognised in Widgee Shire Council v
Bonney [1907] HCA 11; (1907) 4 CLR 977, 982, 986-987, in the passages referred to
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above. Otherwise, as it was said in that case, the power to make municipal by-laws would
be nugatory. The provisions of chapter 22 prohibiting an owner in fee simple of land from
clearing vegetation from his land are no more inconsistent with s 6(1) of the Land Act 1962,
or with s 14(1) of the current Land Act 1994, than are the provisions of the Brisbane City
5 Council ordinances prohibiting, for example, the growing of stinking roger (tagetes
minuta), the keeping of roosters or reptiles, or the lighting of incinerators on residential
land, to name only a few of the many other intrusions effected by local laws upon rights of
fee simple owners within the city.
[20] Two of the other State statutes with which chapter 22 is said to be inconsistent may be
10 briefly disposed of. Part 6 of the Land Act 1994 (ss 252-274) deals comprehensively with
tree clearing, permits for such clearing, and rehabilitation of denuded land. However, the
provisions of that Part apply only to unallocated State land (or what used to be called
unalienated Crown land): see 252; and not therefore to freehold land like that in question
here. It is true that the Vegetation Management Act 1999 extends a similar regime to
15 freehold land: s 7(1); but s 7(2) provides that that Act does not prevent a local law from
imposing requirements on the clearing of vegetation in its local government area. Section
7(3) and s 7(4) explicitly declare that those requirements are unaffected by s 31 of the
Local Government Act 1994 (inconsistency), which is itself there expressed to be subject to
s 7(3) of the Vegetation Management Act 1999. It follows that neither of these State Acts
20 can, to use the language of Griffith CJ in Cullis v Ahern, be described as “prescribing
completely and exclusively” the limits within which the liberty of land owners with respect
to vegetation is to be confined in Queensland. In the context in which chapter 22 falls to be
considered here, there is no identifiable inconsistency between its provisions and either of
those State statutes. In its application to Mr Bone’s land, chapter 22 does not raise any issue
25 of inconsistency with either of the State statutes referred to.
[21] The other statute with which chapter 22 is said to be inconsistent is the Integrated
Planning Act 1997. The purposes of that Act as defined in s 1.2.1 are to co-ordinate
planning, to manage the process by which development occurs, and to manage the effects
of development on the environment. The word “development” is defined in s 1.3.2 so as to
30 include building work, plumbing and drainage work, and making a material change of the
use of premises. Obviously it would not be possible to carry out building work on land that
was completely covered by a vegetation protection order of the kind and extent imposed on
Mr Bone’s land in the present case. However, if the owner of land subject to such an order
proposed to “develop” the land in one of the senses defined, he would need to apply under
35 the Integrated Planning Act to the Council for the appropriate approval to his proposal.
Among the objections to granting it, the existence of the vegetation protection order might
well be one. One would therefore expect that, contemporaneously with his application
under that Act, he would also make application to the Council under chapter 22 for a
relaxation, in whole or in part, of the vegetation protection order.
40 END QUOTE Bone v Mothershaw [2002] QCA 120 (12 April 2002) Supreme Court
And
[22] Section 23(1) of chapter 22 prohibits destruction of vegetation to which a protection
order relates only if it is carried out “without the approval of the Council”. Section 25 and
45 26 prescribe procedures by which such approval may be obtained. Such an application may
in the end be unsuccessful. The Council may be entitled to refuse its approval for reasons
associated wholly or partly with the destruction of the protected vegetation; but in principle
that is no different from the case where development approval is refused because, for
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example, it may present dangers to traffic if access is sought to a main road from a
particular place in the planned new development. The Integrated Planning Act does not
invest an applicant under its provisions with an absolute right to obtain approval for any
application he may care to make for development approval. As the assessment manager
5 under s 3.5.11, the Council has a statutory discretion to grant or withhold in the light of all
the circumstances, although it must do so in accordance with applicable principles and rules
of law.
And
[24] The question is whether our legal system permits such prohibitory action to be taken.
The applicant contends that what the Council ordinance and the protection order made
under it achieves is expropriatory in character and effect, and consequently invalid.
Reference was made in submissions on behalf of Mr Bone to C J Burland Pty Ltd v
15 Metropolitan Meat Industry Board (1968) 120 CLR 409, where the High Court struck
down certain regulations made by the Board that vested in it, and without compensation,
the property in parts of animals submitted by their owners for slaughter at the Board’s
abattoirs. The Court held that regulations providing for such a taking of property were
presumptively beyond the power intended to be conferred by State legislation authorising
20 the making of delegated legislation by the Board.
[25] The present case is different. The Council has not taken any interest of Mr Bone’s, so
as to attract the operation of the Acquisition of Land Act 1967 or otherwise. He retains
unimpaired, for what it is worth, his estate in fee simple absolute in the land. He has been
stripped of virtually all the powers which make ownership of land of any practical utility or
25 value. There is, as is attested by an affidavit from the valuer provided at the hearing, no
doubt that the value of the land has been greatly reduced. But the law provides no remedy
for this action or its consequences when it is the result of legislation validly passed under
law-making authority that by its terms or nature authorises or permits such an outcome.
Such was the conclusion of the Privy Council in Jerusalem Jaffa District Governor v
30 Suleiman Murra [1926] AC 321, where, despite an express provision in the terms of the
Mandate for Palestine safeguarding the civil rights of all inhabitants, an ordinance
promulgated under the power conferred by the Foreign Jurisdiction Act 1890 (Imp) to
legislate for peace, order and good government was upheld despite its failure to provide full
compensation for the compulsory taking of springs of water. Viscount Cave LC said (at
35 328) that the article in the mandate did not mean:
“... that in every case of expropriation for public purposes full compensation shall be paid.
Their Lordships agree that in such a case, and, in the absence of exceptional circumstances,
justice requires that fair provision shall be made for compensation. But this depends not on
any civil right but ... upon principles of sound legislation; and it cannot be the duty of the
40 Court to examine (at the instance of any litigant) the legislative and administrative acts of
the Administration, and to consider in every case whether they are in accordance with the
view held by the Court as to requirements of natural justice.”
[26] The same opinion is explicit in the reasoning of the High Court in Durham Holdings
Pty Ltd v State of New South Wales [2001] HCA 7; (2001) 75 ALJR 501, holding that a
45 State Parliament has the legislative power to deprive a person of property without just
compensation. To the objection that chapter 22 is not State legislation there are at least two
answers. The first is that it was enacted under the very wide powers conferred by State
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legislation in the form of s 36 of the City of Brisbane Act 1924, which may be thought to
have received a measure of implicit or indirect Parliamentary confirmation in ss 7(3) and
7(4) of the Vegetation Management Act 1999. The second is that it in no sense involves
acquisition of Mr Bone’s property in the land. Both in purpose and effect, chapter 22
5 resembles the legislation in the Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1,
from which it may have taken some of its inspiration, in prohibiting damage to and use of
the subject land, without amounting to an “acquisition”, by the Commonwealth or anyone
else, within the terms of s 51(xxxi) of the Constitution [1983] HCA 21; 158 CLR 1; 145-
146 (Mason J); 181-182 (Murphy J); 247-248 (Brennan J); 281-285 (Deane J). Legislation
10 enacted by or under Parliamentary authority may, without providing compensation, prohibit
and deprive or expropriate without involving acquisition; and, in the last resort, chapter 22
is placed beyond reach of challenge on the grounds of excess of power by s 38(4) of the
City of Brisbane Act 1924. See Lynch & Standon v Brisbane City Council [1961] HCA 19;
(1961) 104 CLR 353, 365.
15 [27] This conclusion was questioned by the applicant on the authority of Thomas J in
Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd
R 291, 306. The effect of his Honour’s decision there was to invalidate a local by-law of
the Logan City Council on the ground that it was in substance an amendment to the
Council’s town planning ordinance and one which had not been passed in compliance with
20 the statutory procedures imposed by the Local Government Act. The present case is not one
in which any such question arises.
.
And
[31] Again to quote from Sir Owen Dixon (King Gee Clothing Co Pty Ltd v The
Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194):
“The common law, from the time the control of the King’s Courts over franchise and local
or special jurisdictions was established, has allowed to corporations, boroughs and vestries
30 a power to make only reasonable by-laws for the government of the members or inhabitants
or parishioners.”
[32] However, as he went on to point out, since Williams v Melbourne Corporation [1933]
HCA 56; (1933) 49 CLR 142 unreasonableness of a by-law has not been regarded in
Australia as a separate and distinct ground of invalidity. As he there pointed out at 155 in
35 such a case the by-law will only “be invalid . . . because it is not a real exercise of the
power.”
And
40 [35] One of the major concerns of the appellant is that the value of his property has been
significantly diminished by the impact of the vegetation protection order; effectively he
cannot lawfully use his property in the way in which he could immediately prior to that
order being made. Fair minded citizens would regard it as only just that a person in that
position should be compensated for the loss suffered. But as is implicit in the reasoning of
45 the High Court in Durham Holdings Pty Ltd v State of New South Wales [2001] HCA 7;
(2001) 75 ALJR 501 there is no common law right to compensation in Australia where a
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person is deprived of property rights by a State Law; it must follow that there is no such
right where the loss is occasioned by a local authority by-law.
.
5 Again;
QUOTE
As the assessment manager under s 3.5.11, the Council has a statutory discretion to grant or
withhold in the light of all the circumstances, although it must do so in accordance with
applicable principles and rules of law.
10 END QUOTE
.
In this case, Mr Francis James Colosimo clearly made known that Moorabool Shire Council
failed to respond to his correspondences. As such, it neglected to appropriately conduct matters.
More over none of the cases seemed to deal with the issue of validity of legislation on
15 constitutional grounds as it was rather referred to being State legislation and the Council being
entitled to make by-laws but clearly if the “grantor” (the State parliament” has no such powers
then the person being granted delegated powers cannot exercise greater powers then the grantor.
Moreover, if the purported legislation never was passed in the upper house then any royal assent
otherwise was NULL AND VOID.
20 .
IF CONSTITUTIONS CAN BE VIOLATED BY ANY “CONSTITUTIONAL
PARLIAMENT” AS IT DESIRES THEN NO CONSTITUTION WILL HAVE ANY
VALIDITY.
.
QUOTE Dr. COCKBURN:
No parliament under a federation can be a constituent body; it will cease to have the
QUOTE
30 .
The issue is that with a constitutional Parliament it cannot legislate to amend its own
Constitution and therefore without State referendum there never was any valid amendment to the
Constitution.
.
35 As the Framers of the Constitution made clear
.
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
40 provided for an Executive which is charged with the duty of maintaining the
people.
END QUOTE
.
45 Therefore, while the High Court of Australia and other Courts may seek to provide maximum
powers to legislators and so also to municipal councils in the end the courts cannot embark upon
what might have taken place in some other forsaken country where they do not have the same
Constitution applicable as there is with a constitutional Parliament for the States and the
Commonwealth and constitutional structure therefore is different.
50 .
p 304 9-3-2009
p305
Many legislative provisions that may be applicable in Canada or even New Zealand may not be
relevant to the Commonwealth of Australia because again there is a different constitutional
structure existing.
The Framers of the Constitution themselves (as set out in this document extensively) debated the
5 principles applicable in the USA and in European countries and that it may not be applicable
within the Commonwealth of Australia because it would have a different and unique
Constitution.
.
To adopt authorities from other countries without bothering to consider the possible difference in
10 constitutional set up is to ignore reality.
.
The issue is not and never should be as to try to find some decision that might suit to defeat a
case against the Crown but rather that any judicial person must first of all consider what is the
constitutional basis that applies and how are those foreign decisions compatible, if at all, with the
15 Commonwealth of Australia local conditions!
Also, many of the judgments that are on record since federation were in total ignorance to what
the intentions were of the Framers of the Constitution and as such now that the Hansard records
of the Constitution Convention Debates are deemed applicable then any past decision mu8st be
reconsidered to ensure that the intentions of the Framers of the Constitution is appropriately
20 applied. Not that the judges apply the intentions of the Framers of the constitution as it may aid
them in coming to a certain result in a judgment and otherwise seek to ignore the intentions of
the Framers of the Constitution!
.
25 QUOTE
and considered on the last day of the Sydney sitting..... The arguments which
30 mind. In my judgment that case was wrongly decided, and should be
overruled.”
END QUOTE
.
Never should any court of law apply authorities which on proper consideration upon material that
35 previously may never have been considered now indicates the Authority was wrong in its
decision.
.
The problem we have is that there appear to be a total disregard to the fact that Municipal
Council is not a constitutional body and as such cannot, even if acting as agent (organ of a State)
40 for the state, and as such cannot exercise any greater powers then provided to it.
.
Fancy the Municipal council to purportedly having legislative powers greater then a State and
making by-laws that conflict with Federal legislative powers!
.
45 As such, even if the Municipal Council was not regarded to be a separate level of Government
but an organ of the State acting for and on behalf of a State Government, its delegated powers
clearly could be no greater then that of the State (the grantor).
Therefore, any legislation that were to specifically deal with Aboriginals, not being a general
provisions, such as proposed by the State of Victoria as to Crown land, and that Aboriginals
p 305 9-3-2009
p306
would not need any permits, then this would be unconstitutional in that only the Commonwealth
can legislate as to Aboriginals and only for “every person” of the Aboriginal race and not just
some of them.
Therefore, any State land-rights legislation specifically legislated for in regard of Aboriginals in
5 that manner also would be ULTRA VIRES.
It would be absurd that a FEE SIMPLE holder could not exercise his rights as to his land while
an Aboriginal on Crown land can do whatever without the need of a permit.
The Aboriginal could burn off during a TOTAL FIRE BAN and cause the loss of the property of
the FEE SIMPLE holder.
10 In The Age January 15, 2009 page 3 article shows “Aborigines press on with bay bid in court”
This set out how some Aboriginals in recent years came from Tasmania and now against another
Aboriginal group are trying to get control. The State government somehow making known
willing to have Aboriginals to control all Crown land. What we therefore will have is that a De
Facto Government of Aboriginals will be in place dictating how others can use the Bay and other
15 Crown land. While we had that many farmers were locked out of the high country with their
cows, etc, Aboriginals can then enter the area without any need for a permit and do what is
deemed for farmers to be against the environment.
.
The Minister for Families, Housing, Community Services and Indigenous Affairs Jenny Macklin
20 MP, in her correspondence (meaning Kate Huntington, Advisor, for her dated 12 January 2009)
to Mr G. H. Schorel-Hlavka, for the Prime Minister, Mr Kevin Rudd stated;
.
QUOTE
The Minister considers that all Australians should have equal opportunities..
25 END QUOTE
.
And also
QUOTE
To achieve this, the australian Government has worked closely with State and Territory
30 Governments, who retain their very important responsibilities for Indigenous Affairs, to set
national targets..
END QUOTE
.
.
QUOTE
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.
40 END QUOTE
.
QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is
45 no doubt that it will be exercised.
QUOTE
.
What is going on here one may have to ask! The Federal government making it that the States
and Territories have their “very important responsibilities” as to Aboriginal affairs this even so
50 the commonwealth and the Commonwealth only in fact has this!
p 306 9-3-2009
p307
What is clear is that the Federal government fails to understand/comprehend what is

constitutionally appropriate.
The moment the Commonwealth exercised its new found constitutional powers, since 1967, to
legislate then it also had the sole responsibility for Aboriginals, other that where it comes to State
5 legislative powers the States can but only legislate as to its general powers which may or may not
include Aboriginals. As such, any State legislative power cannot be directed to any race.
Therefore, any legislation prohibiting racial abuse is legislation directed to a specific race and
cannot be a State legislative power.
.
10 There can be no overlapping of legislative powers as either it is the State or the Commonwealth
but not both who can legislate.
.
Hence, where these proceedings are dealing with the Planning and Environment Act of Victoria
yet somehow Aboriginals are to be excluded from having to obtain any permit then this clearly
15 undermines the ability to apply the very Act against anyone else as either it is against all or no
one but not Aboriginals being given special treatment and other races are still compelled to
comply.
.
With the Colosimo’s case with the shed it seems not relevant if it doesn’t cause any harm to the
20 “general community” as somehow the issue of having a shed without a permit, irrespective if
there is none needed, seems to be sufficient to wage a litigation war against the Colosimo’s but if
this land were, say, to return to crown land then Aboriginals could build any kind of structure
without any need of any permit. Then not even legislation otherwise enforced against FEE
SIMPLE property holders will be enforced either. In view that the State of Victoria, albeit
25 unconstitutional, has indicated that Aboriginals will be allowed to manage all Crown land and
will not require permits for any of their activities on Crown land and this includes any waters, as
such meaning that a non-Aboriginal needs a permit for fishing not just from the State
Government authorities but also rather ridiculously from Aboriginals, where as the Aboriginals
do themselves not have any requirement for permits. If for example fishing licenses are required
30 for protecting fish stock and the environment yet Aboriginals will not be require to do so then
clearly it is mere all a nonsense.
The same with collecting items from the beaches. Aboriginals can do as they like and non-
Aboriginals are prohibited to collect the same items. As such, what we have is politicians going
mad to try to please Aboriginals regardless that constitutionally no such legislative powers exist
35 as since 1967 those powers became exclusive legislative powers of the Commonwealth when it
commenced to legislate as to Aboriginals.
.
This is not a case where Mr Francis James Colosimo is claiming he has a right to injure his
neighbor. There is no issue here that Mr Francis James Colosimo claims the right to injure the
40 “general community” as simply no evidence as such can be shown to exist. What the case of
Moorabool Shire Council appears to be is that of claiming there is some legislative provision
they rely upon. Well, this is where the legalities are coming in and if Moorabool Shire Council
seeks to rely upon their legal technicalities then Mr Francis James Colosimo is entitled to do so
likewise and to assert in any way that a defendant doing so might then be somehow mentally
45 incapacitated would be a declaration that when ever any lawyer is contesting legalities in any
Court case then they too are mentally incapacitated (Well perhaps they can be without the need
to contest legal technicalities but that is another issue).
.
p 307 9-3-2009
p308
As set out extensively in this document, unless Moorabool Shire Council can overcome the
DIRECT and COLLATERAL ESTOPPEL that was created by the 19 July 2006 County Court
of Victoria decision there is and cannot be any case to answer.
Legal precedents are available not just against those who may seek to misuse/abuse their powers
5 and abuse the legal processes but also serve for Defendants.
.
In the circumstances it would be a sheer and utter nonsense to have ongoing litigation about the
Planning and Environment Act and other legislation where clearly it is more a tool for power
play then for common sense approach to deal with the environment.
10 And also, where not a single Victorian politician has constitutionally obtained “Australian
citizenship” (State and/or Federal) the basic requirement to be a Member of Parliament then as
set out below all and any purported legislation never was valid in the first place. As Mr G. H.
Schorel-Hlavka extensively canvassed this in the 5-year litigation battle against the Crown and
in the end the County Court of Victoria on 19 July 2006 upheld both cases of Mr G. H. Schorel-
15 Hlavka then clearly the DIRECT and COLLATERAL ESTOPPEL exist not just in relation to
Mr G. H. Schorel-Hlavka but in regard of any person within the Commonwealth of Australia
and so also within the State of Victoria.
.
Under the Commonwealth of Australia Constitution Act 1900 (UK) any kind of legislation that
20 is to deal with a inferior coloured race (as the Framers of the Constitution referred to) is clearly
UNCONSTITUTIONAL and so ULTRA VIRES.
.
It also is sheer and utter nonsense for any court to argue that somehow States can legislate as
they like as to invoke upon the rights of FEE SIMPLE holders because it is a PROROGATIVE
25 Right which the FEE SIMPLE holder has by the payment of the purchase of the land or
otherwise having obtained the land in FEE SIMPLE.
.
As such, no legislation of a State and/or a Municipal Council could be that any Municipal
Council has unrestricted access to a property because it would simply destroy the FEE SIMPLE
30 rights.
.
QUOTE Mr. CLARK.-
35 for the protection of certain fundamental rights and liberties which every individual
citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
40 HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
QUOTE Mr. ISAACS.-

45 Constitution,
END QUOTE
.
The State Government, so the State Parliament would not dare to legislate as to restricting for
example the governor-General on his residence because any purported legislation would be ultra
50 vires. No Parliament can interfere with the prerogative powers and privileges. However, if
p 308 9-3-2009
p309
conduct upon the property, even that by the Governor-General would cause not imaginary but
real harm, such as smoke that could cause harm to others then appropriate legislation could be
validly in place that such harm cannot be caused to others.
.
5 Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617
“But the definition of James LJ is not to be regarded as exhaustive. Lord M R pointed out in
Ex Parte Official Receiver, re Reed Bowen and Co. (1887) 19 QBD 174 at p178. The
words person aggrieved are of wide import and should not be subjected to a restrictive
interpretation. They do not include, of course, a mere busy body who is interfering in things
10 that do not concern him; but they do include a person who has a grievance because an order
was made which prejudicially affects his interests.”
.
As such it is not merely for the State Parliament and/or the Municipal council to be some “busy
body” as to try to use all kinds of regulations to prohibit a FEE SIMPLE land holder to have little
15 or no opportunity to freely use the FEE SIMPLE as it would simply be and remain UNTRA
VIRES whatever the legislation, by-law, etc may seek to do if it has no real interest to the general
public.
.
Because in the Tasmania Dam case the commonwealth rightly or wrongly held that it has
20 legislative powers as to “ENVIRONMENT” then on that basis the following applies;
.
QUOTE
25 commonwealth exercises the power, the states must retire from that field of
legislation.
END QUOTE
.
30 QUOTE
no doubt that it will be exercised.
QUOTE
.
35 As such, let the States sort it out with the Commonwealth who has legislative powers but rest
assured that not both can legislate as to the same subjects.
The Commonwealth is limited to “the whole of the Commonwealth” and as such it can only
legislate for what is applicable for the whole of the Commonwealth. Meaning that State or so
called by-laws for local area’s are not valid as they are breaching the Commonwealth exclusive
40 legislative powers.
It is to no issue for a FEE SIMPLE holder who has legislative powers as long as it is either the
State or the Commonwealth but not both. That is the constitutional set up. Where then the
Commonwealth in the Tasmania Dam case (albeit wrongly) claimed to have ENVIRONMENT
legislative powers in regard of a specific State matter then it effectively closes off any State and
45 so Municipal Council legislative powers being it by-laws or otherwise.
.
50 power is not and never has been a law at all. Anybody in the country is entitled to
p 309 9-3-2009
p310
invalid ab initio."
5 (See also re Residual Assco Group v Spalvins & Ors A5/2000 (11 May 2000) High Court of
.
Therefore, where the States and so Municipal Councils have no powers as to ENVIRONMENT,
because it became allegedly a exclusive power for the commonwealth then no FEE SIMPLE
10 holder can be bound by legislative provisions or other instruments being it by-laws, regulations,
etc, from any state and/or Municipal Council or other organ acting for the State as it will all be
ULTRA VIRES.
.
Fancy the State authorising a Municipal (Shire) Council to create a standing army to enforce
15 State laws.
.
Fancy a State to authorise a Municipal (Shire) Council to print its own monies.
.
As mu7ch as the States are bound by the Commonwealth of Australia Constitution Act 1900
20 (UK) so are the Municipal (Shire) Councils.
.
Therefore, regardless of the numerous ill conceived judgements being it of the High Court of
Australia and/or or any other court/tribunal ultimately what is relevant is what is embedded in the
Constitution, a unique kind of constitutional framework not existing anywhere else in the world
25 as such and therefore cannot be disregarded and any Authority of another legal jurisdiction that
might be totally ignoring the provisions as embedded in the Federal constitution to be applied
here.
.
Even decisions of the Privy Council prior to federation cannot be deemed applicable unless they
30 are reflecting the federal spirit! A judicial decision that might be made in the United Kingdom
may be plausible there but not applicable at all in the context of the federal constitution!
.
The removal of Crown land from the Crown to State Parliament also therefore was invalid as it
sought to pursue a change of the status of the Crown in right of the Crown of the State of
35 Queensland and its normal FEE SIMPLE ownership rights.
.
More over, Queensland Parliament had no legislative power over the British Monarch and cannot
remove the rights of the Crown by its own legislation but rather it was a kind of legalistic
rebellion by the Queensland Parliament to oust the Crown in whatever manner it deemed fit and
40 proper regardless how it was offending both the embedded principles of the Commonwealth
Constitution Act 1900 (UK) and/or the Queensland Constitution Act 1867 as amended and
applicable.
Where by way of the Constitution Amendment Act 1934 the Constitution Could not be amended
but by State referendum (that was in any event applicable even without this specific requirement
45 stated in the Constitution) then for all purposes and intend the King referred to the British Crown
and even the amendment of the wording to Queen, even if intended to refer to the Queen of the
British Crown would have required a constitutional amendment by State referendum.
.
In particular where the High Court of Australia went on about the Queen referred to in the
50 constitution not being specifically the British Crown it underlines that where it related to “King”
p 310 9-3-2009
p311
no mistake or deceptive meaning can be made but it related to the British Crown and as such any
amendment to “Queen” which somehow might imply any Queen the High Court of Australia
from time to time may nominate then clearly it would be an amendment and needed the approval
of State referendum.
5 .
QUOTE
- SECT 2
2 Interpretation--Constitution of Queensland
10 In this Act--
"Constitution of Queensland" means and includes the order in council of Her
late Majesty Queen Victoria dated 6 June 1859, referred to in the preamble to
the Constitution Act 1867 and the Constitution Act 1867, and each and every Act
15 of the provisions of the abovementioned order in council and Act, or either of
them.
END QUOTE
.
Again
20 QUOTE
and each and every Act
of the provisions of the abovementioned order in council and Act, or either of
them.
25 END QUOTE
.
In view that the Commonwealth of Australia Constitution Act 1900 (UK) implied a amendment
to the Queensland Constitution as it removed certain legislative powers from the Colony of
Queensland to the Commonwealth of Australia as to establish the federation and so by it
30 Queensland be provided with State hood, then it somehow is implied that the Commonwealth of
Australia Constitution Act 1900 (UK) is a Constitution of Queensland. As such its implied
principles must also be relevant to Queensland. Perhaps the same could be argued in regard of
the purported Australia Act 1986 albeit this act seeks to dispose of the British Crown and clearly
the Queensland Constitution Act 1867 did not allow for this.
35 As this provision relates to Her late Majesty Queen Victoria who never was known as Queen
of Australia then this too shows a conflict as to the legal position of Queensland and therefore
any amendment must be deemed to be under the British Crown to which the Queensland
parliament had no legislative powers to interfere with as to Crown possessions, other then to
“REGISTER” the sale or otherwise transfer of any FEE SIMPLE land/property.
40 .
QUOTE CONSTITUTION ACT 1867 Reprinted as in force on 20 June 2002
- SECT 40
40 The entire management of Crown lands and all revenues thence arising to be
45 vested in the local legislature
The entire management and control of the waste lands belonging to the Crown in
the said State and also the appropriation of the gross proceeds of the sales of
such lands and all other proceeds and revenues of the same from whatever source
50 arising within the said State including all royalties mines and minerals shall
p 311 9-3-2009
p312
be vested in the legislature of the said State.

END QUOTE CONSTITUTION ACT 1867 Reprinted as in force on 20 June 2002
.
5 QUOTE qld6_doc_1985
In the name and on behalf of the Queen, I assent to this Bill.
[James Ramsay]
Government House, [24 April 1985]
Brisbane,
10 Queensland
ANNO TRICESIMO QUARTO
ELIZABETHAE SECUNDAE REGINAE
No. [41] of 1985
A Bill to provide for the grant of leases in perpetuity and other title in land to
15 members of communities of Aborigines or Torres Strait Islanders and for related
purposes and to amend the Land Act (Aboriginal and Islander Land Grants)
Amendment Act 1982-1984 in certain particulars
2 Aborigines and Torres Strait Islanders (Land Holding)
Bill 1985, No. [41]
20 BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and
consent of the Legislative Assembly of Queensland in Parliament assembled, and by the
authority of the same, as follows:—
1. Short title. This Act may be cited as the Aborigines and Torres Strait Islanders
(Land Holding) Act 1985.
25 END QUOTE qld6_doc_1985
.
Again;
QUOTE
2 Aborigines and Torres Strait Islanders (Land Holding)
30 Bill 1985, No. [41]
END QUOTE
.
Now quite frankly, the 1967 federal referendum provided the commonwealth with legislative
powers as to Aboriginals and as such once it commenced to legislate it became EXCLUSIVE
35 legislative powers and regardless if the Crown provided royal assent it no longer was valid law.
After all the Cross Vesting Act also had royal assent and was later held to be unconstitutional.
.
As is below more extensive set out;
40 QUOTE
legislation.
END QUOTE
45 .
QUOTE
no doubt that it will be exercised.
50 QUOTE
p 312 9-3-2009
p313
.
It is not relevant if Queensland has internal rights to deal with Crown land as it desired, the issue
is that it was a law designed specifically in relation to Aboriginals, and not just the general public
and by this it was unconstitutional and so ULTRA VIRES.
5 .
QUOTE qld3ii_doc_1879
A Bill to provide that certain Islands in Torres Straits and lying between the
Continent of Australia and the Island of New Guinea shall become part of
the Colony of Queensland and subject to the Laws in force therein.
10 END QUOTE qld3ii_doc_1879
.
What is apparent is that despite the High Court of Australia MABO ruling the Islands referred to
clearly fell under Queensland law. As such at time of Federation were sealed into the
Commonwealth of Australia Constitution Act 1900 (UK) and therefore the High Court of
15 Australia had no jurisdiction to argue against this.
.
QUOTE qld3ii_doc_1879
[A.E. Kennedy]
Queensland
20 ANNO QUADRAGESIMO TERTIO
VICTORIAE REGINAE.
No. [1]
A Bill to provide that certain Islands in Torres Straits and lying between the
Continent of Australia and the Island of New Guinea shall become part of
25 the Colony of Queensland and subject to the Laws in force therein.
WHEREAS by letters patent under the great seal of the United Kingdom of Great
Britain and Ireland bearing date the tenth October in the forty-second year of the reign
of Her Majesty Queen Victoria Her said Majesty did authorise the Governor for the
time being of the Colony of Queensland by proclamation under his hand and the
30 public seal of the Colony declare that from and after a day to be therein mentioned
certain Islands which are described in the schedule hereto should be annexed to and
form part of the said Colony And in the said letters patent it was provided that the
said Governor is not to issue such proclamation as aforesaid until the Legislature of
the said Colony shall have passed a law providing that the said Islands shall on the
35 day aforesaid become part of the said Colony and subject to the laws in force therein
And in the said letters patent it was also provided that the application of the said laws
to the said Islands might be modified either by such proclamation as aforesaid or by
any law or laws to be from time to time passed by the Legislature of this Colony for
the government of the said Islands so annexed And
40 whereas
Preamble.
43_ VICTORIAE NO.
Queensland Coast Islands Bill
Governor to
45 issue
Proclamation.
whereas it is desirable that the said Islands shall be annexed to and form part of the
said Colony of Queensland Now be it enacted by the Queen’s Most Excellent
Majesty by and with the advice and consent of the Legislative Council and
50 Legislative Assembly of Queensland in Parliament assembled and by the authority
p 313 9-3-2009
p314
of the same as follows-

1. From and after such day as His Excellency the Governor of Queensland shall
by such proclamation under his hand and the public seal of the Colony as is
authorised by the said letters patent mention and appoint for that purpose the
5 Islands described in the schedule hereto shall be annexed to and become part of the
Colony of Queensland and shall be and become subject to the laws in force therein.
__________________________
SCHEDULE
Certain Islands in Torres Straits and lying between the Continent of Australia
10 and Island of New Guinea that is to say all Islands included within a line drawn
from Sandy Cape northward to the south-eastern limit of Great Barrier Reefs
thence following the line of the Great Barrier Reefs to their north-eastern extremity
near the latitude of nine and a half degrees south thence in a north-westerly
direction embracing East Anchor and Bramble Cays thence from Bramble Cays in a
15 line west by south (south seventy-nine degrees west) true embracing Warrior Reef
Saibai and Tuan Islands thence diverging in a north-westerly direction so as to
embrace the group known as the Talbot Islands thence to and embracing the
Deliverance Islands and onwards in a west by south direction (true) to the meridian
of one hundred and thirty-eight degrees of east longitude.
20 I hereby certify that this PUBLIC BILL has finally passed the Legislative
Council and Legislative Assembly of Queensland.
[H B Fitz]
Clerk of the Parliaments.
Legislative Council Chamber,
25 Brisbane, [23 June 1879]
In the name and on behalf of the Queen, I assent to this Act.
[A.E. Kennedy]
Government House, [June 24]
Brisbane, 187[9]
30 [Transmitted from the Legislative Council for Enrolment]
[According to law]
[Legislative Council Chamber]
[Brisbane 26 June 1879]
[H B Fitz]
35 [Clerk of the Parliament]
[Recorded and enrolled in the office of the Registrar General of Queensland
the thirtieth day of June A.D. One Thousand eight hundred and seventy
nine.]
[Registrar General’s Office]
40 [?]
[Dept Reg Gen]
[Brisbane 30 June 1879]
END TRANSCRIPTION
45 END QUOTE qld3ii_doc_1879

.
As the list bellows indicate there were many amendments to the Queensland Constitution albeit
about all where without State referendum since federation and as such ULTRA VIRES (NULL
and VOID)
50 .
p 314 9-3-2009
p315
.
QUOTE
5 parliamentary sovereignty. Parliament has been the supreme body. But when we
no longer supreme. Our parliaments at present are not only legislative, but
constituent bodies. They have not only the power of legislation, but the power of
10 parliamentary sovereignty. No parliament under a federation can be a constituent
instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
15 instead of there being a high court of parliament, you bring into existence a powerful
sole arbiter and interpreter of the constitution.
QUOTE
.
20 QUOTE Chapter 012B
Chapter 012B State referendums
* Gary, what is this State referendums about?
**#** INSPECTOR-RIKATI®, also considering what I have stated in Chapter 032F, G, H,

25 etc, as I have already extensively previously canvassed, a State cannot merely nilly willy transfer
legislative powers to the Commonwealth of Australia because, so to say, politicians happen to
like doing so. The Framers of the Constitution made it very clear that States would require the
approval of their respective State electors to refer legislative powers from a State to the
Commonwealth of Australia. As such, if some politician of some State happens to want to
30 transfer legislative powers to his political mates in the Commonwealth of Australia, then
regardless if he has power of both Houses of the Parliament of the State, he still needs to get
approval of State electors.
The following might clarify this also;
35 123 Alteration of limits of States

The Parliament of the Commonwealth may, with the consent of the
Parliament of a State, and the approval of the majority of the
electors of the State voting upon the question, increase, diminish,
or otherwise alter the limits of the State, upon such terms and
40 conditions as may be agreed on, and may, with the like consent,
make provision respecting the effect and operation of any increase
or diminution or alteration of territory in relation to any State
affected.
45 From Section 128

No alteration diminishing the proportionate representation of any
State in either House of the Parliament, or the minimum number of
representatives of a State in the House of Representatives, or
increasing, diminishing, or otherwise altering the limits of the
50 State, or in any manner affecting the provisions of the Constitution
in relation thereto, shall become law unless the majority of the
p 315 9-3-2009
p316
electors voting in that State approve the proposed law.
Section 128 being;
5 Chapter VIII—Alteration of the Constitution

128 Mode of altering the Constitution [see Note 1]
This Constitution shall not be altered except in the following
manner:
The proposed law for the alteration thereof must be passed by an
10 absolute majority of each House of the Parliament, and not less
than two nor more than six months after its passage through both
Houses the proposed law shall be submitted in each State and
Territory to the electors qualified to vote for the election of
members of the House of Representatives.
15
But if either House passes any such proposed law by an absolute
majority, and the other House rejects or fails to pass it, or passes it
with any amendment to which the first-mentioned House will not
agree, and if after an interval of three months the first-mentioned
20 House in the same or the next session again passes the proposed
law by an absolute majority with or without any amendment which
has been made or agreed to by the other House, and such other
House rejects or fails to pass it or passes it with any amendment to
which the first-mentioned House will not agree, the
25 Governor-General may submit the proposed law as last proposed
by the first-mentioned House, and either with or without any
amendments subsequently agreed to by both Houses, to the electors
in each State and Territory qualified to vote for the election of the
House of Representatives.
30
When a proposed law is submitted to the electors the vote shall be
taken in such manner as the Parliament prescribes. But until the
qualification of electors of members of the House of
Representatives becomes uniform throughout the Commonwealth,
35 only one-half the electors voting for and against the proposed law
shall be counted in any State in which adult suffrage prevails.
And if in a majority of the States a majority of the electors voting
approve the proposed law, and if a majority of all the electors
voting also approve the proposed law, it shall be presented to the
40 Governor-General for the Queen’s assent.
No alteration diminishing the proportionate representation of any

45 increasing, diminishing, or otherwise altering the limits of the
State, or in any manner affecting the provisions of the Constitution
in relation thereto, shall become law unless the majority of the
In this section, Territory means any territory referred to in
50 section one hundred and twenty-two of this Constitution in
respect of which there is in force a law allowing its
representation in the House of Representatives.
p 316 9-3-2009
p317
Whenever you refer legislative powers from a State to the Commonwealth then you are
“diminishing, or otherwise alter the limits of the State” legislative powers.
123 Alteration of limits of States

5 The Parliament of the Commonwealth may, with the consent of the
Parliament of a State, and the approval of the majority of the
electors of the State voting upon the question, increase, diminish,
or otherwise alter the limits of the State, upon such terms and
conditions as may be agreed on, and may, with the like consent,
10 make provision respecting the effect and operation of any increase
or diminution or alteration of territory in relation to any State
affected.
From Section 128

15 No alteration diminishing the proportionate representation of any
increasing, diminishing, or otherwise altering the limits of the
State, or in any manner affecting the provisions of the Constitution
20 in relation thereto, shall become law unless the majority of the
See also for further set out Chapter 012C.

END QUOTE Chapter 012B
25
QUOTE
Reprinted as in force on 16 February 1996
30 (includes amendments up to Act No. 6 of 1992)
END QUOTE
And
QUOTE
´ 4 List of legislation
35 Constitution Act Amendment Act 1896 60 Vic No. 5
date of assent 24 August 1896
commenced on date of assent
as amended by—
Statute Law Revision Act 1908 8 Edw 7 No. 18 s 2 sch 1
40 date of assent 23 December 1908
Constitution Act Amendment Act 1909 9 Edw 7 No. 18
date of assent 29 December 1909
45 Constitution Act Amendment Act 1919 (No. 2) 10 Geo 5 No. 3
date of assent 27 October 1919
Constitution Act Amendment Act 1922 12 Geo 5 No. 32 s 4 sch
date of assent 23 March 1922
50 commenced on date of assent
Constitution Act Amendment Act 1926 17 Geo 5 No. 2 ss 2, 4
date of assent 6 September 1926
8
p 317 9-3-2009
p318
Constitution Act Amendment Act 1896

date of assent 4 October 1929
5 Constitution Act Amendment Act 1936 1 Edw 8 No. 34 ss 2, 4–5
commenced on 1 July 1936 (see s 5)
date of assent 27 November 1944
Constitution Acts Amendment Act 1948 13 Geo 6 No. 17 pt 2
commenced 1 July 1948 (see s 1(3))
Constitution Acts Amendment Act 1949 13 Geo 6 No. 46
15 date of assent 21 November 1949
Constitution Acts Amendment Act 1950 14 Geo 6 No. 23 pt 2
20 Constitution Acts Amendment Act 1953 2 Eliz 2 No. 3 pt 2
Constitution Acts Amendment Act 1957 6 Eliz 2 No. 16 pt 2
Constitution Acts Amendment Act 1961 No. 20 pt 2
date of assent 4 April 1961
commenced 1 April 1961 (see s 1(3))
30 date of assent 31 March 1964
commenced 1 December 1965 (see s 1(3))
35 Constitution Acts Amendment Act 1968 No. 24 pt 2
Constitution Act Amendment Act 1976 No. 8
9
45 Constitution Act Amendment Act 1896
Constitution Act amendment Act 1984 No. 25
50 date of assent 22 March 1984
Parliamentary Members’ Salaries Act 1988 No. 32 pt 1
55 Constitution Amendment Act 1992 No. 6
date of assent 27 March 1992
ss 1–2 commenced on date of assent
remaining provisions commenced 21 April 1988 (see s 2)
END QUOTE
p 318 9-3-2009
p319
For purpose of comparison I require to refer to the correspondence reproduced below where in
this case the Republic of Singapore did not disregard British COMMON LAW and neither
disallowed British law albeit subject to Singaporean laws. As such it was clear what was
5 provided for and not like Queensland on the one hand claiming British Law no longer applies
since 1986 but when it comes to the parliamentarians themselves then somehow they do not
belief their own stories and so still pursue an amendment on the basis that British legislation
would still apply to Queensland.
.
10 QUOTE 24-11-2005 CORRESPONDENCE
WITHOUT PREJUDICE
President S. R Nathan, Singapore 24-11-2005
feedback_unit@mcys.gov.sg
15 Cc;Mr Lee Hsien Loong, Prime Minister singov_webmaster@mica.gov.sg

Chee Soon Juan, secretary-general Democratic party. singov_webmaster@mica.gov.sg
Mr Lex Lasry QC, Chairman of Victoria Criminal Bar Association Lex.lasry@vicbar.com.au
Nigel Moore High commissioner to Singapore
Rudd, Mr Kevin, Member for Griffith Kevin.Rudd.MP@aph.gov.au
20 Robert Hull Attorney-General info@parliament.vic.gov.au
Mr John Howard David.Hawker.MP@aph.gov.au Mark Vaile (Nationals) mark.vaile.mp@aph.gov.au
Mr Kim Beezley, Leader of Her Majesty (Federal) Opposition, Kim.Beazley.MP@aph.gov.au
Rt Hon Malcolm Fraser Malcolm.Fraser@aph.gov.au Mr Michael Jefferey, governor-general@gg.gov.au
Mirko Bagaric hoslaw@deakin.edu.au Luke Howie info@homelandsecurity.org.au
25 Mr John Stanhope leah.deforest@act.gov.au Solicitor-General of Victoria info@parliament.vic.gov.au
Christoph Pyne C.Pyne.MP@aph.gov.au Mr Bob Brown, Senator (Greens) senator.brown@aph.gov.au
John Cobb John.Cobb.MP@aph.gov.au Senator Lyn Allison (AD) senator.allison@aph.gov.au
The Honourable Clare Martin MLA chiefminister.nt@nt.gov.au
THE HON DR GEOFF I GALLOP BEc MA MPhil DPhil MLA wa-government@dpc.wa.gov.au
30 Premier The Hon. Morris IEMMA, MP thepremier@www.nsw.gov.au
Peter Beattie MP, Premier premiers.master@premiers.qld.gov.au
Premier Mr Paul Lennon judy.jackson@justice.tas.gov.au
Hon MIKE RANN MP ramsay@parliament.sa.gov.au
Terry O’Gorman Australian Council for Civil Liberties robogor@ozemail.com.au
35 Mr Peter Webb, secretary-general The Law Council of Australia mail@lawcouncil.asn.au
Mr Richard Faulks, President, Australian Lawyers Alliance enquiries@lawyersalliance.com.au
James McConvill, Lecturer at Deakin University law School, Melbourne james.mcconvill@deakin.edu.au
Mr Lex Lasry QC, Chairman of Victoria Criminal Bar Association Lex.lasry@vicbar.com.au
Aleander Downer (Foreign Affairs & Peter Costello, treasurer, David.Hawker.MP@aph.gov.au
40 Prof Andrew Fraser, andrew.fraser@mq.edu.au Steven Ciobo Steven.Ciobo.MP@aph.gov.au
Carmen Lawrence Carmen.Lawrence.MP@aph.gov.au Tony Jones lateline@your.abc.net.au,
Chris Ellison Minister of Justice David.Hawker.MP@aph.gov.au
Mr P Ruddock, Attorney General David.Hawker.MP@aph.gov.au
marise@marisepayne.com, P.Georgiou.MP@aph.gov.au, J.Moylan.MP@aph.gov.au
45 Senator George Brandis, senator.brandis@aph.gov.au Senator Barnaby Joyce senator.joyce@aph.gov.au
Hotham Mission (Asylum Seekers Project) asp4@sub.net.au director@republic.org.au
Salvation Army webmaster@aue.salvationarmy.org
Dr Anne McNevin Australian national Univeristy anne.mcnevin@anu.edu.au
Mr John Von Doussa QC, President, HREOC paffairs@humanrights.gov.au
50 Mr Vadaketh
Dr Christopher Ward Marcus Einfeld QC
Bill Shorten (Union leader)
Commonwealth Director of Public Prosecutions
EXTREMEURGENT p 319 9-3-2009

p320
Re: Constitutional issues, Implied Abolition of Death penalty & Nguyan Tuong Van, etc.
Sir,
5 It is my view that unlikely the execution of Nguyan Tuong Van has been given proper
consideration as to the implications of the Constitution of the Republic of Singapore, as set out
some of it below. Hence, I urge you immediate attention to this matter, and so the Government of
Singapore.
Nguyan Tuong Van as like any citizen of Singapore by the provisions of the Constitution of
10 the Republic of Singapore has the same rights to obtain the benefits of treaties/laws of other
Commonwealth countries, including the abolition of the death penalty, as is in fact implied to
Singapore, just that the Government of Singapore my not have been aware of this.
I urge you to at the very least postpone any execution as to enable to have appropriately verified
what I am writing about, as to ensure that Nguyan Tuong Van is not executed and then it is
15 confirmed that indeed the execution might have been unconstitutional (by implication) and or
otherwise he was entitled to have the benefits of treaties made by the Government with other
nations. After all, if the Singaporean Government were to disregard those issues, it may not only
act contrary to the spirit of the relevant treaties, the British law and other provisions
“EMBEDDED” in the Constitution, but also may undermine the rights of citizens of Singapore
20 when they might be facing problems within Commonwealth nations.
I do not seek to under estimate the sever consequences of any drug smuggling, and do have the
view that a person must be appropriately punished, but a death sentence in my view is and
remains barbaric. It is what causes children to grow up becoming adults and have a disregard of
the value of human life and then may use the killing of another human being when ever they
25 consider it justified, because they have been taught by their government it is all right to execute a
person if you can apply the right justification. Every one, including terrorist, have their
justification for killing other human beings. And, if the attempt of Nguyan Tuong Van was to
import drugs out from Singapore into the Commonwealth of Australia, ironically he might have
been doing Singapore a service as to take drugs from the country, and the real crime might be
30 deemed to have been intended against the Commonwealth of Australia, if that was his intended
target. Hence, by a treaty I view it would be appropriate for the Singaporean government to hand
over Nguyan Tuong Van and so as to enable him to face the consequences of his actions within
the Australian legal system.
QUOTE
35 WITHOUT PREJUDICE
Downer, The Hon Alexander, Member for Mayo A.Downer.MP@aph.gov.au 21-11-2005
Cc Mr Lex Lasry QC, Chairman of Victoria Criminal Bar Association Lex.lasry@vicbar.com.au
Rudd, Mr Kevin, Member for Griffith Kevin.Rudd.MP@aph.gov.au
40
Ref; Tuong Van Nguyen
Sir,
At the very least, I have great respect for the effort Mr Lex Lasry QC is giving to try to
45 save the life of his client, irrespective of what his crime might have been.
I urge you to be open minded, and consider the following as a man’s life (and that of others later)
might depend on it.
p 320 9-3-2009
p321
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Act and as such
considering the decision of Aggregate Industries UK Ltd., R (on the application of) v English
Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments - Mark
(Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for judgment
5 IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003] EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is
complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is. I am really unknown what the background of Singaporean constitutional law
10 might be, but assuming this is British (constitutional) law also, then the same would be
applicable to Singapore.
Regardless if you initially may not agree with my views, at least have it checked out, as it turns
out I am right then Tuong Van Nguyen’s life might be saved from the gallows! Surely the life of
an Australia is worth it to check it out?
15
Awaiting your response, G. H. SCHOREL-HLAVKA
END QUOTE
QUOTE
PART I
20 PRELIMINARY
Citation.
1. This Constitution may be cited as the Constitution of the Republic of Singapore.
Amendment of Constitution.
25 5.
(1) Subject to this Article and Article 8, the provisions of this Constitution may be
amended by a law enacted by the Legislature.
(2) A Bill seeking to amend any provision in this Constitution shall not be passed by
Parliament unless it has been supported on Second and Third Readings by the votes of not
30 less than two-thirds of the total number of the elected Members of Parliament referred to in
Article 39 (1) (a).
16/84.
Act 17/94 wef 1.10.94 vide S 367/94
PART III
35 PROTECTION OF THE SOVEREIGNTY OF THE REPUBLIC OF

SINGAPORE
No surrender of sovereignty by merger or in any other manner, nor relinquishment of
control over the Police Force or the Armed Forces unless supported by not less than
two-thirds of total votes cast by electors at a referendum.
40
No amendment to this Part unless supported by not less than two-thirds of total votes
cast by electors at a referendum.
8. --(1) A Bill for making an amendment to this Part shall not be passed by Parliament
p 321 9-3-2009
p322
unless it has been supported, at a national referendum, by not less than two-thirds of the
total number of votes cast by the electors registered under the Parliamentary Elections Act.
END QUOTE
QUOTE
5 Part VA;
"existing law" means any law having effect as part of the law of Singapore immediately
before the commencement of this Constitution;
END QUOTE
10 QUOTE
"law" includes written law and any legislation of the United Kingdom or other enactment
or instrument whatsoever which is in operation in Singapore and the common law in so far
as it is in operation in Singapore and any custom or usage having the force of law in
15 Singapore;
END QUOTE
Legislation therefore includes all laws inhired from the United kingdom, including the magna
Carta, the Bill of Rights and other legislation. More over, it includes also that the legal provision
that the British Parliament can always amend its own laws remains applicable. Therefore the
20 United kingdom by signing the European Union treaty and so its acceptance of its Constitution,
in effect has ensured that the right of the British parliament to compliment the Constitution of
Singapore was never extinguished.
Again:
25 or instrument whatsoever which is in operation in Singapore
the right of any parliament to amend its own legislation, including a constitution can only be
limited by the provisions of the Constitution, but the right to provide complimentary legislation,
such as the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) is clearly not avoided, as any legislation applicable to
30 British law automatically applies to all British law, with the exeption that constiotutional law
cannot be interfered with by implied amendments.
The purpose of the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) is not to undermine the THE REPUBLIC AND THE
CONSTITUTION but rather is complimentary to the provisions of the Constitution.
35 QUOTE
Equality.
12. --(1) All persons are equal before the law and entitled to the equal protection of the law.
QUOTE
40 In this regard, it makes not one of iota difference if Nguyen Tuong Van is an Singaporean
national or not. His rights remains the same. However, where the government has entered a
treaty, such as with the Commonwealth of Australia, then this can be honoured and Nguyen
Tuong Van be extradited for purpose of such treaty, as shown below the government of
Singapore is entitled to make a treaty;
p 322 9-3-2009
p323
(b) entering into any treaty, agreement, contract, pact or other arrangement with any other
sovereign state or with any Federation, Confederation, country or countries or any
association, body or organisation therein, where such treaty, agreement, contract, pact or
5 arrangement provides for mutual or collective security or any other object or purpose
whatsoever which is, or appears to be, beneficial or advantageous to Singapore in any way.
If therefore the Singaporean government did enter a treaty for the “beneficial or advantageous to
Singapore in any way” then it must be held that in those circumstances the extradition of Nguyen
10 Tuong Van is in the interest of Singapore. To do otherwise would in effect implied a
nullification of the treaties which provide for the extradition of Nguyen Tuong Van!
QUOTE
PART II
THE REPUBLIC AND THE CONSTITUTION

15 Republic of Singapore.
3.
Singapore shall be a sovereign republic to be known as the Republic of Singapore.
Supremacy of Constitution.
4. This Constitution is the supreme law of the Republic of Singapore and any law enacted
20 by the Legislature after the commencement of this Constitution which is inconsistent with
this Constitution shall, to the extent of the inconsistency, be void.
END QUOTE
In my view any laws regarding the death penalty therefore is void.

25
QUOTE
Participation in co-operative international schemes which are beneficial to Singapore.
7. Without in any way derogating from the force and effect of Article 6, nothing in that
Article shall be construed as precluding Singapore or any association, body or organisation
30 therein from —
(a) participating or co-operating in, or contributing towards, any scheme, venture, project,
enterprise or undertaking of whatsoever nature, in conjunction or in concert with any other
sovereign state or with any Federation, Confederation, country or countries or any
association, body or organisation therein, where such scheme, venture, project, enterprise
35 or undertaking confers, has the effect of conferring or is intended to confer, on Singapore
or any association, body or organisation therein, any economic, financial, industrial, social,
cultural, educational or other benefit of any kind or is, or appears to be, advantageous in
any way to Singapore or any association, body or organisation therein; or
(b) entering into any treaty, agreement, contract, pact or other arrangement with any other
40 sovereign state or with any Federation, Confederation, country or countries or any
association, body or organisation therein, where such treaty, agreement, contract, pact or
arrangement provides for mutual or collective security or any other object or purpose
whatsoever which is, or appears to be, beneficial or advantageous to Singapore in any way.
END QUOTE
p 323 9-3-2009
p324
QUOTE
Liberty of the person.
9. --(1) No person shall be deprived of his life or personal liberty save in accordance with
law.
5 (2) Where a complaint is made to the High Court or any Judge thereof that a person is
being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied
that the detention is lawful, shall order him to be produced before the Court and release
him.
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his
10 arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released, he shall, without unreasonable delay, and
in any case within 48 hours (excluding the time of any necessary journey), be produced
before a magistrate and shall not be further detained in custody without the magistrate’s
authority.
15 16/84.
(5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for
contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.
[M5
28/86.
20 (6) Nothing in this Article shall invalidate any law —
(a) in force before 16th September 1963 which authorises the arrest and detention of any
person in the interests of public safety, peace and good order; or
(b) relating to the misuse of drugs or intoxicating substances which authorises the arrest
and detention of any person for the purpose of treatment and rehabilitation,
25 by reason of such law being inconsistent with clauses (3) and (4), and, in particular,
nothing in this Article shall affect the validity or operation of any such law before 10th
March 1978.
END QUOTE
30 This part does not refer to the imposition of a death penalty, but relates to “arrest” and
“detention”, and as such must be deemed to be an implied prohibition to use a death penalty!
QUOTE
PART V
35 THE GOVERNMENT
CHAPTER 1
The President
The President.
17. --(1) There shall be a President of Singapore who shall be the Head of State and shall
40 exercise and perform such powers and functions as are conferred on the President by this
Constitution and any other written law.
END QUOTE
QUOTE
Discharge and performance of functions of President.
45 21. --(1) Except as provided by this Constitution, the President shall, in the exercise of his
p 324 9-3-2009
p325
functions under this Constitution or any other written law, act in accordance with the
advice of the Cabinet or of a Minister acting under the general authority of the Cabinet.
(2) The President may act in his discretion in the performance of the following functions:
(a) the appointment of the Prime Minister in accordance with Article 25;
5 (b) the withholding of consent to a request for a dissolution of Parliament;
(c) the withholding of assent to any Bill under Article 22E, 22H, 144 (2) or 148A;
(d) the withholding of concurrence under Article 144 to any guarantee or loan to be given
or raised by the Government;
(e) the withholding of concurrence and approval to the appointments and budgets of the
10 statutory boards and Government companies to which Articles 22A and 22C, respectively,
apply;
(f) the disapproval of transactions referred to in Article 22B (7), 22D (6) or 148G;
(g) the withholding of concurrence under Article 151 (4) in relation to the detention or
further detention of any person under any law or ordinance made or promulgated in
15 pursuance of Part XII;
(h) the exercise of his functions under section 12 of the Maintenance of Religious Harmony
Act; and
Cap. 167A.
(i) any other function the performance of which the President is authorised by this
20 Constitution to act in his discretion.
(3) The President shall consult the Council of Presidential Advisors before performing any
of his functions under Articles 22, 22A (1), 22B (2) and (7), 22C (1), 22D (2) and (6), 144,
148A, 148B and 148G.
(4) Except as otherwise provided in clause (3), the President may, in his discretion, consult
25 the Council of Presidential Advisors before performing any of his functions referred to in
clause (2) (c) to (i).
(5) The Legislature may be law make provision to require the President to act after
consultation with, or on the recommendation of, any person or body of persons other than
the Cabinet in the exercise of his functions other than ——
30 (a) functions exercisable in his discretion; and
(b) functions with respect to the exercise of which provision is made in any other provision
of this Constitution.
END QUOTE
THEREFORE, I VIEW THE PRESIDENT IS OBLIGATED TO ENSURE THAT THE
35 CONSTITUTION IS APPROPRIATELY COMPLIED WITH AND SO ANY LAWS
VALIDLY ENACTED WITHIN THIS CONSTITUTION. MEANING, THAT ANY LAWS
PROVIDING FOR THE IMPOSITION OF THE DEATH PENALTY ARE ULTRA VIRES
AND PROHIBITED FROM BEING ENFORCED.
QUOTE
40 CHAPTER 2
The Executive
Executive authority of Singapore.
23. --(1) The executive authority of Singapore shall be vested in the President and
exercisable subject to the provisions of this Constitution by him or by the Cabinet or any
45 Minister authorised by the Cabinet.
END QUOTE
The constitution using the wording “by him or the Cabinet” thereby allows the president to
exercise Executive powers without the Cabinet, subject to the Constitution.
p 325 9-3-2009
p326
QUOTE
Cabinet.
24. --(1) There shall be in and for Singapore a Cabinet which shall consist of the Prime
5 Minister and such other Ministers as may be appointed in accordance with Article 25.
(2) Subject to the provisions of this Constitution, the Cabinet shall have the general
direction and control of the Government and shall be collectively responsible to
Parliament.
END QUOTE
10 While this entitles the Cabinet to control the Government it does not rule out the President from
exercising powers in regard of enforcement of law and/or treaties enacted subject to the
Constitution, and as such to honour any treaty which Singapore made with the Commonwealth of
Australia.
The very issue is that a treaty was made at the time for the good of Singapore, and as such the
15 president therefore is entitled to ensure that provisions of such treaty are adhered too and
Nguyen Tuong Van is therefore extradited to the Commonwealth of Australia.
QUOTE
Commonwealth citizenship.
20 139. --(1) In accordance with the position of Singapore within the Commonwealth, every
person who is a citizen of Singapore enjoys by virtue of that citizenship the status of a
Commonwealth citizen in common with the citizens of other Commonwealth countries.
(2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation
to a citizen of the Republic of Ireland who is not also a Commonwealth citizen as it applies
25 in relation to a Commonwealth citizen.
END QUOTE
In my view, this also enshrines that Nguyen Tuong Van is in effect entitled as a citizen of
Singapore to the rights as like Singaporeans are to the rights of being a Commonwealth citizen.
30 Meaning that laws of the Commonwealth countries and implied laws can be applied to any
commonwealth citizen, irrespective if they are Singaporean nations or not. where then there is a
treaty, then Nguyen Tuong Van is entitled to the benefit of any relevant treaty, such as a
narcotics convention. As implied by this Constitution.
QUOTE
35 Application of Third Schedule.
140. Until the Legislature otherwise provides by law, the supplementary provisions
contained in the Third Schedule shall have effect for the purposes of this Part.
END QUOTE
QUOTE
40 Restrictions on preventive detention.
151. --(1) Where any law or ordinance made or promulgated in pursuance of this Part
provides for preventive detention —
(a) the authority on whose order any person is detained under that law or ordinance shall as
soon as may be, inform him of the grounds for his detention and, subject to clause (3), the
45 allegations of fact on which the order is based, and shall give him the opportunity of
making representations against the order as soon as may be; and
(b) no citizen of Singapore shall be detained under that law or ordinance for a period
exceeding 3 months unless an advisory board constituted as mentioned in clause (2) has
considered any representations made by him under paragraph (a) and made
50 recommendations thereon to the President.
(2) An advisory board constituted for the purposes of this Article shall consist of a
chairman, who shall be appointed by the President and who shall be or have been, or be
p 326 9-3-2009
p327
qualified to be, a Judge of the Supreme Court, and two other members, who shall be
appointed by the President after consultation with the Chief Justice.
(3) This Article does not require any authority to disclose facts the disclosure of which
would, in its opinion, be against the national interest.
5 [M 151
(4) Where an advisory board constituted for the purposes of this Article recommends the
release of any person under any law or ordinance made or promulgated in pursuance of this
Part, the person shall not be detained or further detained without the concurrence of the
President if the recommendations of the advisory board are not accepted by the authority
10 on whose advice or order the person is detained.
END QUOTE
In my view, a person sentenced to death (if this is not in itself ULTRA
VIRES/UNCONSTITUTIONAL), but has not been specifically ordered to serve a term of
15 imprisonment until the execution of this person, then must be released after the passing of 3
months. While this part relates to “no citizen of Singapore” it is already shown above that
Commonwealth citizenship provided equality to any other person who is a citizen of the
Commonwealth with that of a citizen of Singapore.
The issue of commuting a death sentence into life imprisonment may underline that a death
20 sentence is not the same as sending a person to imprisonment. Therefore any omission to
sentence a person to a term of imprisonment until the execution itself ought to be accepted as a
legal floor that prevents any person being held beyond 3 months to be executed. It also ought to
be understood that otherwise a prisoner could be kept in imprisonment for the about the rest of
his natural life and then be executed, having served perhaps already 40 years imprisonment,
25 causing a double jeopardy to serve two different sentences, this, where as had the Court consider
this, then it might have order a life sentence in the first place without any death penalty.
QUOTE
Date of coming into operation of Constitution.
156. Subject to the provisions of Part XIV, this Constitution shall come into operation
30 immediately before 16th September 1963.
END QUOTE
QUOTE
Rights, liabilities and obligations.
161. --(1) All rights, liabilities and obligations of Her Majesty in respect of the
35 Government shall on and after the commencement of this Constitution be rights, liabilities
and obligations of the State of Singapore.
(2) In this Article, rights, liabilities and obligations include rights, liabilities and
obligations arising from contract or otherwise, other than rights to which Article 160
applies.
40 [104
Existing laws.
162. Subject to this Article, all existing laws shall continue in force on and after the
commencement of this Constitution and all laws which have not been brought into force by
the date of the commencement of this Constitution may, subject as aforesaid, be brought
45 into force on or after its commencement, but all such laws shall, subject to this Article, be
construed as from the commencement of this Constitution with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with this Constitution.
END QUOTE
50 Again;
p 327 9-3-2009
p328
and all laws which have not been brought into force by the date of the commencement of
this Constitution may, subject as aforesaid, be brought into force on or after its
commencement, but all such laws shall, subject to this Article, be construed as from the
commencement of this Constitution with such modifications, adaptations, qualifications
5 and exceptions as may be necessary to bring them into conformity with this Constitution.
This clearly does provide for the application of the The European Convention for the
protection of Human Rights and Fundamental Freedoms (“the ECHR”)!
10 Aggregate Industries UK Ltd., R (on the application of) v English Nature and & Anor [2002]
EWHC 908 (Admin) (24th April, 2002)
53. In support of his submission that, for Article 6(1) to be engaged, it was necessary for the
relevant proceedings to be “directly decisive” of the civil rights in question, Mr Sales
referred to and relied upon what he described as the “consistent” body of European
15 jurisprudence on this point over the last thirty years (see paragraph 41 of Mr Sales’
written skeleton argument) in cases such as Ringeisen -v- Austria (No. 1) (1971) 1
EHRR 455 at paragraph. 94, Albert & Le Compte -v- Belgium (1983) 18 EHRR 533 at
paragraph 28, Benthem -v- Netherlands (1986) 8 EHRR 1, Boden -v- Sweden (1987)
10 EHRR 367 at paragraph 30, H -v- France (1989) 12 EHRR 74 at paragraphs 46-47
20 and Barmer-Schafroth -v- Switzerland (1997) 25 EHRR 598 at paragraph 32. In the
course of his submissions, Mr Sales referred to the following passage in the judgment of
the European Court of Human Rights (“the ECtHR”) in the case of Enzi -v- Austria
(Application no. 29268/95) as a convenient and succinct statement of the relevant
principles of law upon which he relied:
25 “The applicability of Article 6 depends on whether there was a dispute

over “rights and obligations” which can be said, at least on arguable
grounds, to be recognised under domestic law and, if so, whether this
“right” was of a “civil” character within the meaning of Article 6(1) (see
the Oerlemans -v- the Netherlands judgment of 27 November 1991 …
30 paragraphs 45-49). Article 6(1) only applies if the right is civil in character
(see the Benthem -v- the Netherlands judgment of 23 October 1985 …
paragraph 32). The “dispute must be genuine and serious; it may relate not
only to the existence of a right but also to its scope and the manner of its
exercise. The outcome of the proceedings must be directly decisive for the
35 right in question, mere tenuous connections or remote consequences not
being sufficient to bring Article 6(1) into play (see the Allan Jacobson -v-
Sweden judgment of 25 October 1989 … paragraphs 66-67, and the
Masson and Van Zon -v- the Netherlands judgment of 28 September 1995
… at paragraph 44).”
40 While you may have difficulties in following my reasoning of argument, in view that I
understand no one so far may have even raised this kind of argument regarding Nguyan Tuong
Van, I urge you to at least order a postponement of any execution as to ensure that the issues
raised by me are appropriately considered.
If by implication or otherwise the death penalty must be considered abolished, and/or that
45 Nguyan Tuong Van has the rights of benefits of the government having entered in treaties with
other countries for the good of Singapore then such rights be catered for, and if needed Mr
Nguyan Tuong Van is deported to the Commonwealth of Australia subject to the
Commonwealth of Australia instituting proceedings against Nguyan Tuong Van in regard of his
involvement in drug smuggling.
50
p 328 9-3-2009
p329
Albeit, I have absolutely no knowledge as to the conduct of the proceedings in relation to

Nguyan Tuong Van when he was subsequently convicted, I doubt if in fact matters I raise above
ever were considered at the time Nguyan Tuong Van had been apprehended.
Because, as I can filter from media reports that albeit Nguyan Tuong Van has been sentenced to
5 death but not sentenced to a term of imprisonment, and the 3 month period already has been
passed, then the Singaporean government would be well entitled to deport Nguyan Tuong Van
immediately, even if this means the death sentence scheduled for 2 December 2005 cannot
proceed.
Because I have no knowledge of Singaporean legislations in existing, etc, I make my
10 submissions based upon the limited knowledge I have, but please feel free to use any other
constitutional and/or legislative powers to deport Nguyan Tuong Van from Singapore as a
matter of extreme urgency.
For the record, I am utterly despised by many judges/lawyers/politicians for exposing what they
15 overlooked, and my nick name by judges is TRAPDOOR spider. As such, if anyone feel
awkward about my writings that I raised relevant issues everyone else overlooked then do not be
embarrassed as I have this ongoing happening. Just feel lucky I am not residing in Singapore and
do this on a daily basis. And, to me, when a persons’ life is at steak, I view, I have the duty and
obligation to pursue this persons right to life, regardless who may dislike me for exposing the
20 true facts.
I look forwards to your most urgent response to confirm that Nguyan Tuong Van is being
deported to the Commonwealth of Australia and now is our problem to deal with.

25 END QUOTE 24-11-2005 CORRESPONDENCE
.
Court and Tribunal Decisions - Ireland
The Case of Tanistry (Le Case de Tanistry)
Irish Court of King’s Bench, on referral from the Presidency Court of Munster
30 (1608) Davis 28; 80 ER 516[1]

QUOTE
For the kings of England have always claimed and had within their dominions, a royal
monarchy and not a despotick monarchy or tyranny; and under a royal monarchy the
subjects are freemen, and have a property in their goods, and a freehold and inheritance in
35 their goods, and a freehold and inheritance in their lands; but under a despotick monarchy
or tyranny, they are all as villains or slaves, and proprietors of nothing but at the will of
their Grand Seignor or tyrant, as in Turkey and Muscovy.
.END QUOTE
.
40 FEE SIMPLE is a royal prerogative that is not by tyranny to be exploited by the Government of
the Day to enact legislation through the parliament to seek to rob the FEE SIMPLE holder of
his/her rights but is one that must be deemed to honour the prerogative sanction of the Crown. To
do otherwise is to void FEE SIMPLE and to reduce subjects holding FEE SIMPLE to being no
more then slaves of a tyrant.
45 .
HIGH COURT OF AUSTRALIA
p 329 9-3-2009
p330
The Commonwealth of Australia -v- The State of New South Wales and Another [1923]
HCA 34; (1923) 33 CLR 1 (9 August 1923)
The Commonwealth of Australia Plaintiff; against The State of New South Wales and
5 Another Defendants.
H C of A
9 August 1923
QUOTE
As the Commonwealth's power to take depends on this Act, is sec. 6 to be construed as
10 excluding, even by agreement, the sale of the whole physical mass, or must the sale be
subject to excision of the royal metals? And, further, if a subject is a holder of a mining
lease, is the land excluded from the Act except subject to the mining rights of the
leaseholder? Sec. 16 shows that this cannot be so. But if not, how are the precious metals
excluded at all? Sub-sec. 2 of that section connects up with the definition of "Crown land,"
15 and by its express terms includes land vested in any person (1) on behalf of the Crown or
(2) "for any public purpose," and provides that the notification shall cancel any dedication
or reservation. It would therefore be clear that, as to land vested in (say) the Treasurer "on
behalf of the Crown" for any purpose whatever, all reservations—statutory or common
law—cease upon the notification. Having regard to the governmental nature of the
20 enactment, why should the particular reservation be excluded? Sec. 17 converts "the title of
the State" to any Crown land to a claim for compensation. "Title" is as applicable to
prerogative title as to ordinary territorial title, and, read with the other provisions, this
extreme generality of expression supports the wider view. Sec. 27, providing for
compensation to the State, enacts by sub-sec. 2 that "the compensation shall be estimated as
25 if the State were the proprietor of an estate in fee simple in the land, subject to any estate or
interest which any person had in the land at the time of its acquisition by the
Commonwealth. " The words "estate in fee simple" in this sub-section must not be
misunderstood. It merely denotes the quantity of interest remaining in the State after
carving out whatever interests the State has parted with. The word "fee" in this
30 connection has no reference to "fee" denoting feudal tenure (see Halsbury's Laws of
England, vol. xxiv., p. 164, note (c)). In the case of Vigers v. Dean of St. Paul's[46]
Henry VIII. and Charles II., as well as other Sovereigns, were alleged to be seised of
lands "as of fee." In Challis's Real Property, 3rd ed., p. 218, it is stated with perfect
accuracy:—"In the language of the English law, the word fee signifies an estate of
35 inheritance as distinguished from a less estate; not, as in the language of the feudists, a
subject of tenure as distinguished from an allodium. Allodium being wholly unknown
to English law, the latter distinction would in fact have no meaning. A fee simple is the
most extensive in quantum, and the most absolute in respect to the rights which it
confers, of all estates known to the law. It confers, and since the beginning of legal
40 history it always has conferred, the lawful right to exercise over, upon, and in respect
to, the land, every act of ownership which can enter into the imagination, including
the right to commit unlimited waste; and, for all practical purposes of ownership, it
differs from the absolute dominion of a chattel, in nothing except the physical
indestructibility of its subject. Besides these rights of ownership, a fee simple at the
45 present day confers an absolute right, both of alienation inter vivos and of devise by
will."
[ "inter vivos" is Latin, meaning: from one living person to another living person. ]
END QUOTE
p 330 9-3-2009
p331
.
It also stated;
QUOTE
(2)
5 The title transferred by sec. 85 is taken from the State, as I have already said, adversely to
State law and by a law superior, and by that superior law is vested in the Commonwealth;
and, as that superior law is the sole source of title, it follows that nothing henceforth can
depend on State registration laws or State laws of any kind.
But as the land—not being in Commonwealth "territory" properly so called, that is, outside
10 a State—remains in the State boundaries, it was necessary to provide that the governmental
powers of the Commonwealth—exclusive in themselves—should, for the purpose for
which the land was transferred, be entirely free from State jurisdiction. To this end sec. 52
(I.) was shaped in the form in which it exists. It enacts that the Commonwealth Parliament
shall have exclusive power to legislate for "the seat of government of the Commonwealth,
15 and all places acquired by the Commonwealth for public purposes." Even in America, it
may be necessary to repeat, where no such explicit law exists, it is held that the Congress
may validly legislate for the protection of its public lands, even within a State. As Brown J.
said for the Court, in Camfield v. United States[53], "a different rule would place the public
domain of the United States completely at the mercy of State legislation." This was a
20 decision in 1897, and the later Commonwealth Constitution has provided specifically, and
in larger terms, for the Federal power. The grant of exclusive power carries an inevitable
inference with it. It shows that the proprietorship and the sovereignty were intended to go
together in this respect.
END QUOTE
25 .
The Framers of the Constitution in fact did debate this issue at length and made known that
where the Commonwealth where to purchase land holdings (property) within the sovereign
territories of a State and do so with the CONSENT of the State then all State legislative powers
came to an end and for all purposes and intent in regard of the property concerned the
30 Commonwealth of Australia became its sovereign.
This very much was an issue that Mr G. H. Schorel-Hlavka used in his correspondence to the
then Prime Minister Mr John Howard, when he contemplated to sell the Commonwealth
property Point Nepean to private enterprise and Mr G. H. Schorel-Hlavka pointed out that all
State legislative powers were extinguished and as such the Commonwealth would be required to
35 set up its own police force, building regulations, etc, if it were to sell land to private ownership as
otherwise the only alternative was to return the property to the State of Victoria so it could be
again subject to the State of Victoria legislative powers.
It may be noted that the above mentioned judgment stated;
QUOTE
40 This was a decision in 1897, and the later Commonwealth Constitution has provided
specifically, and in larger terms, for the Federal power. The grant of exclusive power
carries an inevitable inference with it. It shows that the proprietorship and the sovereignty
were intended to go together in this respect.
END QUOTE
45 .
p 331 9-3-2009
p332
Yet at this time the High Court of Australia had effectively (albeit unconstitutionally) banned the
usage of the Hansard records of the Constitution Convention Debates since 1904, while itself
seeking to rely upon it.
Still, as shown below the Commonwealth would become “sovereign” in right of any and all
5 property that became sovereign property of the Crown in right of the Commonwealth albeit it
could not be argued that any FEE SIMPLE that may have existed already could have been
terminated by the transfer of the Crown in right of a State to the Crown in right of the
Commonwealth.
.
10 Even where the State may agree for the acquisition of certain property for Commonwealth
purposes then if there is a FEE SIMPLE upon the land applicable then the State has no business
to consent to a transfer where it would cause a detrimental affect upon the FEE SIMPLE rights.
To do otherwise would be tyranny by the Crown.
.
15
QUOTE Mr. ISAACS.-
But, as far as punishing crime is concerned, as far as any other ordinary state
supervision relates, not inconsistent with the performance of the supreme functions of
the Commonwealth, the ordinary state law will run.
20 END QUOTE
This quotation is very important as it indicates that where the Commonwealth does not hold land
as a sovereign but no more but as a “proprietor” then the Commonwealth is bound by State laws
not inconsistent with the performance of its functions.
.
25 For example we have Australia Post who since federation was a Commonwealth organ and was
delivering mail. Since the invention of motor bikes/scooters to be used for postal delivery
somehow Australia Post has commenced to disregard State laws and has postal service people (or
their contractors) to disregard state laws and drive on footpaths, etc. This became more
noticeable when Mr G. H. Schorel-Hlavka’s wife, then about 72 years old, had planted flowers
30 in the front garden only for the Australia Post delivery person to drive across the flowers time
and again, resulting in the destruction of the plants and also being detrimental to his wife’s
health. As result, faced with this blatant destructive conduct he erected a retaining wall
preventing all together the post man to drive over plants/flowers and in fact moving the mail box
further away from the footpath, so that now the postman would have to spend more time to
35 deliver the mail. As such the ignorant conduct of the postman to avoid willful destruction
resulted in the end in creating it more difficult for himself to deliver. Somehow it seems the High
Court of Australia seemed to have sanctioned that Australia Post can disregard State laws such as
by contractors operating for Australian Post, even so the function of Australia Post to deliver
postal articles never was prevented by State law and was done so for decades without problems
40 but it became an issue when Australian Post workers or so contractors were starting to drive on
footpaths ignoring the rule of law.
.
While Australia Post vans do end up parking often outside parking bays where ever the driver
desires, knowing very well little will be done by a council to prosecute in the assumption that no
45 prosecution can be successful, the truth is that the Commonwealth of Australia was never given
so to say a blank cheque to disregard State legislative provisions and must at all times outside
sovereign held Commonwealth properties comply with the rule of law of any State. The State as
sovereign of State territories then itself can provide appropriate legislative provisions for the
Commonwealth to have its employees conducting their affairs within certain distinct regulated
50 provisions.
p 332 9-3-2009
p333
Somehow the Commonwealth, the States and neither the High Court of Australia seem so far to
understand and comprehend the true constitutional set up in regard of this.
.
5 Further;
Hansard 28-1-1898 Constitution Convention Debates;
QUOTE
Mr. OCONNOR (New South Wales).-I think the honorable member who has last
spoken is quite right; but there is a great distinction between the two classes of
10 matters dealt with in this sub-section. I think that the seat of government of the
Commonwealth ought to be in quite a different position to such matters as the
construction of forts, magazines, arsenals, dockyards, and so on. Dr. Cockburn will
recollect that there is no such power for the acquisition of land for the ordinary public
purposes of the Commonwealth.
15 Dr. COCKBURN.-Might not the power be included in the general powers of sub-section
(37)?
END QUOTE
And
QUOTE
20 Mr. OCONNOR.-No. The only powers that can be held to be given are those which
are expressly given.
END QUOTE
.
What this means is that the Commonwealth could not just go and acquire land from states
25 territories for land speculation and then sell it rather it is limited to acquisition of land only for
the purpose of for what it has legislative powers to. As such Woomera (SA) usage for testing of
armed forces of foreign nations by a private company hiring this out is unconstitutional, as this is
not a constitutional power and rather is a private enterprise conduct not provides for and/or
permitted within the terms of the Constitution.
30 .
QUOTE
WITHOUT PREJUDICE
Ms Joan Kirner 28-10-2002
Former Premier of Victoria
35 Ph; 9651-6510
Fax; 9651-6515
40 Re: Would the sale of Point Nepean to private interest be possible?
Dear Joan,
I noted that you appeared on a television program about Nepean conservation.
45 I have just published a book on CD;
(Politics & Legal issues);
INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA,

p 333 9-3-2009
p334
Dictatorship & deaths by stealth. Preliminary book issue on CD.
In it, I set issues as to Commonwealth versus State rights.
5 With Point Nepean, I understood, it became Commonwealth Property due to the Federation! This
being so, then any land that was as such handed over became subject to Commonwealth law and
no longer State law.
Further, any land acquired by the Commonwealth after Federation, but with the consent of the
State also would attract Commonwealth law. However, any land acquired by the Commonwealth
10 compulsory, then State laws remain relevant.
I never studies history at any School in Australia, neither is English my native language, but as I
set out in my book on CD, the Constitution provides certain legislative powers to the
Commonwealth. Where there is no provision in the Constitution, then simply the Commonwealth
15 has none.
When we therefore look upon the Commonwealth Property, it is and remain Commonwealth
property until it is sold back to the State government.
20 The Commonwealth can only apply commonwealth law upon any parcel of land as provided in
the Constitution unless it provides for a local government (such as in the Northern Territory and
ACT).
As such, I can’t see how the Commonwealth could possible sell the land to any private citizen, as
the Commonwealth could not subdivide the land and maintain a Department of planning, etc,
25 unless it establish first a local Government for Point Nepean As like the NT and ACT).
State laws have absolutely no value on Commonwealth owned property (other then
Commonwealth compulsory acquired properties)
30 As such, it appears to me, that the Commonwealth can do some of the following;
1. It sells the property back to the State Government, and so the property revert back to be
governed by State laws.
2. It declares the area to be a Territory and establish a local law on it. (This then would
35 enable it to allow it to be a Quasi State)
3. It continue to use it as a Commonwealth property, for Commonwealth purposes.
Again, in my book on CD I set this out, how the framers of the Constitution argued it.
40 Item 2 above would be absurd, and so either item 1 or 3 are the alternatives.
I am not a lawyer and neither seek to give legal advise, but in my view, any private person (or
business) seeking to purchase a block of land from the area now arguable for sale would have
various difficulties!
45
1. The States can withhold any electricity and water supply upon the basis that the
property no longer is being used for Commonwealth purposes.
2. State laws do not apply in regard of building permits, transport, schools etc.
3. State Police has no authority to exercise any State laws.
p 334 9-3-2009
p335
4. People residing in commonwealth land are not State residents and would have no
powers to vote in any State Election.
5. Etc, etc, etc.
5 END QUOTE
.
It should be understood that any Telstra land, as it was prior to privatization, is and remains to be
Commonwealth property unless the Commonwealth reverted the land back to the States. Selling
it off by Teslstra as a public entity cannot circumvent the sovereign powers of the Crown in the
10 Commonwealth and a such, it doesn’t matter of Telstra were to have been authorization to sell of
land to private purchasers as it still remains technically Commonwealth property and will be so
until the land will revert back top the Crown in the State of Victoria. As such, until then no State
building regulations and laws can apply. No rates can be levied, etc.
.
15
QUOTE
WITHOUT PREJUDICE
Mr John Howard 23-1-2004
Parliament House Canberra,’
20 Fax 02 6273 4100 Ph; 02 6277 7700 Re; Children and other litigation.
Cc; The Hon Phillip Ruddock, Attorney-General

Fax 02 6273 4102 03/13049 MC03/237101
25 AND TO WHOM IT MAY CONCERN
Sir,
END QUOTE
AND
30 QUOTE
As I indicated previously, the Commonwealth of Australia had no constitutional powers to
sell Point Nepean to others other then back to the relevant State, and since then the
Commonwealth of Australia did not proceed with selling it.
END QUOTE
35 .
QUOTE
WITHOUT PREJUDICE
Mr Steve Bracks, Premier of Victoria 28-1-2004
Parliament House
40 Spring Street
Melbourne
END QUOTE
And
QUOTE
45 INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA,
In it, I set issues as to Commonwealth versus State rights. Chapter 33 Page 30 etc,
p 335 9-3-2009
p336
HANSARD 28-1-1898
Mr. OCONNOR (New South Wales).-I think the honorable member who has last
matters dealt with in this sub-section. I think that the seat of government of the
5 Commonwealth ought to be in quite a different position to such matters as the
recollect that there is no such power for the acquisition of land for the ordinary public
Dr. COCKBURN.-Might not the power be included in the general powers of sub-section
10 (37)?
And
Mr. OCONNOR.-No. The only powers that can be held to be given are those which
15 This also was in regard of Point Nepean, and subsequently Mr john Howard aborted the sale of
Point Nepean. Later when it was to lease Point Nepean, again I wrote to him as to the
constitutional issues governing such a lease and upon this Mr John Howard handed over point
Nepean.
I take it that golf courses on commonwealth land acquired for military purposes is
20 unconstitutional and so also any purported sale of the land to developers.
END QUOTE
.
The following book was published on 1 October 2002;
.
25 INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA
Dictatorship & deaths by stealth- Preliminary book edition on CD
ISBN 978-0-9580569-3-9 (ISBN 0-9580569-3-5 prior to 1-1-2007)
.
QUOTE 30-10-2002 CORRESPONDENCE
30 WITHOUT PREJUDICE
Ms Joan Kirner 30-10-2002
Former Premier of Victoria
Ph; 9651-6510
Fax; 9651-6515
Re: Would the sale of Point Nepean to private interest be possible?
40 Dear Joan,
Further to my letter dated 28-10-2002 I now provide you certain extracts of my
book relevant to the matter of the former Quarantine Station that was sold to the Commonwealth
with Federation, came into the possession of the Commonwealth in 1909
45 I have just published a book on CD;
(Politics & Legal issues);
p 336 9-3-2009
p337
INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA,

In it, I set issues as to Commonwealth versus State rights. Chapter 33 Page 30 etc,
5
HANSARD 28-1-1898
[start page 256]
Mr. BARTON.-No; we must give the Commonwealth the exclusive power to govern
10 territory which may become the seat of government. The Commonwealth may not
think fit to acquire or accept the surrender of any territory for the seat of
government; it may either follow the precedent of Canada, or it may acquire a piece
of territory for the seat of government and federalize that.
15 And
Mr. BARTON.-I think not. It applies more generally to acquisitions of territory,

which may become territories under that [start page 257] name, and, therefore, be
subject to that kind of legislation which precedes their admission as states. It does not
20 refer to a piece of territory for the seat of government, but to territories in the general
sense of the word. This sub-section applies only in the more limited sense of the term-to
land which may or may not be required for the seat of government. As to that, I think it is
desirable that there should be an exclusive power given at once in express terms, but what I
object to in the sub-section is that it imports words with reference to the mode of
25 acquisition which may, perchance, be thought to have an enacting effect, and do not find an
appropriate place in a clause of this kind.
And
30 Mr. BARTON.-It was thought advisable to leave that provision regarding territories
where it is-under the head of "New States"-because it refers particularly to that kind
of territory which afterwards develops into a new state.
And
35 Mr. OCONNOR (New South Wales).-I think the honorable member who has last
matters dealt with in this sub-section. I think that the seat of government of the
Commonwealth ought to be in quite a different position to such matters as the
40 recollect that there is no such power for the acquisition of land for the ordinary public
Dr. COCKBURN.-Might not the power be included in the general powers of sub-section
(37)?
And
45 Mr. OCONNOR.-No. The only powers that can be held to be given are those which
And
p 337 9-3-2009
p338
Mr. ISAACS.-
This sub-section does not say that the Federal Government is to have the power to take that
land. It assumes that the Federal Government has that power, but when the
Government does take land, compulsorily or by purchase, in a state as its possession,
5 it takes that land certainly by virtue of its sovereign power of eminent domain, that is,
the highest dominion. But it does not hold that land as sovereign, it holds the land as
proprietor. Now, where it holds the land merely as proprietor, without the consent of the
state being given to it, it is quite plain that the jurisdiction of the state should run, except, of
course, so as not to interfere with the performance of the governmental functions of the
10 Federal Government. But, as far as punishing crime is concerned, as far as any other
ordinary state supervision relates, not inconsistent with the performance of the
supreme functions of the Commonwealth, the ordinary state law will run. But the
United States have provided, and we, I understand, propose to provide here, that,
where the state consents to the Federal Government acquiring any land, either by
15 purchase or compulsorily, it thereby consents, and that consent is equivalent to the
admission of the right of the Federal Government to exercise exclusive jurisdiction in
respect to that particular portion of territory. And if the state does not choose to give
its consent, it says, in effect-"You may take this land, it is true, by virtue of your
sovereign right, for your sovereign powers, but you hold it as proprietor; you can
20 carry on your post-office, your court-house, or anything you please, but as regards
ordinary state laws outside those functions our state laws prevail. Where the state,
however, is asked by the Federal Government to consent to the excision of a piece of
land from its own territory for governmental purposes, and does consent, then the
exclusive right of the Federal Government to govern that portion of land attaches to
25 it, and this is what the sub-section we are now considering intends to enact.
It must therefore be very Clear that there are Territories which are in the process of becoming
States and so have “local law” including territory police force, and there is a Territory (within the
Territory) which is Parliament House that falls under Federal Territory government by Federal
30 Law not local law of the ACT and as such the Territory Police has no business in Parliament
House. Parliament House falling under Section 52 of the Constitution, not Section 122
Obviously, I expect at the very least an acknowledgement of having received my

correspondence. Just, so I know you did receive it!
35
Awaiting your response and cooperation, G. H. SCHOREL-HLAVKA
END QUOTE 30-10-2002 CORRESPONDENCE
.
Commonwealth of Australia Constitution Act 1900 (UK)
40 122 Government of territories
The Parliament may make laws for the government of any territory
surrendered by any State to and accepted by the Commonwealth,
or of any territory placed by the Queen under the authority of and
accepted by the Commonwealth, or otherwise acquired by the
45 Commonwealth, and may allow the representation of such territory
in either House of the Parliament to the extent and on the terms
which it thinks fit.
124 Formation of new States

50 A new State may be formed by separation of territory from a State,
but only with the consent of the Parliament thereof, and a new
p 338 9-3-2009
p339
State may be formed by the union of two or more States or parts of

States, but only with the consent of the Parliaments of th e States
affected.
5 When one consider Section 52 it has a different meaning;
52 Exclusive powers of the Parliament

The Parliament shall, subject to this Constitution, have exclusive
power to make laws for the peace, order, and good government of
10 the Commonwealth with respect to:
(i) the seat of government of the Commonwealth, and all places
acquired by the Commonwealth for public purposes;
(ii) matters relating to any department of the public service the
control of which is by this Constitution transferred to the
15 Executive Government of the Commonwealth;
(iii) other matters declared by this Constitution to be within the
exclusive power of the Parliament.
The Parliament clearly has specific exclusive powers in regard of the seat of the Government, not
20 being the private residence of people within the ACT!
Again, despite having exclusive powers for the “ peace, order and good government” it doesn’t
mean then that the government can set up a airstrip within the parliament House boundaries and
commence some commercial aviation company! Clearly, the powers do not provide for creating
25 something but merely to regulate by law what is done.
END QUOTE CHAPTER 33
http://www.glossary.com/reference.php?q=Fee
30 QUOTE
Fee simple is an estate At common law, an estate is the totality of the legal rights, interests,
entitlements and obligations attaching to property. In the context of wills and probate, it
refers to the totality of the property which the deceased owned or in which some interest
was held. It may also refer to an estate in land. estate in land in common law Common law
35 is a type of legal system in which the law is created and/or refined by courts on a case-by-
case basis. In resolving a legal dispute, an "ideal" common law court looks to precedent of
other courts. If a similar dispute has been resolved in the past, the court is bound to follow
the reasoning used in the prior decision (this principle is known as stare decisis). If,
however, the court finds that the current dispute is fundamentally distinct from all previous
40 cases, it will resolve the matter itself, with reference ...common law. It is the most common
way real estate Real estate or immovable property is a legal term (in some jurisdictions)
that encompasses land along with anything permanently affixed to the land, such as
buildings. Real estate (immovable property) is often considered synonymous with real
property (also sometimes called realty), in contrast with personal property (also sometimes
45 called chattel or personalty). However, for technical purposes, some people prefer to
distinguish real estate, referring to the land and fixtures themselves, from real property,
referring to ...real estate is owned in common law countries, and is ordinarily the most
complete ownership interest that can be had in real property Real property is a legal term
encompassing real estate and ownership interests in real estate (immovable property). It is a
50 type of property differentiated from personal property. This article discusses the ownership
of land using the interpretation of real property as a legal term used in Anglo-American
p 339 9-3-2009
p340
common law jurisdictions. ...real property short of allodial title Allodial title is a concept in
some systems of property law. It describes a situation where real property (land, buildings
and fixtures) is owned free and clear of any encumbrances, including liens, mortgages and
tax obligations. Allodial title is inalienable, in that it cannot be taken by any operation of
5 law for any reason whatsoever. In common legal use, allodial title is used to distinguish
absolute ownership of land by individuals from feudal ownership, where property
ownership is dependent on relationship to ...allodial title, which is often reserved for
governments. Fee simple ownership represents absolute ownership of real property but it is
limited by the four basic government powers of taxation A tax is a financial charge or other
10 levy imposed on an individual or a legal entity by a state or a functional equivalent of a
state (for example, tribes, secessionist movements or revolutionary movements). Taxes
could also be imposed by a subnational entity. Taxes consist of direct tax or indirect tax,
and may be paid in money or as corvée labor. A tax may be defined as a "pecuniary burden
laid upon individuals or property to support the government [ . . .] a payment exacted by
15 legislative authority. "Black's ...taxation, eminent domain Eminent domain (U.S.),
compulsory purchase (United Kingdom, New Zealand, Ireland), resumption/compulsory
acquisition (Australia) or expropriation (Canada, South Africa) in common law legal
systems is the inherent power of the state to seize a citizen's private property, ...eminent
domain, police power Police power is the capacity of a state to regulate behaviours and
20 enforce order within its territory, often framed in terms of public welfare, security,
morality, and safety. Police power is legally considered an inherent power, limited only by
prohibitions specified ...police power, and escheat Escheat is a common law doctrine that
operates to ensure that property is not left in limbo and ownerless. It originally referred to a
number of situations where a legal interest in land was destroyed by operation of law, so
25 that the ownership of the land reverted to the immediately superior feudal lord. Most
common-law jurisdictions ...escheat and could also be limited by certain encumbrances An
'encumbrance is a legal term of art for anything that affects or limits the title of a property,
such as mortgages, leases, easements, liens, or restrictions. Also, those considered as
potentially making the title defeasible are also encumbrances. For example, charging
30 orders, building orders and structure alteration. In Hong Kong, there is statutory definition
of "encumbrance". In Conveyancing ...encumbrances or a condition in the deed A deed is a
legal instrument used to grant a right. The deed is best known as the method of transferring
title to real estate from one person to another, often using a description of its "metes and
bounds." However, by the general definition, powers of attorney, commissions, patents, and
35 even diplomas conferring academic degrees are also deeds. Historically under common
law, for an instrument to be a valid deed it needed five things: * It must indicate that the
instrument itself conveys some privilege ...deed. How ownership is limited by these
government powers often involves the shift from allodial title Allodial title is a concept in
some systems of property law. It describes a situation where real property (land, buildings
40 and fixtures) is owned free and clear of any encumbrances, including liens, mortgages and
tax obligations. Allodial title is inalienable, in that it cannot be taken by any operation of
law for any reason whatsoever. In common legal use, allodial title is used to distinguish
absolute ownership of land by individuals from feudal ownership, where property
ownership is dependent on relationship to ...allodial title to fee simple such as when uniting
45 with other property owners acceding to property restrictions or municipal regulation.
END QUOTE
.
http://loveforlife.com.au/node/4542
QUOTE
50
p 340 9-3-2009
p341
A Fee Simple is the most extensive in quantum, and the most absolute in respect to the rights
which it confers, of all estates (in fee simple) known to the law. It confers, and since the
beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in
respect to, the land, every act of ownership which can enter into imagination, including the right
5 to commit unlimited waste; and, for all practical purposes of ownership, it differs from the
absolute dominion of chattel, in nothing except the physical indestructibility of its subject.
Besides these rights of ownership, a fee simple at the present day confers an absolute right, both
of alienation inter vivos and of devise by will.
10 Webster`s Legal Dictionary, 1889, defines Fee Title as:
Fee Simple is a Contractual Agreement between the present owner and the previous owner,
involving neither a third nor other parties. Fee Simple permits an owner to do with his property
as he might wish. It is the highest form of land ownership available. Third party interference is
15 prohibited to a property held in “Fee Simple Title.”
Fee Simple absolute is historically and legally the most complete form of property ownership. If
property rights can be thought of as a bundle of things, then Fee Simple absolute (FSA) owner
holds the full bundle of rights.
20
This bundle of rights includes the following:
- Give the property away.

- Sell the property for a price.
25 - Transfer the property with a will. With FSA, the property can stay in the family
forever.
- Use the land for what ever purpose the owner see fit.
- Exclusive possession of the land.
- And where there is no will, the fee simple passes automatically to one`s heirs.
30 - As the Crown ( Governments)has no longer any invested interest in the land, then this
means that the Crown etc. cannot charge fees, licences, fines or any charges to the
land that is held in Fee Simple.
As you can see, the underlining purpose of Fee Simple is to keep the land in the family
35 forever.
Since this property is held in Fee Simple Title, and no third party can become involved and we
have never entered into an agreement with the Crown
( Governments or Council) then we cannot involuntarily incur a debt against the property.
40
END QUOTE
.
As to the issue of STALKING:
Nadarajamoorthy v Moreton [2003] VSC 283 (4 August 2003)
45 .
DPP v Field [2001] VSC 472 (29 November 2001).doc
.
Berlyn v Brouskos [2002] VSC 377 (9 September 2002)
p 341 9-3-2009
p342
QUOTE Hansard Victorian Parliament 18-11-21994

HANSARD 16-11-94
Mr COLE (Melbourne) –
5
In introducing stalking legislation, we must ask ourselves how profound a message has to
be before it is considered a threat. Does somebody have to be subjected to physical harm or
only feel threatened for the legislation to come into effect? I will refer later to standard of
proof and other subjective and objective tests that are important in the consideration
10 of what constitutes stalking. I will also refer to a letter from the North Melbourne Legal
Service, which I think many people would have received.
And
15 The amendment I will move in the committee stage relates to the extension of the concept
of a legitimate activity that does not constitute stalking. I will seek to add a paragraph (f) to
proposed section 21A(4), which deals with stalking. The amendment concerns those
involved in industrial, political or other public disputes or issues carried on in the public
interest. I shall talk about that later. I believe the foreshadowed amendment will fill a gap.
20 It also mirrors the Queensland provision dealing with the matter.
And
The difficulty with telephone calls is if a person makes innumerable telephone calls,
it is a question of whether the offender understands the situation. It gets back to an
25 objective test that could be extremely difficult for the court to interpret. If we state
our views on the matter, which I believe will be unanimous, it should be able to
make an interpretation.
And
Page 2 of a letter from the North Melbourne Legal Service refers to the definition in
30 proposed section 21A. It states:
The definition of the physical aspect of stalking given in paragraph (2) of
section 21A covers an extremely wide range of activities in which people
engage in every day life, and which generally would have no criminal element,
for example, walking behind someone along the street, making telephone calls
35 ... If these things constitute stalking, the criminality of such behaviours must be
explained and needs to be understood by the public.
There is no truer statement than that. Walking behind a person and making telephone calls,
of themselves, are not offences. The difficulty is where to place the dividing line. Again we
40 must have a subjective test to say at what point it becomes a moderate form of
annoyance, and then harassment. The next step is when it actually becomes a case of a
person stalking another person and causing that person pain. It will be very difficult.
Although I do not wish to flag this in a preventative fashion, we will be talking about the
extreme examples of stalking.
45
I do not mean by that a person walking down the street with an axe in his hand who
is about to kill another person -- and that is a possibility -- but about extremities
when a person is obsessed, will not back off, will not get the message and
p 342 9-3-2009
p343
consistently carries out certain behaviour causing concern, dissension, and upset for
the individual receiving the attention.
The word 'attention' is a good generic term for the matters laid out by the North
Melbourne Legal Service. If you are subjected to a high level of attention by a
5 particular person it can cause you upset. For instance, I am the shadow
Attorney-General who shadows the Attorney-General; it can cause upset -- I
use that analogy deliberately. It is not a crime. However, if we take the situation
of a person shadowing another person that action may not be a problem until it
reaches the point of annoyance or the other person is suffering illness or is in
10 danger. It is the timing that is the difficult question, and that is a matter the North
Melbourne Legal Service highlighted.
It is important that it experienced a case of alleged stalking -- in fact it was not

stalking because we did not have the legislation in place. However, the principle is
still the same.
15 The North Melbourne Legal Service refers to proposed section 21A(2), which deals
with exemption. It states:
... we note that this would appear to go directly to the essence of the
general interpretation of stalking where the offender's intention is to cause
harm.
20 I agree with that proposition. The letter continues:
As this is a subjective test with respect to the offender's state of mind, which
must be proved by the prosecution with clear evidence, we acknowledge that
this part as drafted may give adequate protection to an alleged offender.
The crucial point is determining the subjective intention of the individual carrying
25 out this action. We can go one step further -- and this is where I diverge from the
legal service's view and that of some journal articles:
However, we note that there is no requirement that injury to the victim be
proved, and conclude that this omission has been made on the basis of
injury in the form of induced fear is considered irrelevant to this part.
30 My interpretation, and I defer to the Attorney-General with her experience as a
parliamentary draftsperson, is that I do not read it that way. You have to prove
fear. You may not have to prove injury but you have to prove fear.
Mrs Wade interjected.
Mr COLE -- We are; good! It is a question of interpretation, which will be difficult.

35 I do not know whether you can actually apply an objective standard to whether a
person should have been frightened or not in the circumstances.
If they say they are and there is enough evidence, then of course we have the fall-
back position -- and I say that reservedly. For the purposes of this provision an
offender also has the intention to cause physical or mental harm. Proposed section
40 21A(3) states:
... or ... that the offender ought to have understood ...
The crucial point is that the person was scared and the offender should have
understood. That of course brings in the objective test.
p 343 9-3-2009
p344
The North Melbourne Legal Service takes even further the objective test relating
to if the offender knows by saying:
If this part is in fact aimed at addressing recklessness on the part of an offender,
this should be stated.
5 I do not believe it is to do with recklessness; recklessness would be almost a defence
to an act of stalking. Doing something which was causing harm which was
indifferent or reckless is different to having a specific, subjective intention to cause
a problem.
What this legislation is trying to say -- and the application of this objectiveness
10 makes this a very important provision -- is that it is not about recklessness; it is
about whether a reasonable person would have known that their actions would
have caused the other person to fear.
For instance, if you consistently make myriad phone calls at 7, 8 and 9 o'clock in the
morning and at night to a person's home -- you may not even be making threats; you
15 may just not be leaving the person alone -- and that person is frightened, that may
constitute stalking.
I may be drawing a pretty long bow by saying that, but it is a major issue with phone
calls. You can have your phone number changed to a silent number, and all sorts of
things like that, but there is still the issue of whether a reasonable person should
20 have known when he or she rang that that would cause fear in the mind of the
person they were ringing. In my view it has nothing to do with recklessness;
although we could see cases where people could be reckless.
The North Melbourne Legal Service submission was very good on that point. To an
extent the experience of the service has dictated its view on the whole question of
25 stalking legislation, but, nonetheless, the submission is very good.
I am sure -- as has been pointed out to me -- the issue of whether this particular
provision needs to be expanded to make allowance for telephone calls has been
suggested by the Attorney-General because I am pleased to hear that that will occur.
The legislation also overcomes the hiatus between domestic violence and non-
30 domestic matters. For a long time the whole question of harassment of partners or
ex-partners was a major issue of domestic violence and family law. However, we
have never had an effective equivalent charge for consistent harassment -- I
think the only alternative was a charge for breach of the peace or assault or
some other offence -- which would prevent a person from being continually
35 harassed or bothered by someone that person did not want much to do with.
END QUOTE Hansard Victorian Parliament 18-11-1994
And
QUOTE
40 And
Just to hark back to proposed section 21A(3), I believe that in the case of my
electorate officer what the offender ought to have understood is the objective test.
He certainly would have failed the subjective test, but the objective test is a bit
dicey, too, except for the use of listening devices. That again is a substantial cultural
p 344 9-3-2009
p345
problem amongst men. He may well say, 'All right, I used the listening devices but
prior to that what was I doing?'.
'You were phoning maybe ten times every day'. It is still a cultural thing that it is all
right for men to do that, or in a relationship for men or women to keep going at it for
5 whatever reason.
The objective test is a vexed one; it is the one that we will have to be most
concerned and conscious about. In respect to stalking, there is a very good article
in the Law Institute Journal which I have not read for a while. One of the last times I
read it I opened it up and there was a great big photo of Victor Perton on one side
10 and James Guest on the other with his dog Rumpole and an article about not
wanting the Law Reform Committee to become a political animal, which it never
would be. Since then I have been shocked into submission and do not read the
journal as much as I should. The article by Richard Evans points out that:
The psychiatric literature recognised at least four different categories of stalker ...
15
Erotomania. The stalker suffers a disillusional disorder, and truly believes
him or herself to be loved by an individual who might not even know of his or
her existence.
I hope nobody here suffers from that disease -- when you hear about an illness you
20 think you have got it!
Obsessive love. The stalker feels intense love for another individual who he or
she knows does not reciprocate these feelings.
The next one is:
Morbid jealousy. The former intimate stalker, such as a former lover or
25 spouse.
The story I have just related fits into that category, and I suggest it would probably
be the most easily recognisable if not the most common. Then there is:
Sociopathy. The sociopathic stalker might in lay terms be known as 'bad,'
whereas the other three are 'mad'.
30 I think we have been through this debate -- we have had the odd hour here talking
about Garry David -- as to whether mental illness does not include an antisocial
personality disorder. That was an interesting debate.
That was an interesting debate, and it was a tragic case, too.
These types of people are completely different to others; they do not appear to
35 be seeking any relationship with the victim, they merely seek individuals who
fit their assault criteria. I suggest the latter type are more dangerous.
If we take it that we can confine it to four categories, I would suggest that the
morbid jealousy type is probably one of the more difficult ones in establishing the
stalking link. Once a person is attracted to somebody he keeps going in a
40 relationship and it goes down a certain path, then harassment and so forth occur.
That is the most difficult one.
Also with respect to sociopathy we will have the problem of trying to

distinguish between the bad and the mad. I did not want to use those terms
p 345 9-3-2009
p346
because I believe they are inappropriate, but there is a need to remember that
these provisions must protect people who are mentally ill. That is the point I am
trying to make.
It seems to me that they do on both criteria, the subjective and the objective
5 test under proposed section 21A(3).
I think that is a major problem. With respect to deinstitutionalisation, there will be
many problems involving people who have been moved out into the community. Of
course, I support deinstitutionalisation and I believe we should attempt to address
those issues. There is a significant problem with the possibility and probability that
10 there are mentally ill people who may stalk and may be attracted to another person,
in which case we can look to the proposed section to which I referred.
Stalking has a certain pathology attached to it, which means that we must
distinguish the bad from those with mental illness. I think that can be covered by
the bill. The dividing line between those two categories needs to be clearly
15 understood.
That will not be easy, but at least with psychiatric assistance I think we will be
able to do that and get somewhere.
And
It is just a fact that there is a substantial increase in the number of people refused
20 bail when a nice new prison is built. I use that only as an example of the dangers and
difficulties of interfering with and changing the nature of granting bail.
In this case the onus is reversed, so the defendant, or the accused, has to prove that
he or she should be given bail. When I first read that provision I thought we should
not do that. However, we are talking about stalking, which is a major crime and
25 which, by definition, will attract people who reoffend -- that is the important point.
Unless I am very much In some cases it may involve the sociopathic or even
morbid jealousy or obsessive love, which means we are dealing with matters of
the heart. mistaken, I understand that some 40 per cent of all murders relate to
domestic matters, so this is a very serious part of the problem and of the equation
30 itself.
Therefore, I support this reversal of onus so that the defendant has to prove that he
or she will not violate or breach bail. My preference is always to let people out on
bail unless there are very strong reasons for keeping them in gaol.
Dr Dean -- If they have had a history of violence.
35 Mr COLE -- I think the honourable member for Berwick is spot on: they have to
have a proven history of violence. However, almost by definition, if they are before
the court for this type of offence it means they have had a period of continually
harassing or stalking somebody, and therefore they should have to prove that they
will not do it while on bail.
40 Mr Maclellan interjected.
Mr COLE -- Yes, alleged. I am sorry, I have put them in gaol already!

Mr Maclellan interjected.
p 346 9-3-2009
p347
Mr COLE -- As I said before, particularly when it is possible to keep people in gaol for at
least 18 months and maybe 2 or 3 years, we have to be very conscious of what we are doing
with bail provisions. People are innocent until proven guilty, and it is not desirable to lock
them all up until they are proven innocent.
5 END QUOTE
And
QUOTE
If an intervention order is made unnecessarily or inappropriately, it is more than
likely that the person against whom the order is made will breach it because he may
10 not know that the order has been made or that he is doing anything wrong.
END QUOTE
And
QUOTE Dr DEAN (Berwick) –
It is useful to spend a little time putting the legislation in context. The legislation is
15 not just the normal criminal law legislation that penalises someone for stealing or
assaulting. It has another aspect: that is, it involves domestic relations and
relationships between people. It is a tentative area for legislation, and it has to be
handled with care.
END QUOTE
20 And
QUOTE
Some people are mentally handicapped and follow others in the street, not for
any sinister reason but because that is what they do. You have to legislate to
ensure that people who engage in a certain activity, which must be described in
25 legislation, are able to be distinguished from those who are engaged in a
criminal activity and who ought to be penalised.
That has been done in an extremely clever fashion in the legislation by simply
outlining a number of activities for which an individual may be charged with
stalking -- if it is done with the intention of causing physical or mental harm to
30 the victim or arousing apprehension or fear in the victim. You say this: if you
engage in activity that amounts to stalking you will not be convicted unless you
have an intention to create mental harm to or fear in the victim. It is extremely
difficult to determine how to draw that distinction. The honourable member for
Melbourne referred to the reasonable-man test.
35 Mr Cole interjected.
Dr DEAN -- Or the reasonable-person test -- well done to the honourable member

for Melbourne. If he reads the words of this legislation closely he will see that there
is a twist on the reasonable-person test which he did not pick up and which is very
important.
40 This legislation does not use the normal words in relation to whether a reasonable
person would have that intention That has to be in because you cannot prove that
a person knew that he would create harm. All that person needs to say is, 'I did not
know', and therefore you to have to revert to some subjective test to find out
whether he really did or did not. By simply saying that he or she will be caught if he
45 or she knew it would cause harm is not enough.
p 347 9-3-2009
p348
If you use the reasonable-person test, however, you will catch the people --
particularly the mentally handicapped people -- who, on an objective test,
would fall into the net but who you do not wish to catch. The clever words that
have been used are that the offender will be caught if he knows, or in all those
5 particular circumstances he ought to have understood, that the course of
conduct in which he engaged would be of a kind likely to cause harm.
It is important that we understand the use of the word 'understood' and the use of
the words 'in all those particular circumstances'. The legislation makes it quite
clear that there are a group of people who should not be caught.
10 The gates through which you have to pass before this legislation is triggered are so
important when introducing criminal sanction for what may be domestic behaviour.
I commend the Attorney-General on using a form of words which will enable that to
happen. I also congratulate her for using another device which picks up the
intervention order in the Crimes (Family Violence) Act that enables a judge or a
15 magistrate to say in some circumstances, 'This is not a person I want to put in gaol
as a consequence of this offence. This is a person that I want to simply prevent or
stop carrying out this course of conduct or give a warning to'. Under this legislation
the judge or magistrate can say, 'I will not convict you. You will be given a
bond, and I will make use of the intervention order'.
20 He or she may then shape an order in any way he or she wishes to prevent that
person continuing that conduct. It may be that the offender is not to come
within 500 yards of a house, or it may be that the offender is not to come within
a certain distance of a person.
The method and manner of these orders are varied and detailed and there is no limit
25 on what order can be made. Again that is a clever device to strike the balance
between the domestic situation that we will face time and time again and the
criminal situation.
I make the point that because this legislation is crafted so carefully and in a way that
I think is different and better than that of the other states, those who will use it will
30 be required to implement it in the spirit intended.
Unless the police and the courts handle this legislation in the way set out by the
minister's second-reading speech and recommended by other speeches --
maybe even mine will be read on occasions -- I believe the spirit of this
legislation will be improperly used.
35 All the important decisions about whether a person will be the subject of an
intervention order, will be convicted or will be simply passed over and whether the
authorities will be notified that a particular person who ought not be is on the streets
will need to be made at the police level.
Our police force is up to that, but its training must be such that it will be
40 capable of making those decisions. That flexibility must be used, and if used in
the proper way the bill has all the ingredients of protecting people who are
stalked.
END QUOTE
p 348 9-3-2009
p349
Since the Victorian legislation was introduced in 1994 then afterwards in 2003 further legislation
was introduced as to make it more comprehensively to catch in it also non-family relationships,
etc.
.
5 Hon. C. A. STRONG (Higinbotham) 2 December 2003 COUNCIL
In outlining why the opposition will oppose this bill, the house should bear in mind
that we have seen from this government and from other governments a knee-jerk
reaction to any form of criticism where people make allegations against other
members of the public.
10 The ability to speak one's mind is fundamental to free speech that we in the
democratic nations have fought long and hard to preserve. Free speech, of course,
carries responsibilities with it, including the responsibility that we have a relatively
well-educated population that will not be hoodwinked by slanders and things said by
people against one another.
15 It also requires, as we do have, laws that ensure that people who are slandered
have recourse to put the record straight. Nevertheless, the ability of free speech is a
mainspring of our society; it is the mainspring of the safety, diversification and
richness of our society that people are not inhibited in what they are able to say,
what they are able to think and what they are able to write.
20 As I said, there are some reasons in law where if people defame or slander
somebody, there is appropriate action.
Once again this bill goes too far in seeking to reduce free speech - unnecessarily in
our view, and in an awkward and intrusive way. I will deal not in the detail but once
again in the broad about some of the things the bill does. It adds a new offence of
25 cyberstalking. I will touch on the detail later, but basically cyberstalking is about
saying things about a person in writing whether it be by letter, by fax or over the
Internet. It is about stalking somebody with the written word. That is a very
significant redefinition of stalking. As we currently understand it, stalking is more
30 Page 1993
of a physical act where one follows a person. To stalk in the normal context that we
understand it is to follow somebody around and to put them under duress by our
physical presence and our physical relationship.
35 As we all understand stalking, and as it has been defined in the past, it is not about
writing to somebody, emailing them or contacting them with some form of written
word. Traditionally that has been covered under the law dealing with slander, which
is defamation et cetera. This is a new definition of stalking, which is about the
written word. The opposition believes that is quite clearly a major change that will
40 have a significant impact on free speech, because stalking, as I have said, has
always been about a physical presence.
Looking at the general, broad concepts, this bill goes to the effect of stalking.
In the traditional sense stalking takes place when one individual or group follows a
person around and by their physical presence - by being there - distresses and
45 causes duress to an individual. In its traditional form stalking requires the victim of
that stalking to have felt the effect. This bill removes that requirement. Clause 4 of
the bill amends section 21A(2) of the Crimes Act to omit the requirement for
somebody to have actually felt the effect of stalking. It is sufficient that the stalker
understood or believed that some distress could be caused to a victim. There is no
50 requirement for the victim to be caused any distress at all.
p 349 9-3-2009
p350
A person could be happily cyberstalking somebody who would never know, would
never feel any distress, would never feel worried, yet that person would be
committing an offence. So there are those two very significant philosophical shifts:
stalking is now akin to slander, and defamation can occur through stalking with
5 words rather than stalking as a physical presence.
To be guilty of an offence of stalking there is no requirement that the victim of the

stalking ever knew they were being stalked or ever felt under any duress.
They are significant and totally unnecessary changes. Redefining 'stalking' as the
written word if there is no effect on the victim of such action is a novel concept and,
10 as such, is a totally unnecessary restriction on free speech in the mainspring of the
safety of our society.
Again, I like to stress upon the following;
That is a very significant redefinition of stalking. As we currently

understand it, stalking is more of a physical act where one follows
15 a person. To stalk in the normal context that we understand it is to
follow somebody around and to put them under duress by our
physical presence and our physical relationship.
.
CRIMES ACT 1958

20
Act No. 6231/1958
Reprint No. 16
- SECT 21A
25 Stalking
21A. Stalking
(1) A person must not stalk another person.

30
Penalty: Level 5 imprisonment (10 years maximum).
(2) A person (the offender) stalks another person (the victim) if the offender engages in
a course of conduct which includes any of the following-
35
(a) following the victim or any other person;
(b) telephoning, sending electronic messages to, or otherwise contacting, the victim or any
other person;
40
(c) entering or loitering outside or near the victim's or any other person's place of residence or
of business or any other place frequented by the victim or the other person;
p 350 9-3-2009
p351
(d) interfering with property in the victim's or any other person's possession (whether or not
the offender has an interest in the property);
5 (e) giving offensive material to the victim or any other person or leaving it where it will be
found by, given to or brought to the attention of, the victim or the other person;
(f) keeping the victim or any other person under surveillance;
10 (g) acting in any other way that could reasonably be expected to arouse apprehension or fear
in the victim for his or her own safety or that of any other person-with the intention of causing
physical or mental harm to the victim or of arousing apprehension or fear in the victim for his
or her own safety or that of any other person and the course of conduct engaged in actually
did have that result.
15
(3) For the purposes of this section an offender also has the intention to cause physical
or mental harm to the victim or to arouse apprehension or fear in the victim for his or her
own safety or that of any other person if that offender knows, or in all the particular
circumstances that offender ought to have understood, that engaging in a course of conduct
20 of that kind would be likely to cause such harm or arouse such apprehension or fear and it
actually did have that result.
Loiter
25 To remain in, about or near vicinity of a restricted place without any apparent reason or
purpose as one might be expected to have in the circumstances. For example , in Milne v.
Mutch (1927) V.L.R. 190, the defendant boarded a crowded tram and during the journey, in
an attempt to steal from some of the male passengers, the defendant thrusted an open
newspaper under the chin of a number of passengers, rubbed an open hand over their vest
30 pockets and placed his hand under the passengers’ coats near the lapel and in line with the
upper vest and inside coat pockets. It was held the defendant was loitering.
p 351 9-3-2009
p352
In this case, the act was clearly one of unlawful conduct, but as was indicated in Samuels v.
Stokes (1973) 130 CLR 490 not all loitering is unlawful.
5 The Chief Justice said :
"Apart from the question of the Public Assemblies Act I

think there was evidence on which the learned special
magistrate could conclude as he did that there was no apparent and
10 lawful purpose for her remaining in the intersection after the
forward movement of the march had ceased and the marchers
remained in possession of the intersection. As I have said,
I think she had an apparent purpose for so lingering, but not
a lawful one in the absence of some special justification. I
15 say that because I think that there is evidence that in
remaining where she was, despite injunctions to move on, she
was both appreciably and unreasonably diminishing the space
available for passing and repassing, and aiding and abetting
others to do the same. She was, I think, proving her unity
20 with what the demonstrators in Hyde Street as a whole were
doing in remaining there, though not, I repeat, in indulging
in acts of violence or disorder." (1973) 5 SASR, at pp 32-33 . (at p496)
.
25 PROSTITUTION CONTROL ACT 1994 - SECT 13

Street prostitution (offences by prostitutes)
(1) A person must not for the purpose of prostitution intentionally or
recklessly solicit or accost any person or loiter in or near-
.
30 PROSTITUTION CONTROL ACT 1994 - SECT 12
(1) A person must not for the purpose of, or with the intention of, inviting
or soliciting any person to prostitute himself or herself with him or her or
another person or of being accosted by or on behalf of a prostitute,
intentionally or recklessly loiter in or near-
35 .
TRANSPORT (ROADS AND PROPERTY) REGULATIONS 1993 - SECT 34
34. Loitering, nuisances etc.
40 A person must not-
(a) whether or not in charge of or in a vehicle loiter on the

West Gate Bridge; or
.
45 CHILDREN AND YOUNG PERSONS ACT 1989 - SECT 266

266. Offences in relation to community service etc.
.
A person must not without lawful authority or excuse-
p 352 9-3-2009
p353
.
(a) enter any place in which a child has been placed under an
interim accommodation order, a custody to third party order or a
supervised custody order or by the Secretary under section 124; or
5 .
(d) lurk or loiter about any place described in paragraph (a) for any of
the purposes mentioned in this section.
.
CHILDREN AND YOUNG PERSONS ACT 1989 - SECT 270
10 .
(1) A person must not without lawful authority or excuse-
(f) lurk or loiter about a remand centre, youth residential centre,

youth training centre or youth supervision unit for any of the
15 purposes mentioned in this sub-section.
.
PORT OF MELBOURNE AUTHORITY (NO. 2) REGULATIONS 1988 - SECT 701

PART 7 SPECIFIC OFFENCES
.
20 General provisions
.
701. General provisions
.
A person must not-
25 .
(o) loiter in or near any shed or under or upon any wharf or lounge or
sleep among the cargo placed in any shed or upon any wharf;
.
The issue of loitering may be considered where despite that Moorabool City Council was
30 informed by Mr Francis James Colosimo to be denied access to the property they nevertheless
turned up with police. It must be deemed a very disturbing issue that Moorabool City Council
rather then to respect the rights of a FEE SIMPLE property holder somehow seek to waste also
the time of the police to somehow try to force themselves upon a property holder to give in. As
such the police was basically used as a form of intimidation.
35 .
The issue therefore is if the conduct of Moorabool Shire Council since having issued their
infringement notification could be deemed reasonable and proper or that its own conduct was
basically out of wack, out of reasonable conduct, and its refusal to communicate upon Mr
Francis James Colosimo’s correspondence showed to be one of being high handed and ignoring
40 they are to represent all ratepayers, including Mr Francis James Colosimo, and one unduly
causing cost to ratepayers in general as well as to embark upon a line of confrontation rather then
of “CONSIDERATION” and “COMMUNICATION”. This seems to be more the modus
operandi of those who hold in their view all the power and then place themselves in a mighty
powerful position that they can employ lawyers not at their own cost but that at cost of ratepayers
45 no matter how insensitive and unreasonable their own conduct in the process might be.
It is a danger to all law abiding citizens if this kind of conduct is tolerated and more over is
condoned. Worse, their victim (Mr Francis James Colosimo) then is subjected to orders under
the Guardian and Administration Act 1986 as to make out he is mentally deficient in some
p 353 9-3-2009
p354
manner and all this because Mr Francis James Colosimo does no more but to pursue what he
deems is his constitutional and other rights, including FEE SIMPLE rights and entitlements.
.
It is not that Mr Francis James Colosimo went around attacking anyone as some mad man. It is
5 not that Mr Francis James Colosimo went about hunting down officials of Moorabool Shire
Council, rather it was that the official of Moorabool Shire Council were persistent to STALK
Mr Francis James Colosimo by their conduct and litigation and even involved the police for
this to pursue their conduct of intimidation upon Mr Francis James Colosimo.
.if every person who pursues DEMOCRACY and the rights of DECMOCRACY to be applied
10 were to be ending up under the Guardianship and Administration Act 1986 orders then
numerous Australians would be ending up as such, including those who may be exercising the
guardianship.
Nothing can be more absurd then to place a person under Guardianship and the Administration
Act 1986 provisions in regard of a shed allegedly being without a permit build and left standing.
15 .
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann;
Spi [1999] HCA 27 (17 June 1999)
20 made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel
.
25 "Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
30 valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is
invalid ab initio."
.
35 Clearly the Court, including the High Court of Australia held that a person is entitled to disregard
court orders that are unconstitutional.
Mr Francis James Colosimos case is that there were constitutional and other legal issues to be
dealt with and those have never appropriately been dealt with and hence any order made simply
are to be ignored because unless and until the constitutional issues are appropriately dealt with by
40 judicial decision no jurisdiction was ever invoked. It is then a bit rich to make out that Mr
Francis James Colosimo precisely acting as the High Court of Australia made clear that a party
could do when facing unconstitutional courts orders he then is subjected to orders under the
Guardian and Administrative Act 1986. This is not just over the top, it is a total absurdity and
abuse of Court/Tribunal powers!
45 .
As was made clear, time and again, by Mr Francis James Colosimo he was advised by Mr Errol
Higgins he was advised by lawyer Kate Morris (for Moorabool Shire Council) that the case for
28 May 2007 was adjourned and as such Mr Francis James Colosimo advised his witnesses
that this was so.
p 354 9-3-2009
p355
It is not relevant if Kate Morris then may have contacted Mr Francis James Colosimo on the
day of the hearing on 28 May 2007 about a hearing being in progress as she was dealing with
what might be termed an unlettered person (without legal qualifications) and as she was advised
by Mr Francis James Colosimo that he understood from Mr. Errol Higgins the case was
5 adjourned and he had for this cancelled his witnesses to attend, then at least Kate Morris should
have contacted Mr Errol Higgins to discover what was going on.
.
It was Mr Errol Higgins who clearly at the time was involved with the case and who as
Law lecturer, LLB, LLM, BA(Hon), MA(Hon.) obviously was held in high esteem by Mr
10 Francis James Colosimo and to Mr Francis James Colosimo was a person who
obviously knew what he was talking about. Therefore Mr Francis James Colosimo was
well entitled to rely upon this advice of Mr Errol Higgins. The courts have for long held
that where a party is absent due to misconceptions that was not by his/her own culpable
conduct but that upon that of a lawyer then such hearing is deemed to have been EX
15 PARTE and the absent party is entitled to a rehearing DE NOVO of the matter with the
original hearing to be set aside.
No judicial officer in his/her right mind can expect a party to turn up for a hearing totally
unprepared and without witnesses. Witnesses have more to do then just attending to some
hearing and often have to make great sacrifices to be able to get time of to attend to a
20 hearing and as such wehere they were advised that the hearing was postponed to the next
day then no Court/Tribunal with common sense would have contemplated to proceed with a
hearing in those circumstances.
If the Court/Tribunal was however not advised about this by lawyer Kate Morris then Mr
Francis James Colosimo hold this was gross misconduct on the part of this lawyer and it
25 is she who should be facing charges of contempt in face of the Court/Tribunal for having
knowingly and deliberately concealed relevant details from the Court/Tribunal.
Lawyers are OFFICERS OF THE COURT and as such are bound to disclose all relevant
details to the Court!
.
30 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
35 duty to the court which is 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
40 produce all relevant authorities, even those that are against him. He must see that his
client discloses, 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
45 Again
QUOTE
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
50 facts. He must not knowingly conceal the truth.
p 355 9-3-2009
p356
END QUOTE
.
While the Court/Tribunal may refuse to provide transcripts to Mr Francis James Colosimo the
issue is that as it were EX PARTE proceedings it is no more but the duty of the Court to ensure
5 that the party that is absent of the proceedings is provided with a copy of the transcript as to be
able to check and verify what might have been stated before the Court/Tribunal.
.
Court/Tribunal members must understand they are not conducting some private matters but are
dealing with judicial matters that must be allowed to be scrutinised by the general public and that
10 JUSTICE MUST NOT ONLY BE DONE BUT BE SEEN DONE!
.
The courts/Tribunals are not above the law and neither must present themselves as to above it by
seeking to minimise a Defendant opportunity to access transcripts. In particular where these
proceedings were the basis into later orders under the Guardian and Administrative Act 1986,
15 then it is essential that the Court/Tribunal proves to have acted appropriately in the absenteeism
of the party concerned against whom orders were pronounced.
.
.
QUOTE Sir JOHN FORREST (Western Australia).-
“Because, as has been said before, it is [start page 357] necessary not only that the
beyond the possibility of suspicion; …”
25 END QUOTE
.
Mr Francis James Colosimo has every right to so to suspect, so to say, that the Court/Tribunal
and the lawyers of Moorabool Shire Council, so to say, went to bed together in the
circumstances prevailing.
30 It would be sheer and utter nonsense to expect a financial struggling person to be able to afford
paying for transcript just to discover what was stated in his absenteeism to pronounce a judicial
decision against him.
The Framers of the Constitution made clear that the Magna Carta principles were embedded in
the Constitution and the Imperial Acts Application Act 1980 (Vic) also include them and as such
35 it is beyond comprehension of any fair minded person why any Court/Tribunal seeks to so to say
hide the transcript as to create some kind of obstacle course for Mr Francis James Colosimo to
find out the truth.
.
Mr Francis James Colosimo made all along known about his constitutional rights and FEE
40 SIMPLE rights and the lawyers acting for Moorabool Shire Council were well aware of this.
They may have elected not to respond to Mr Francis James Colosimo but that is absolutely no
excuse not to raise this with the Court/Tribunal. As such, if the lawyers had made known that
there were constitutional issues raised by Mr Francis James Colosimo then the Court/Tribunal
member should have made clear that it cannot proceed in the absenteeism of the other party
45 unknown if it can invoke jurisdiction because where it concerns constitutional issues governing
the federal Constitution then appropriate procedures are in place before any matters as to alleged
breaches can be addressed.
.
In the marriage of Smith v Saywell (1980) Fam LR 6 245 at 258
p 356 9-3-2009
p357
"Where a case pending in a federal court other than the HIGH COURT or in a court of a
state or territory involves a matter arising under the Constitution involving its interpretation,
it is the duty of the court not to proceed in the cause unless and until the court is satisfied
that notice of the cause, specifying the nature of the matter has been given to the Attorney
5 General of the commonwealth and (a) if the cause is pending in a court of a state - to the
Attorney General of that state; or (b) if the cause is pending in a Federal court and was
initiated in a state - to the Attorney General of that state, and for a reasonable time elapsed
since the giving of the notice for consideration by that Attorney General or by those
Attorney General, of the question of intervention in the proceedings or the removal of the
10 cause to the HIGH COURT."
.
Mr G. H. Schorel-Hlavka in his case in 2002 did in fact serve upon all Attorney-Generals a
Section 78B NOTICE OF CONSTITUTIONAL MATTERS and by 2006 the Crown accepted
for the County court of Victoria on 19 July 2006 to adjudicate in favour of Mr G. H. Schorel-
15 Hlavka, and by doing so conceded, without seeking to challenge any of the numerous
submissions of Mr G. H. Schorel-Hlavka in relation to constitutional and other legal issues!
There is no excuse for any court/Tribunal to ignore the proper procedures and not to allow a
Defendant to follow such procedure.
There was no known evidence before the Court/Tribunal on 28 May 2008 that Mr Francis
20 James Colosimo relinquished all his rights and consented to any orders being made against him.
The Court/Tribunal simply relied upon the say so of the lawyers of Moorabool Shire Council
and as such ignored what would be obvious to a fair minded person and that is that if a person
claim to have been given advise that the hearing was adjourned then where the circumstances, as
in this case, was that the absent party may reasonably rely upon that kind of advise then Mr
25 Francis James Colosimo must be deemed to have a reasonable excuse and cannot be demand to
appear with a total disregard how such appearance being unrepresented may deprive Mr Francis
James Colosimo of a FAIR and PROPER TRAIL!
.
30 “The oath of a justice of this court is ' to do right to all manner of people according to
35 my opinion, better that the court should be persistently wrong than that it should be
ultimately right..
40 wrong, and there are no circumstances countervailing the primary duty of giving effect to
45 .
Therefore is the proceedings were from onset defective then it should be declared so and any
orders on record be deemed ULTRA VIRES and be declared to be so.
.
To understand and comprehend the issue of FEE SIMPLE one must first of all understand the
50 structure of State and Federal Government and also the application of English Law and other
p 357 9-3-2009
p358
provisions the Framers of the Constitution relied upon to be applicable for Federation or
specifically desired not to rely upon, and for that also where it is applicable the EU (European
Union) Human Rights provisions, etc.
.
5 This document is not intended and must neither be perceived to set out all relevant issues as to do
so would be beyond the scope of this document and neither needed to be done because of the
numerous books I have already published in the INSPECTOR-RIKATI® series on certain
constitutional and other legal issues.
.
10 This document will set out certain issues as to show why the Commonwealth of Australia is
nothing more but a POLITICAL UNION and therefore Authorities (case law decision by
foreign courts) may not be applicable to the constitutional structure of the Commonwealth of
Australia and the states (formerly known as colonies) which are constitutionally still dominions
of the UK.
15 .
Because the High Court of Australia on 3 October 2007 made a ruling regarding Queensland’s
FEE SIMPLE it is therefore very critical to attend to that issue and this as to avoid
misconceptions, etc, to be carried over to others cases that may be or come before the Courts,
regardless which State it might be in.
20 .
As I understand it in the 11 th and 12yth Century COMMON LAW was carried over onto
ANGLO-SAXON.
.
The 1215 Magna Charta (also referred to as Magna Carta) began to make it clear that
25 COMMON LAW prevailed in that no longer a person could be arbitrary removed from his
property but by proper application of law (DUE PROCESS OF LAW).
.
As with everything then and now, slowly COMMON LAW principles were undermined and
1600’s John Lilburn is an example how he desired to being COMMON LAW, so to say, back
30 into its fold.
In 1627 there was the Petition of Rights.
.1640 was with Habeus Corpus, as to make clear that no person should be robbed of his liberty
but by DUE PROCESS OF LAW.
35 http://www.1215.org/index.html
QUOTE
Habeas Corpus
History and Definition

There are two definitions for habeas corpus: one formal and the other substantive. The
40 formal definition may be found in any law dictionary. This essay is about the substantive
definition. The substantive definiton of habeas corpus is not found in the dictionaries, but
rather, in the history books.
In the early days (before Magna Carta), the king had many court systems operating: e.g.
courts of Common Pleas, Exchequer, King's Bench, Chancery, etc. Each court had its
45 jurisdiction defined. Of course, as an arm of government, courts are simply another form of
bureaucracy with assigned functions. Like any bureaucracy, they always want to expand
their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court
that should have had jurisdiction, and ask for an order directing the errant court stop its
proceedings and release jurisdiction to the proper court. The phrase, "habeas corpus,"
p 358 9-3-2009
p359
meaning, "you have the body" was put at the end of pleadings to the second court asking
that the first court be required to produce the body if it was being held. In its most common
form, the full formal phrase for habeas corpus was "habeas corpus ad subjiciendum."
END QUOTE
5 .
Clearly the Magna Charta sought to do away with the private courts where anyone could
purchase from the King the right to hold court as his own terms and by this one never would
know what the principles were of the courts, this because they varies from court to court.
.
10 One the principle of the Magna Charta was embedded that there had to be DUE PROCESS OF
LAW then the later Habeus Corpus was on those lines also.
.
In 1689 the Bill of Rights came into place.
.
15 It should however be understood that contrary to what people with perhaps a lot of legal training
but having a considerable lack on constitutional training may argue, the Magna Charta, the
Habeus Corpus, the Bill of Rights are part of the basis of the Commonwealth of Australia as will
be shown below.
.
20 Blackstone commentaries on English Law 1765-1769 for example refer to “Water cannot be
owned but the land which hold it can”.
.
QUOTE Mr. WISE.-
25 The objection I have to the present amendment is that it is a serious interference with
provincial rights. It provides that no state or citizen shall be prevented from taking water. It
seems to me clear that this being an Imperial Act, passed by the Imperial Parliament, the
result would be an absolute destruction of the right of any provincial Parliament to legislate
over its own waters. As the law now stands, a man may not take water as he pleases; he
30 maybe prevented, because he must pay regard for the rights of other riparian owners. If
we put this provision in the Constitution, which will be an Imperial Act, that no
citizen is to be prevented from taking water, we abrogate the common law entirely.
END QUOTE
.
35 What we see in this quotation that the Framers of the Constitution embedded in the constitution
both “common law” as well as “riparian owners”.
.
While one will not find specifically the wording “riparian rights” and “common law” in the
written Constitution nevertheless it is embedded in it, and for this as a CONSTITUTIONALIST
40 I am able to expose this where lawyers, no matter how much they may be educated in law may
never have bothered to learn the principles embedded in the Constitution and as such are unable
to appropriately interpret the written Constitution.
.
45 QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
p 359 9-3-2009
p360
RIPARIAN RIGHTS are clearly associated with Common Law and as such cannot be
disregard.
.
We therefore have established that Common law is embedded in the Constitution and it is from
5 the Constitution that the States have their identity as such (subject to this Constitution).
.
QUOTE
Mr. BARTON.-Certainly there is a decision in the United States to the effect that it is a
10 Christian nation. What does that decision amount to? Is it not really a decision based on the
fact that the institutions of England, under the common law, are Christian institutions,
which, so far as they are not interfered with by any written Constitution, belong to citizens
of the United States, as having been brought over by them as British subjects, and kept by
them from that day to this? If that is the ground of the American decision, which I suspect it
15 is, the same thing applies in some of these colonies. Decisions have been given to the effect
that there colonies are Christian communities. I remember a case in which that doctrine was
expounded at length by the late Chief Justice Martin, of New South Wales. Now, if the
colonies are Christian communities, the common law of England will apply to the
Commonwealth, except so far as this Constitution alters that law; and if it is part of the
20 common law of England that we shall be regarded as a Christian community, what fear is
there of our suffering any dangers of the kind indicated in the amendment, simply because
we are a Christian community?
END QUOTE
.
25 To understand the basis of the Federation one need to explore the various debates as to the
application or non-application of COMMON LAW.
.
Because the danger is to take some argument out of context if merely referring to a small part
where a reference is made as to COMMON LAW being applicable or not as such under English
30 Law or otherwise, and also dealing with RIPARIAN RIGHTS, etc, I have for this included
below about 72 pages of debates that seeks to give a proper reflection of the intentions of the
Framers of the Constitution.
.
35 QUOTE
END QUOTE
40 .
In my view, the various reports indicates that this is precisely what has occurred, where the
judges outside their judicial powers provided for in the Commonwealth of Australia
Constitution Act 1900 (UK) have embarked upon using judgments as a backdoor manner to
legislate. This is obviously a very dangerous and indeed treasonous conduct because it means
45 that the executives can manipulate the Constitution by merely putting at the bench of the High
Court of Australia those who will so to say to the tunes of the federal government, being its
ideology or otherwise.
.
We must never allow this kind of treasonous conduct by jusdges.
50 .
p 360 9-3-2009
p361

QUOTE
Sir EDWARD BRADDON.-The Judges of the Supreme Court were students to start
with.
5 Mr. SYMON.-But the Judges of the High Court in this Commonwealth will have grown
up with the subject.
Sir EDWARD BRADDON.-They are just dropping the feeding-bottle.

Mr. SYMON.-Then if they are just dropping the feeding-bottle-a not inapt expression-
they will be dropping it for the Judges of the Privy Council to take it up, and I should prefer
10 those who have escaped from that condition to those who are just entering upon it.
END QUOTE
.
In my view the problem is that the judges at the High Court of Australia, and I view so admitted
this in Sue v Hill are not adjudicating upon what the facts of the case before them are but are
15 adjudicating to what they view was a progressive change in how the Commonwealth of Australia
deals with matters. As such, the judges were not interested to maintain the origin of the
Constitution but flaunted this, sot to say, in favour of their own brainwashed beliefs.
I have no doubt that the Privy council never could have come to the decision as to the application
of the constitution as was done by the High Court of Australia in Sue v Hill, and this underlines
20 that the danger is from within where the Commonwealth of Australia Constitution Act 1900
(UK) albeit being a British legislation is not vandalized by the High Court of Australia as to
interpret the Constitution as to what may suit them on contemporary views, even so at time
pretending to follow the intentions of the Framers of the Constitution such as in Sykes v Clearly
while taking it out of context, obviously to me, rather then to accept that ultimately it is a
25 people’s Constitution and only by way of successful Section 128 of the Constitution referendum
can invoke contemporary views and not that of politicians and/or judges but that of the People
themselves.
.

QUOTE
Mr. ISAACS.-It is an irrevocable power, and the people cannot act. If we choose to leave
our Constitution in that state, very well. I can only say that we shall be introducing
enormous difficulties in the way of the acceptance of many of the provisions of the
35 Constitution which otherwise the people would have been content to accept, even though
they disagreed with them. Therefore, if my honorable friend desires to go further; if he
desires to introduce what is done in Switzerland, and introduce the initiative, there will be
strong matter for debate. All I say is, that we ought not to leave it in the power of any one
House to legislate-I do not care which House it is-and to be able to say once and for all that
40 it can interpose a bar against the people making a change in their Constitution.
[start page 725]
Sir JOHN DOWNER (South Australia).-I agree with the interjection of my honorable
friend (Mr. Symon). The position taken up by the Attorney-General of Victoria is quite
illogical. Mr. Isaacs appears to assume that the Houses of Parliament will not represent the
45 people. He forgets that they are elected by the people, elected on the same suffrage-only
one House represents the states and the other represents the general body of the people.
p 361 9-3-2009
p362
Mr. HIGGINS.-Surely he has not forgotten that; he has put that as plainly as possible.
He has not forgotten it.
Sir JOHN DOWNER.-The course which Mr. Isaacs suggests is practically to destroy
one of the Houses.
5 Mr. ISAACS.-My honorable friend is not fair in saying that; it is not right.
END QUOTE
.
It is perhaps regrettable that the very constitution that is for the people and by the people lack this
ability to have the people themselves commencing a referendum where they may find the
10 parliament unwilling to do this in regard of certain matters.
.
QUOTE Mr. DEAKIN:
It may yet be a subject for argument, to which I shall bring an open mind, whether issues
15 involving important principles of common law ought not also to go to the Privy Council, in
order to preserve uniformity of interpretation throughout the empire.
END QUOTE
.
20 QUOTE Mr. BARTON:
It must not be forgotten that there is to be a double citizenship conferred by this
constitution upon every citizen of these states and of the great nation which we hope to
found. If there [start page 94] is that double citizenship and there is not in all
essentials a due representation of it even in questions of money, then the friction of
25 which my hon. and learned friend sees so much danger in the relations between the
senate and the house of representatives on occasions in other places, say in America,
would be merely a surface indication of deep-seated irritation, which any negation of
proper rights will evoke within the states which are parties to the compact.
END QUOTE
30 And
QUOTE Mr. BARTON:
It was well pointed out by the mover of the resolutions that the endeavour to get rid of the
jurisdiction of the Privy Council for the Dominion of Canada was [start page 97] a fruitless
one, because the Imperial Government refused to assent to such a transfer of power.
35 Whether they would assent to such a transfer of power now seems very doubtful. By
precedent they would not; but I do hope that the mere fact that the action of the Imperial
Government has in a previous case been against the granting of any such power will not
deter the framers of this constitution from inserting provisions which will claim the power.
It may be refused, and, if it is refused, the refusal may be provocative of more or less
40 dissatisfaction; but that it is a power to ask for, and a power which will be beneficial when
gained, I have not the remotest doubt. Of course there may be exceptions, as the hon.
member, Mr. Deakin, has so well pointed out, in cases where imperial interests are
concerned, or in cases-but I am more doubtful as regards following his argument in this
part of it-in cases where the stability and uniformity of interpretation in matters of common
45 law may be endangered by not resorting to the Privy Council. In the first case there may be
an exception, but with regard to all other cases, I trust that this Convention, and the
parliaments to whom its conclusions are to be presented, will use their utmost efforts to
secure the abolition of the jurisdiction of the Privy Council and the transfer of supreme
p 362 9-3-2009
p363
authority to the colonial judiciary, which I am sure will be beneficial to the whole of the
colonies.
END QUOTE
And
5 QUOTE Sir JOHN DOWNER:
The upper branches of the legislature, be it the House of Lords or the legislative councils of
the different colonies, have, so far as either common law or written law is concerned,
authority almost co-ordinate with that of the Commons or the Assembly. It is the practice
of the community, super-added to the law, which has gradually deprived the upper branches
10 of their authority, and neither common law nor statutory maxim is responsible for the
encroachment which has taken place.
END QUOTE
And
QUOTE Sir JOHN DOWNER:
15 So far as my experience as a professional man is concerned, it agrees with the experience of
the professional men of other colonies, which is that there is no necessity at all for appeals
to the Judicial Committee of the Privy Council, not merely on the ground that was gently
hinted at by the hon. and learned member, Mr. Barton, namely, that the constitution of that
tribunal was not always as satisfactory as it might be, but also because, in the first place, we
20 think that justice should be speedy; in the next place, that we are satisfied with our own
tribunals, or we will be when we have a federal judiciary; and, in the last place, where any
appeal would be required from a tribunal of such high eminence as the federal supreme
court, the question as to the right or the wrong of the matter would practically have come to
so fine a point as probably to be almost a question of temperament as to which way the case
25 would be decided. But, if we wish to make Australia self-sufficing one of the first things
which I think we must insist upon is having our final judiciary here. I do not say this
without any limitation. I agree with the, limitation that the hon. member, Mr. Deakin,
mentioned. When imperial questions arise her Majesty must have some supervising
authority; but so far as the other matter to which the hon. gentleman referred is concerned-
30 as regards any important common law questions-I think that the Supreme Court and our
federal judiciary will be quite competent to settle those, and I am not aware of any reason
which makes it imperative that the decisions here and the decisions in the old country
should always follow on precisely the same lines. So far as your resolutions, sir, generally
are concerned, I agree with them. I agree that the border custom-houses must be removed;
35 but I also agree with what is the general understanding throughout, at all events, a large
majority of the Australian colonies, namely, that whilst intercolonial free-trade is to be
permitted, it is on the condition that for a time, at all events, there shall be protection
against the outside world.
END QUOTE
40 .
QUOTE Mr. CLARK:
. If you have your various governments moving in their respective orbits, each must be
complete, each must have its independence. You must have an independent legislature, an
45 independent executive, and an independent judiciary, and you can have only a mutilated
government if you deprive it of any one of these branches. I therefore hope to see a
complete system of federal courts, distinct from the provincial courts. I will not enter fully
into the question now. I could give many other reasons why we should have a double
system, and could mention many benefits which would flow from it. I content myself now
50 by saying that I hope that in addition to a separate federal system of courts we shall have a
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court of appeal, as the resolution contemplates. That will be an innovation, and a

wholesome innovation, upon the American system. The American Supreme Court cannot
hear appeals from the supreme courts of the various states except in matters of federal law.
I hope our Supreme Court will take the place of the Privy Council, and hear appeals upon
5 all questions of law. I now come to the question as to whether the decision of that court of
appeal ought to be final or not. I unhesitatingly say that, so far as the cases which come
before that court are purely Australian, the judgment ought to be final; but if a case comes
before it affecting imperial interests, or depending upon the interpretation of an imperial
statute in force throughout the whole empire, it would be absurd to talk about taking away
10 the right of appeal to the Privy Council. If the British [start page 254] legislature does what
it has the power to do, and what it has done-that is, if it passes a law for the whole empire,
such as the British Merchant Shipping Act or the Plimsoll Act-it would never listen to a
proposal to take away from its own court the right of interpreting its own acts. That, I think,
is perfectly clear. This reminds me that when hon. members talk of breaking our connection
15 with the mother country, or of cutting the first strand of the painter in a proposal to erect a
federal Judiciary, they have, it seems to me, a very hazy and imperfect notion as to what
our relations to the mother country really are. Our real relation to her as dependencies does
not depend upon our recognition of the Crown, or upon our appealing to the Privy Council.
The great and mighty fact with regard to our position in relation to the mother country is
20 that our legislative bodies are subordinate to the British Parliament, with their laws liable to
be overruled by that Parliament. That is the position in which we shall remain while we are
only a subordinate legislature-almost as subordinate to the British Government as
25 whether or not the name of the Queen is used in our acts of Parliament. That is really the
essence of the position which we hold as part of the British empire. It has been said that in
addition to the cases which involve imperial interests, and the interpretation of imperial
30 an article in the December number of the Contemporary Review, by one of the most
learned and scientific lawyers and legal writers of the present day-Sir Frederick Pollock. He
is so dissatisfied with the system of teaching law in England, that he says if it is not very
soon altered, the centre of the legal system of the Anglo-Saxon race will drift from the
35 of the Supreme Court of the United States for decisions on fundamental principles of the
common law. The American courts administer the same principles of common law that the
English courts do, and so far from its being a disadvantage to have two independent centres
of interpreters, it has been a benefit, and the common law of England has thus been
40 have acknowledged the benefit of, the decisions of the august tribunal on the other side of
the Atlantic. There is no reason why our supreme court of appeal may not produce the same
beneficent results, and enrich the stock of common law of the empire by being an
independent centre of interpretation. The hon. member, Mr. Wrixon, seemed to think there
might be an objection to making it a final court of appeal, because, he said, in Victoria they
45 have six judges who are amongst the ablest lawyers at the bar, and that it might be difficult
to get a tribunal which would command more respect for its judgments than was felt for the
decisions of the Supreme Court in that colony. I do not pretend to speak for the colony of
Victoria, or any other colony, particularly; I speak generally; but I think the hon. member,
Mr. Wrixon, will admit that we do not always get the six, or even the three, ablest lawyers
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in the community upon the bench of a colony. You get poor judges, just as you get poor
politicians.
Colonel SMITH: That is not the case now!

END QUOTE
5 .
QUOTE Mr. SYMON:
Now, if you are to have a federal judiciary, I cannot for the life of me see where the
additional charge on the people of this country is to come from if you give it the power at
10 the same time of decision finally upon all appeals from the courts of this country. The
functions of that tribunal will be twofold. It will be charged, in the first place. with the duty
of interpreting, according to the general principles of common law, the Federal
Constitution itself. Now, that has always been regarded, as I think history will declare, as
the most noble as well as the most distinctive feature of the Constitution of the United
15 States. It has been that element which has been alluded to as giving the arbitrament of calm
judicial decision over the arbitrament of the sword. The settlement of disputes between the
different States of the Union by a tribunal of that character is that which I am sure all
Australia would wish to see. That tribunal in the United States in that respect has been, of
course, the subject of criticism. Its powers have been threatened with limitation; but it
20 remains to this day one of the most striking features of the American Constitution, and one
which. I venture to think, is neither likely to be limited nor given up without a very severe
struggle indeed.
Mr. BARTON: Hear, hear.

Mr. SYMON: We know that in connection with the criticism to which it has been subject
25 one great and strong President, Andrew Jackson, a man of very arbitrary will, said on one
occasion:
John Marshall-the Chief Justice at that time of the Supreme Court of the United States-has
pronounced his judgment; let him enforce it if he can.
But, like many other positions of difficulty that present themselves, nothing ever came of
30 this kind of defiance, and the Supreme Court has gone on its way interpreting the
provisions of the Constitution for the benefit of the United States.
END QUOTE
.
35 QUOTE
Mr. BARTON: I take it to read that way. Coming to the chapter relating to the
judicature, I may say that, while the clauses referring to the judicature have been redrafted
by the Judicature Committee, in the main or to a large extent they correspond with the
provisions in that behalf contained in the Bill of 1891. Hon. members were familiar with
40 these provisions, and I do not propose to spend any great time in explaining them. It is
provided that instead of, as before, the Parliament having power to constitute a
judiciary, there shall be a Supreme Court, to be called the High Court of Australia, as
a part of the Constitution-that I believe to be an improvement-and other courts which
the Parliament may from time to time create or invest with federal jurisdiction. That
45 means that the Federal Parliament may make other federal courts or give jurisdiction to
deal with federal matters to some of the courts of the provinces if in its wisdom it thinks fit.
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There are to be a Chief Justice and not less than four other judges who will hold office on
the usual tenure, that is, during good behavior. They are to be appointed by the Governor-
General, with the consent and advice of the Executive Council, and may be removed by the
same advice, but only upon an address from both Houses of the Parliament praying for their
5 removal. The Drafting Committee have taken the liberty to amend the clause by adding the
words:
In that same Session.
because they consider that is necessary in order to prevent possible manoeuvering. It is

provided that the judicial power shall extend to matters which arise under the Constitution
10 or involving its interpretation; that it shall extend to laws made by the Parliament or matters
which arise under any treaty; to admiralty and maritime matters; to questions affecting the
public Ministers, consuls, or other representatives of other countries; to matters in which
the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a
party; to questions in which a writ of mandamus or prohibition is sought against an officer
15 of the Commonwealth; to matters between States; and to questions relating to the same
subject. matter claimed under the laws of the different States. These are the functions of the
High Court of Judicature, apart from its functions with reference to cases of appeal from
the courts of the States. They are the functions of the Court, more particularly as a
federal tribunal, and apart from its functions as a Court of Appeal. This matter will
20 receive much attention later on, and I need not go into details now. Then there is an
appellate jurisdiction conferred on the High Court in the following cases:
To hear appeals, both as to law and fact, from all judgments, decrees, orders, and
sentences of any other federal court, or court exercising federal jurisdiction, or of the
Supreme Court of any State, whether any such court is a court of appeal or of original
25 jurisdiction; and the judgment of the High Court in all such cases shall be final and
conclusive.
And then there is this proviso:
Provided that no fact tried by a jury shall be otherwise re-examined in the High
Court than according to the rules of the common law.
30 Then it is further provided that:
Until the Parliament otherwise provides, the conditions and restrictions on appeals to the
Queen in Council from the Supreme Courts of the several States shall be applicable to
appeals from them to the High Court.
The next clause provides that:
35 No appeal shall be allowed to the Queen in Council from any court of any State or from
the High Court or any other Federal Court,
With three exceptions, and these are that:
[start page 446]
The Queen may, in any matter in which the public interests of the Commonwealth, or of
40 any State, or any other part of her dominions are concerned, grant leave to appeal to the
Queen in Council from the High Court.
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The Judiciary Committee, as was done in 1891, confined the appeal to those classes of
cases in respect to which public interests may arise; and they may arise not only in
controversies between a State and the Federal Government, or a person and a State or the
Federal Government, but in many controversies between party and party; and the fact that a
5 controversy is between party and party is not intended to take away the applicability of this
section, so that even in cases between party and party where such interests are affected
there will still be the power for Her Majesty to grant leave to appeal. There are several
other provisions with regard to the jurisdiction of the High Court of Judicature, but I do not
propose to describe them at any length, as they are matters for after consideration.
10 END QUOTE
.
QUOTE
15 outside public-that power which does [start page 760] not exist in the House of Commons.
In Stockdale v. Hansard it was held that the courts of law were not precluded by a
resolution of the House of Commons from inquiring into the legality of the act complained
of, and in delivering judgment in the Court of Queen's Bench, Patterson (Justice) drew a
distinction between powers -especially the power of invading "the rights of others"-and
20 privilege. These powers are matters of common law in England, and are liable to be
restrained by the Court. Under the proposed amendment, the House of Representatives
could pass a resolution that would have the force of law to an extent denied to be a similar
resolution in the House of Commons.
Sir JOSEPH ABBOTT: In deference to the opinion expressed on the other side, I am
25 prepared to withdraw my amendment.
Leave given.
END QUOTE
And
QUOTE
30 Mr. DEAKIN: I would not intrude in this discussion, which has practically been
narrowed down to a discussion between New South Wales and South Australia, but for the
fact that I happened to be the President of the Commission from Victoria which was
concerned in the proposed Murray river treaty about which our friend Mr. Gordon has told
us so much this evening. I may say that at the time that conference between the two
35 Commissions-the one representing Victoria and the other New South Wales-was held, there
had not been, to my knowledge, any previous intention to admit South Australia to it, nor,
so far as I was aware at the time, had there been any expression of a desire on the part of
South Australia to come into it. The reason why that conference was held between New
South Wales and Victoria only was because it dealt with questions relating to the head
40 waters of the Murray, which, so far as we knew, were of no direct interest except to those
two colonies. New South Wales has special legal claims to the bed of the Murray, which
complicate, though they by no means settle, the question of the riparian rights upon that
stream, and it was partly because of this complication that this conference was held. It is
perfectly true that [start page 806] the conference arrived at an agreement as to the relative
45 rights of diversion, but it never was contemplated that within the life of living men, or for a
long time to come, anything more than a fraction of those quantities ever could or would be
diverted. It was simply laid down as a maximum in order, if possible, to establish an
equality of benefits as between the two colonies. If the province of South Australia was
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p368
then omitted it was for the reasons I have given. Afterwards when a request was made by
South Australia for a conference we at once cordially and freely assented, and without any
reserve, but we felt that it was useless to hold any such conference unless New South Wales
was also represented, a colony quite as interested as ourselves. Now, the colony of New
5 South Wales and its various Governments did not see their way to consent to that meeting.
They did not ignore the subject. To my knowledge they spent a large portion of the time
that intervened in making exhaustive enquiries about the water supply of the Murray basin
and what quantity could be used or diverted. They caused researches to be made which had
not up till then been made, and without which no determination could be arrived at. Mr.
10 Gordon has stated his case fully and clearly, but he will admit that if there were cast upon
him the task of determining how these waters should be apportioned the task would be
almost beyond the capacity of man. The position is as Mr. Carruthers has clearly stated.
First of all, if it be a legal issue, this is practically a question of international law, and
though it may be the custom of adjoining nations in the old world, and also in the new,
15 to agree to conferences in regard to the navigation or the use of the waters of rivers, I know
of no power to coerce any self-governing colony into holding such a conference. I am not
arguing against the reasonableness of the hon. member's claim, nor am I contending that
New South Wales in this instance would not be acting a courteous part in agreeing to a
conference. It seems to me highly desirable that some friendly enquiry into this matter and
20 into the circumstances surrounding it should be entered upon.
Mr. GORDON: I only want a tribunal to which it may be referred.
Mr. DEAKIN: But if we have a tribunal we must have some general idea of the
principles upon which the tribunal is to proceed to try the case. In this instance there is no
basis upon which the Federal Parliament could proceed to decide it.
25 Mr. DOBSON: Have you not said that international law could be applied?
Mr. DEAKIN: No; I do not know of any international law that can deal with this
question. I do not remember where it has enforced the purely private doctrine of riparian
rights. But if there were any such reference in the old world experience I would go quite as
far as my hon. friend Mr. Carruthers in saying that the principles of riparian law are no
30 more applicable to this country than they are to the Western States of America. Almost the
whole of the States of America have adopted the common law of England; but some of the
Western States of America, where rivers like this are found, and where exactly the same
circumstances of dearth exist as in the Murray basin-in such States as Colorado - they have
expressly set aside the common law of England in order to get rid of the riparian law. They
35 have felt that the riparian law of England was so absolutely opposed to every principle of
public policy that they have set aside the common law of England rather than be entangled
in its meshes.
Mr. DOBSON: That is not the case here.
Sir JOHN DOWNER: Did they not do it on terms that were fair to each other?
40 Mr. DEAKIN: They did it in the constitution of a new State.
Sir JOHN DOWNER: They grabbed.
[start page 807]
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p369
Mr. DEAKIN: They colonised. The mother-country "grabbed" this country when she
colonised it. But I am not speaking adversely to Mr. Gordon. I am merely showing the
difficulties which surround this case. It is impossible to apply the principles of riparian law
to the River Murray.
5 Mr. DOBSON: Do not add to the difficulty, but get us out of it.
Mr. DEAKIN: I am afraid I should require much more time than this Convention could
allot me if I were even to offer an opinion on that subject. But I want to show Mr. Gordon
the unwisdom of endeavoring to include in the Federal Constitution the settlement of a
problem such as this: the acquirement, in point of fact, under this Constitution of a legal
10 right where at present no legal right exists or is enforceable; and, inasmuch as this is the
claim of one colony against another, it is a matter for a conference treaty or discussion
between those countries, and not a matter that is ripe for reference to a federal authority. No
doubt when the federal authority is established there will be a growth of the federal spirit
which it; yet but in its germ, and under these circumstances the reasonable and proper
15 application of the hon. member and his colleagues for a conference upon this question
would probably be acceded to, and in my individual opinion ought to be acceded to. But I
wish to point out the practical reason why riparian law could not be applied to the river
Murray. That law, of course, requires that the waters should be allowed to pass
undiminished in quantity and unimpaired in quality. This means that the only persons
20 authorised to draw water from the River Murray, which is capable of being so materially -
reduced in certain seasons, would be the persons immediately situated at the mouth of that
stream, and that practically the only irrigable portion of the Australian continent which is
watered by that enormous river would be the low-lying lands surrounding the mouth of the
Murray. It would be impossible to withdraw any large quantity of water such as Mr.
25 Gordon has spoken of, and such as may be drawn from the waters or that stream on
its remoter watersheds, without the probability in dry seasons of the general body of
the river being seriously impaired. This would mean that in order to preserve. riparian
law the whole of the waters of the greatest river of the Australian continent-a river, whose
waters might periodically be said to be almost worth their weight in gold, would be allowed
30 to flow idly and uselessly to the sea for all time in order that the theoretical riparian rights
of the dwellers near its mouth might be conserved. Surely that is an utterly unreasonable
and untenable position.
Mr. BARTON: And the ruin of the proprietors of the land through which the river runs.
Mr. DEAKIN: No great benefit will accrue to the proprietors near the mouth of the river,
35 and ruin to all the rest in some seasons. If then riparian law must be set aside other
principles can be adopted. The hon. member recognises that there must be some general
principles of fairness and equity discoverable in connection with this problem.
END QUOTE
And
40 QUOTE
Mr. SYMON: I think Sir William Zeal has dealt with the subject as though we were
engaged in the negotiation of the terms on which South Australia and Victoria should
jointly deal with the waters [start page 816] of the Murray. We are only inviting the
Convention to empower the Federal Parliament to deal with the subject. When the matter is
45 brought before the Federal Parliament or Executive, then all these questions of
compensation in connection with this great reservoir will arise.
p 369 9-3-2009
p370
Sir WILLIAM ZEAL: There are dozens of them.
Mr. SYMON: Then so much the greater will be the claim of Victoria to compensation.
All we are now asking the Committee to say is that this is a matter of federal importance,
that the federal authority is competent to deal with it, and that it may be removed from the
5 individual control of the States who have been unable to come to any agreement on the
subject. For my part I recognise very strongly the difficulties which have been pointed out
in the possible adjustment of the question. There can be no doubt as to the position
taken up by Mr. Carruthers, and that many of the rules of the common law and rules
of international comity in other countries cannot be justly applied here. Then, if you
10 are separating the question of the navigability you are met with the difficulty of how the
volume of water is to be ascertained that is to be passed from one State to another. I hope
the amendment in something like the shape proposed by Sir John Downer will be adopted.
There can be no question as to the navigability of the river being vital to us, as much so as
its use for irrigation and conservation is to the neighboring colonies. If we were foreign and
15 independent States the question of the navigation of the river would have to be settled
according to the principles of international comity.
Mr. HIGGINS: It would be done by agreement.
Mr. FRASER: Or settled by arms.

Mr. SYMON: In case of an obstruction to the navigation by one State it might be so
20 settled. Surely, however, we can trust the federal authority by devolving on them the duty
of controlling the navigability of the stream. That is all we ask you to do, and it seems to
me that, without entering upon questions of great difficulty, no fear need be entertained by
either of the colonies concerned as to the fairness with which the Federal Parliament will
deal with this question, or the justice that will be meted out. I feel indisposed to go to the
25 length of the amendment which Mr. Gordon first put, as I do not think either justice or law
would lead us to interfere with the control by New South Wales and Victoria of the rivers
which are absolutely necessary for the development of their own country. As far as the
Murray is concerned, it is a different question, and I think the interests of the three colonies
would be conserved by leaving the control of the rivers as a navigable stream to the Federal
30 Government.
Mr. KINGSTON: I think we are indebted to previous speakers for having devoted so
much care and attention to the statement of the South Australian view of the case. I trust
that the Convention will not separate before we have framed a Constitution which will
render it possible that an existing source of friction may be at once and for ever removed.
35 There is no doubt that, in connection with this particular question there has been a great
deal of friction, not to say irritation, between the various colonies which are affected, by
what appears to me to be an extravagant use of the head waters of the Murray, to the
detriment of those through whose territory the river flows.
Sir WILLIAM ZEAL: That is not as far as the Murray is concerned.

40 Mr. KINGSTON: I was referring to the Murray as including the tributaries by
which it is fed.
END QUOTE
.
45 QUOTE
p 370 9-3-2009
p371
Clause 72-The High Court shall have jurisdiction, with such exceptions and subject to
such regulations as the Parliament may from time to time prescribe, to hear and determine
appeals, both as to law and fact, from all judgments, decrees, orders, and sentences of any
other federal court, or court exercising federal jurisdiction, or of the Supreme Court of any
5 State, whether any such court is a court of appeal or of original jurisdiction; and the
judgment of the High Court in all such cases shall be final and conclusive: Provided that no
fact tried by a jury shall be otherwise re-examined in the High Court than according to the
rules of the common law.
Until the Parliament otherwise provides, the conditions and restrictions on appeals to the
10 Queen in Council from the Supreme Courts of the several States shall be applicable to
appeals from them to the High Court.
Mr. GLYNN: It seems to me that the words:
With such exceptions and

are exceedingly wide, and gives power to the Parliament to cut down the powers to
15 practically nothing. I move:
To strike out "with such exceptions and
Amendment negatived.
Mr. WISE: I move:

To strike out of the third line of the clause the words "both as to law and fact."
20 If this is carried it will be necessary to strike out the proviso at the end of the first sub-
section. I think I was the cause of these words being put in, but on further [start page 968]
consideration I have come to the conclusion that they are unnecessary. It is better to
give the unrestricted power to appeal to the High Court, and let the Parliament fix the
conditions. It has been laid down in New South Wales that where there is an appeal it does
25 not include the power of re-hearing, and a similar decision has been given in Victoria,
though, in my opinion, it does. The words were taken from the American Constitution,
where the High Court has the power of reviewing a decision of the jury on a question of
fact.
Amendment agreed to.
30 Mr. WISE: I now move:
That the following words at the end of the first section be struck out- Provided that no fact
tried by a jury shall be otherwise re-examined in the High Court than according to the rules
of the common law."
Mr. ISAACS: I quite agree with my hon. friend that the words are not needed. I
35 have been extremely puzzled to know what the words mean to-day. There might have been
some meaning in them and some necessity for them 100 years ago, when judges exercised
such extreme powers, and when they tried to override trial by jury.
Amendment agreed to; clause as amended agreed to.

END QUOTE
40 And
p 371 9-3-2009
p372
QUOTE
Mr. SYMON: I say the result is that instead of trying to bolster up-and I use that word
with all respect, for I should be [start page 983] sorry indeed that any disparaging words
should escape my lips-instead of trying to build up the Privy Council in dealing with
5 Australian appeals by sending home one or more of our judges, we had very much better
keep our judges here to constitute a strong Court of Appeal in our midst. Then Sir Joseph
Abbott talked about uniformity of the law. Well, really those of us who are in practice are
well aware that the decisions of the Privy Council would exercise practically, if not
absolutely, as much influence if cited before the High Court of Australia, if it were the final
10 Court of Appeal, as they do now. The phrase that "the court is not bound by" is a mere
facon de parler. It is a phrase we are in the habit of using. As Mr. Higgins said, great
attention and weight are attributed to United States decisions, not only from the highest
court of the land, but from the Supreme Courts of the States, and they are cited before
English tribunals, though they are not bound by those decisions. The law administered here
15 would be the common law of England, as it is now, without divergence and without
qualification, except as it is varied by Statute law. I have yet to learn, as Mr. Reid put it
very clearly and very moderately, that the laws administered by our High Court of Australia
would not have at least some weight in England. We have given statutes to England. We
have had our statutes placed on the statute book of other colonies, and England has
20 followed suit in some respects. I feel no reason to apprehend that the law which has
been weighty in other courts of the realm would not be as weighty within the bounds
of the Commonwealth we are attempting to create. My hon. friend said the
establishment of the High Court of Australia and the discontinuance of appeals to the Privy
Council would degrade our State Supreme Court. Surely he cannot have weighed that. How
25 can it have such an effect? How can it be said that there would be one single element of
degradation? He speaks of our financial interests, and we hear of the great bogie of
the rights of property. I have as great a desire to maintain the rights of property as he
has. I do not believe in the sacred rights of contract being wantonly interfered with. I
do not believe in sacred rights of property being assailed unnecessarily, but it would
30 lessen the power of the purse if we pass this; and if we do that, even, to a small extent,
it will redound to our credit and bring upon us the commendation of those who have
sent us here.
END QUOTE
.
QUOTE
Mr. BARTON: At first I thought it would be necessary to have some provision of this
sort, but now I think it is unnecessary. In the clause it is prescribed that [start page 1183] an
elector "shall have only one vote"; as to the Senate and as to the House of Representatives I
40 intend to move, on the recommittal of the clause, that the matter shall be turned into a direct
prohibition; that is, that "no elector shall vote more than once." A breach will be a Statutory
misdemeanor, and the offender can be punished, this being an Imperial Statute, in the same
way as he would be for a breach of any other Imperial Statute applying to the colonies,
such as the merchant shipping laws. Lest there should be any doubt in connection with the
45 giving of a vote, when there is a distinct law against it, there is a passage in Russell on
"Crimes," which the legal members of the Convention will be satisfied with. It is in the
fifth edition, page 192:
Where an offence is not so at common law, but made an offence by Act of

Parliament, an indictment will lie where there is a substantive prohibitory clause in
p 372 9-3-2009
p373
such Statute, though there be afterward a particular provision and a particular

remedy given. Thus, an unqualified person may be indicted for acting as an attorney
contrary to the 6 and 7 Vict., c. 73, a. 2, although sec. 35 and sec. 36 enact that in case
any person shall so act he shall be incapable of recovering his fees, and such offence
5 shall be deemed a contempt of court, and punishable accordingly.
That is to say, although the Statute provides a distinct means of punishment, yet if by the
disregard of the prohibition a misdemeanor is committed, a court can convict the offender
of that misdemeanor and may fine or imprison him. The passage continues:
And it is stated as an established principle that when a new offence is created by an

10 Act of Parliament and a penalty is annexed to it by a separate and substantive clause,
it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the
prior clause on the ground of its being a misdemeanor; and wherever a Statute
forbids the doing of a thing, the doing of it wilfully, although without any corrupt
motive, is indictable.
15 Wherever the Statute, as I intend to ask the House to make it in this case, says that no
elector shall vote more than once, there is a distinct prohibition, and voting more than once
wilfully will be a crime and misdemeanor, and the courts will be able to punish by fine or
imprisonment. They will have the distinct power. There is in all of these colonies an
electoral law, and power to alter it, until Parliament otherwise provides, and if there are not
20 distinct provisions for punishment for such offences, it is still in the power of the State law
to subject the offenders to such punishment as it prescribes. But even if that were not done,
the case is distinctly met by the Statutory prohibition, which will be imposed by the form in
which we propose to put it, and, I think, my hon. friend will agree that his new clause will
not be necessary.
25 Mr. ISAACS: I suppose you propose to put in words to make it a misdemeanor.
Mr. BARTON: If necessary; but where the statute expressly forbids it is a misdemeanor
without further words.
Dr. QUICK: Without any corrupt motive is it indictable?

30 intentionally it is indictable.
Mr. HIGGINS: What words do you propose to put in?
Mr. BARTON: I propose to alter the words "each elector shall have only one vote"
to "no elector shall vote more than once," and that being a distinct statutory
prohibition will meet the case.
35 END QUOTE
.
QUOTE The Hon. R.E. O'CONNOR:
Before I read the decision in that case I think I may have the assent of the Committee
40 to this statement, that the interpretation of our constitution will be most probably
upon the same lines as the interpretation of the United States Constitution. In both
cases the law administered is the common law of England derived in this colony and
America from exactly the same sources, and administered on exactly the same
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principles. I think we may take it that the decisions which have established certain
positions in America in the construction of their constitution will most probably be
followed here.
END QUOTE
5 ..
QUOTE
The CHAIRMAN: Perhaps I may explain that I propose, if the amendment of South
Australia is negatived, to put as a test the next amendment, which is that of the Legislative
10 Council of Victoria, namely, to strike out the latter part of the clause beginning with the
words "and the laws." I will put the question that the words "and the laws" only be omitted.
If that question is carried it will necessitate striking out all the rest of the words of the
clause, but putting it in that form will enable the Committee to vote, if the amendment is
negatived, on the amendments of the other legislatures.
15 Mr. SYMON (South Australia)[2.48]: I would point out that it would be exceedingly
undesirable to insert these words "in addition to the laws of Great Britain." Such an
amendment would be most confusing and embarrassing. Either one set of laws or the other
should prevail. Whichever prevails constitutionally we shall have to submit to, that is,
whatever set of laws is paramount. As the hon. member, Mr. Barton, reminds me, the word
20 "laws" in this clause means statute laws, it has nothing to do with the common law of
England. So that by inserting these words in addition to the laws of Great Britain we shall
be making confusion worse confounded. Even the words "Great Britain" are a little
uncertain. The amendment is bad in substance, and also in form. Although I yield my
opinion in deference to what appears to be the opinion of the Committee on the other point,
25 I think the confusion will be doubly increased if we insert these words. I therefore suggest
that the Committee should give careful consideration before they insert an expression of
that kind.
The Hon. R.E. O'CONNOR (New South Wales)[2.50]: I think the amendment
suggested by the Legislative Council of New South Wales will carry out what appears to be
30 the sense of the Committee, that is, to amend the clause so as to read in this way:
Whose first port of clearance and whose port of destination are in the commonwealth.
That will make it quite clear that it applies only to ships whose whole voyage is within the
commonwealth, and however desirable it may be to extend it to other cases such as has
been mentioned by my right hon. friend, Mr. Reid, I do not see that it can be done. I think
35 all we can do is to ensure that the laws of the commonwealth shall be in force on all
ships whose voyage is wholly within the commonwealth. I quite agree with what my
hon. and learned friend, Mr. Symon, has said, that it will make confusion worse
confounded to insert the words "in addition to British laws." It might make it more
clear, perhaps, to insert these words: "the laws of the commonwealth in so far as the
40 same are not repugnant to any Imperial act relating to shipping or navigation."
The Hon. I.A. ISAACS: Is there not an Imperial act relating to repugnancy?
The Hon. R.E. O'CONNOR: The Colonial Laws Validating Act applies only to the
acts of the different states; it would not apply to this act at all, so that I think it will be
necessary to have some words of that kind inserted.
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The Hon. I.A. ISAACS: That will be unnecessary, because the Imperial law is
paramount!
The Hon. R.E. O'CONNOR: I really think it would be better only to accept [start page
253] the amendment of the Legislative Council of New South Wales, which I think carries
5 out the views of the Committee.
Question-That the words "in addition to the laws of Great Britain" be inserted-resolved in
the negative.
The CHAIRMAN: The next amendment suggested is that by the Legislative Council of
Victoria to strike out the words:
10 And the laws and treaties of the commonwealth shall be in force on board of all British
ships whose last port of clearance or whose port of destination is in the commonwealth.
I would ask the Committee to take a test vote whether that suggestion should be agreed to
on the question to strike out the words "and the laws." If we strike out these words we must
strike out the rest of the clause. If we do not strike them out we can make the amendments
15 suggested by the legislatures or consider any other suggestion.
Amendment (suggested by the Legislative Council of Victoria) negatived.

END QUOTE
.
20 QUOTE
Mr. WISE (New South Wales)[4.56]: It seems to me that whether the provision is
retained or not it will be precisely the same. The words, in my opinion, are mere
surplusage. Everyone knows that when a statute prescribes anything the breach of it is
a misdemeanour at common law. There will be this difficulty about retaining the words,
25 and I draw the attention of the hon member, Dr. Quick, to it: If we keep the words in, there
may arise: a difficulty as to the jurisdiction under which an offer should be tried, whether it
should be by federal or by the local courts.
Dr. QUICK:, No more than if it were an implied misdemeanour!
Mr. WISE: I am not sure; possibly not; and that maybe an answer to the argument. But it
30 does seem to me that if you put in this provision you cannot say by what court au offender
should be tried. If we retain the words, it will be a blot on the drafting.
The Hon. Sir J.W. DOWNER (South Australia)[4.58]: I do not want to take up any
time in, debating this question; [start page 419] but I would point out that this will be a
restriction on the federal parliament. They might want to make this offence more than a
35 misdemeanour; they might want to inflict some other punishment. It seems to me an
unnecessary interference with the rights of the federal parliament.
The Hon. N.E. LEWIS (Tasmania)[4.50]: The principle for which the hon. member, Dr.
Quick, is contending is embedded in the constitution without the words proposed to be
omitted. We provide that each elector shall vote only once. It is not proposed to leave out
40 those words, so that the principle of one man one vote is embedded in the constitution,
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The Right Hon, Sir G. TURNER: A layman reading that would say, "There is no
penalty I shall, vote as often as I like!"
The Hon. N.E. LEWIS: Surely we can leave it to the federal parliament to make
provision.
5 Dr. QUICK: How can you, do that in the case of the first election?
The Hon. N.E. LEWIS: As far as the first election is concerned, it will be a
misdemeanour at common law, and there is the usual penalty for any misdemeanour,
for which a punishment is not otherwise provided. Surely it will be a blot on this
constitution if we embody in it something which should be dealt with by the criminal law.
10 Question-That the words "and if any elector votes more than once he shall be guilty of a
misdemeanour," stand part of the paragraph put. The Committee divided:
Ayes, 16; noes, 28; majority, 12.

END QUOTE
.
QUOTE Mr. GORDON.-
If irrigation is a national necessity and a national problem-if it is now a matter of regret
that the American Government did not take over the control of the public streams of
America-would not the same regret and the same conditions exist here? Irrigation will be
20 ten times more a national necessity here than it is in America, and the regret will be ten
times greater if we miss this chance of settling the question, and the Constitution does not
provide for the control of these water channels. And, after all, what are we asking for? We
are only asking for the right that every riparian proprietor enjoys under British law-the right
that the man above him shall neither injure the quality nor diminish the flow of any stream
25 designed for their mutual benefit and enjoyment. That is a right that is founded deep in
natural justice. It cannot be said that we are asking for anything extraordinary or making
extreme demands upon our follow colonists when we simply seek for that right which
every riparian proprietor under British law enjoys. The tendency of modern legislation is to
go even further than the common law doctrine in declaring that there shall be no exclusive
30 property in running streams. The tendency of modern legislation is to say that while the
riparian proprietors should have their rights under the law there is a higher, a paramount
right, the right of the people who are the dwellers on the banks of these streams. That is an
extension of the doctrine of riparian [start page 38] rights that is being acted upon by many
of the Governments of the United States. It cannot, therefore, be said that we are robbing
35 New South Wales, or making extreme demands on the generosity of that colony, when we
are only asking for that which every man in New South Wales enjoys-the right to have the
stream which flows through his land undiminished in quantity and uninjured in quality.
That is all we are asking for, and how can it be said that the demand is unreasonable?
END QUOTE
40 .
QUOTE
An HONORABLE MEMBER.-So far as navigable.
Mr. SOLOMON.-Yes; I do not refer to all the little streams, creeks, and branches which
45 stretch out to the borders of Queensland, because, after all said and done with regard to the
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waters of the Darling, in the wet seasons New South Wales is indebted to Queensland. If
Queensland tried to impound those waters and prevent them from flowing into the Darling
during wet seasons, the New South Wales delegates would be just as eager to have the
question referred to an independent tribunal as we are at the present time. If the New South
5 Wales delegates were prepared to accept a slight amendment of sub-section (31) as it
stands, so as to include these words, "and its tributaries," and if they like they could put in
the words "navigable tributaries," so as not to include all the smaller streams and creeks
that feed the reaches of the Upper Darling-
Mr. WISE.-That would introduce a lot of difficulty with regard to the interpretation of
10 "navigable."
Mr. SOLOMON.-"Navigable" cannot be defined in any Act; it is a question for

expert evidence to decide.
Mr. WISE.-According to English common law no river is navigable unless the tide ebbs
and flows in it.
15 [start page 112]
Mr. SOLOMON.-I am not so presumptuous as to debate decisions under English
common law with so many learned members in this Convention. I would rather do away
with all questions of law, and consider the question of natural justice as it affects the
colonists of the various states. If we put in this Bill simply that the control and regulation of
20 the Murray and its navigable tributaries should be placed in the hands of the federal power,
we shall be meeting New South Wales as far as irrigation is concerned, and I think we may
meet the requirements of the people of South Australia.
END QUOTE
.
QUOTE Mr. SYMON.-
It may have been thought that there are some reputations on the competence of the Privy
Council. My objection to the continuance of the Privy Council is not on the ground of want
of competence at all. That it is a competent court I do not deny, and I do not think anybody
30 else denies it. Though the seats in the Privy Council are occupied by men of the very
highest eminence and distinction, trained in that noble body of jurisprudence called the
common law of England, still that very training is, to a certain extent, a limitation when we
have regard to the nature of the constitutional questions which will be brought before them
for consideration. What training-and I ask this with all possible esteem, in fact, with the
35 highest admiration for the power and competence of that court-what training or experience
or knowledge of the questions to arise under the Federal Constitution has that court? They
will approach the subject as students. They will approach the subject with all the
disadvantage of a long life spent in a different environment, under totally different
conditions.
40 Sir EDWARD BRADDON.-The Judges of the Supreme Court were students to start
with.
Mr. SYMON.-But the Judges of the High Court in this Commonwealth will have grown
up with the subject.
Sir EDWARD BRADDON.-They are just dropping the feeding-bottle.
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Mr. SYMON.-Then if they are just dropping the feeding-bottle-a not inapt expression-
they will be dropping it for the Judges of the Privy Council to take it up, and I should prefer
those who have escaped from that condition to those who are just entering upon it. But can
it be doubted for a moment that, if both courts approach the matter as students, in the one
5 case you have a body who are dealing with it 12,000 miles away, and, in the other ease, you
have a body who are dealing with it amongst ourselves body constituting the High Court, in
which we repose the safeguarding of our liberties? But I wish to call honorable members'
attention to this also, as allusion has been made to Canada, that it is notorious that the Privy
Council has failed to interpret the Canadian Constitution in the large spirit which is
10 essential in dealing with a Constitution which must be elastic. I will read to honorable
members a quotation, merely prefacing it by saying that I am not disparaging the Privy
Council at all, but only pointing out that they are guided by a more rigid adherence to what
is literal, as though they were interpreting simply an Act of Parliament, rather than by a
regard for those great constitutional principles which throw light upon and assist in the
15 efficient interpretation of a Constitution. Bryce, on page 509 of his book-I commend the
quotations very strongly to the attention of honorable members, because this is a much
larger question than the mere form of words we are to use in this Constitution-in
pronouncing a eulogy upon the work of Marshall, the famous Chief-Justice of the United
States, says-
20 That admirable flexibility and capacity for growth which characterize it (the American
Constitution) beyond all other rigid or supreme Constitutions is largely due to him, yet not
more to his courage than to his caution.
Now, what does he say about the Privy Council, contrasting it with that?-
Had the Supreme Court been in those days possessed by the same spirit of strictness and
25 literality which the Judicial Committee of the English Privy Council has recently applied to
the construction of the British North American Act of 1867 (the Act which creates the-
Constitution of the Canadian Federation), the United States Constitution would never have
grown to be what it is now.
Now, there you have a-criticism by a valuable authority as to the limitations on the
30 capacity of the Privy Council, at any rate on their willingness to interpret the Constitution
with a view to that elasticity [start page 345] that ought to prevail; and Bourinot, in a
valuable article which appears in the Arena of March last, writes-
Several cases involving constitutional issues of great moment have already come before
that learned body (the Privy Council), and on more than one occasion the decisions of the
35 Supreme Court have been reversed-
And yet in spite of that fact he goes on to state-
though the general result so far has been to strengthen confidence in the Canadian
tribunal.
There we have the experiment. The experiment has been made in connexion with Canada,
40 where these questions have gone from the Canadian Supreme Court to the Privy Council,
and the result, in the estimation of a great constitutional writer, notwithstanding the
reversals that have taken place, has been that the confidence of the Commonwealth in the
Canadian Dominion has been greatly strengthened in their own High Court. Now, why
should we pass through this experiment again? Why should we not be content with the
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experience that has been already gained? Then it may be, indeed it has been said that these
appeals that are talked about are appeals going to the Privy Council in matters involving the
common law. Now, what is the present condition of things? Are the colonies satisfied with
the Present condition of things? Is it not a fact that the colonies have concurred in sending
5 an Australian Judge, as Mr. Chamberlain said in his address to the Premiers, to strengthen
and instruct the Privy Council? I am proud myself that the lot in that respect, has fallen on
South Australia. I am, as we all are, gratified that the distinction should be conferred on the
Chief Justice of our colony, and I am willing to admit that as a token of goodwill and
conciliation on the part of the Imperial authorities it is valuable. But I am candid enough, at
10 the same time, to admit that the whole thing is rather a farce, because, on the one hand, it
cannot be to strengthen the Privy Council, so far as the common law of England is
concerned. The Judges of the Privy Council are at least just as competent as the Judges of
Australia to interpret the common law of England. It cannot be to strengthen the Privy
Council so far as the statute law of the colonies is concerned, because the Judges of one
15 colony are no more competent to deal with the statute law of the other colonies than the
Judges of the Privy Council would be. But at the same time, having concurred in the
desirability of appointing an Australian Judge to a seat on the Privy Council Bench, it is
impossible for us to say that we are satisfied with the Privy Council as previously
constituted, or with the Privy Council under these conditions in relation to the ordinary
20 Australian appeals. And how long, I ask with Mr. Isaacs, who pointed out that we are
establishing a great court to deal with great questions, are we to be in a condition of
tutelage? Are we for ever to be unequal to the task of appointing a final Court of Appeal?
END QUOTE
And
25 QUOTE
Amendment suggested by the Legislative Assembly of South Australia:
Omit "shall be by jury, and every such trial" (line 3).
Mr. GLYNN (South Australia).-I hope that the committee will seriously consider this
amendment. It was proposed in Adelaide, and by the Legislative Assembly of South
30 Australia. The object of the proposal is to render the Federal Parliament as omnipotent
within its own authority as the existing Parliaments of the states are at present. I do not see
why we should put any limit on the Federal Parliament within its own jurisdiction such as
is proposed in this clause. We are making trial by jury a fixture.
Mr. WISE.-Hear, hear.
35 Mr. GLYNN.-We should give the Federal Parliament as much latitude in deciding
whether trial by jury should be perpetuated as possible. We should not render its power less
great than the power which is possessed by the states at present. It is for that reason that the
suggestion is made by the Legislative Assembly of South Australia, and I trust that the
words in question will be struck out.
40 Mr. WISE (New South Wales).-I think that the clause as it stands is a necessary
safeguard to the individual liberty of the subject in every state. It does not interfere with the
right of every state to alter its laws and to deprive its citizens of their liberty of being tried
by a jury of their fellow countrymen, but it does say that the Federal Parliament shall be
compelled to submit any person accused of a breach of the federal laws to trial before
45 a body of his own fellow citizens, in the state to which he belongs. If this clause were not
here offenders under the Federal Parliament might be removed under an executive act from
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one part of the Commonwealth to another, to be tried by resident magistrates, and the
Federal Executive would be given authority which might permit them to tyrannously
interfere with the liberties of every subject in the community.
Mr. SYMON (South Australia).-The only argument I have heard in support of the
5 argument of my honorable friend (Mr. Glynn) was that which O'Connell used in the House
of Commons. He said that he was concerned in a case in which a prisoner was being tried
for murder. The case was tried in Ireland. The one witness who was called for the
defence was the murdered man. There was no doubt as to his identity, but the jury
found the prisoner guilty.
10 Mr. HIGGINS (Victoria).-I feel very strongly that, no matter how much we may value
trial by jury as a piece of machinery, it is not a matter for this Constitution at all.
Mr. WISE.-It is only for indictable offences committed under laws passed by the Federal
Parliament.
[start page 351]
15 Mr. HIGGINS.-But why should we make it a matter for the Constitution, which cannot
be affected by anything the Federal Parliament may do, that there shall be a jury for the
trial of any indictable offence?
Mr. WISE.-Because it is a safeguard of liberty.

Mr. HIGGINS.-If the honorable member were speaking a hundred years ago he might
20 have expected his remark to be applauded when he spoke of trial by jury as being a
necessary safeguard of liberty.
Mr. WISE.-I am speaking of modern times and in view of the decisions of Courts of
Equity.
Mr. HIGGINS.-A Court of Equity would not be able to imprison the honorable member,
25 except be were guilty of contempt of court, without trial by jury; they would have no
power to put him in prison for an indictable offence, even supposing that the
honorable member were guilty of an indictable offence. It would be, in the mouth of any
one else but my honorable and learned friend, mere clap-trap to say that trial by jury was a
safeguard of liberty at the present time. I agree that it is as well to have a jury in criminal
30 cases; I should like to see the system preserved in such cases. But that is not the issue. The
issue is whether we are to stereotype this in the Constitution, and to say, no matter what
changes may come about in legal procedure and in the mode of dealing with crimes, that
we must have a jury, and that nothing but a change in the Constitution can bring about an
alteration. I can tell honorable members that under a similar provision in the American
35 Constitution there has been a great deal of embarrassment, because they have not been able
to alter the criminal procedure in order to suit the exigencies of modem times.
Mr. GLYNN.-They have no power to take a majority verdict, for instance.
Mr. HIGGINS.-That may be right or wrong; they cannot have assessors in commercial
cases. No matter how important the case may be, nor how large the interests at stake, they
40 have to take the verdict of a common jury composed of men taken out of the street, as
it were, although the case may involve huge interests, and be very complicated. There is
more and more a tendency for the frauds which take up the time of the criminal courts to be
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of a complicated nature, often involving difficult questions of accountancy. And is it fair to

say that there should be no power to say what class of men shall try a case of that kind? In
Victoria, where there have been charges made against the directors of public companies,
there has been a general feeling that ordinary juries are not competent to go into the
5 difficult questions of accountancy involved.
Mr. OCONNOR.-This matter does not cover cases of that kind, but relates to
matters which are undoubtedly offences under the Constitution.
Mr. HIGGINS.-But the instances I have given serve as an illustration. Under the
American Constitution, which is still more stringent, they have no power to vary the
10 constitution of the jury; the kind of jury must always be the common law jury. In dealing
with federal functions, or functions which come under the federal law, we should not
restrict the Federal Parliament from making its own procedure. I may remind honorable
members that the Federal Parliament will have power to deal with bankruptcy law, with
company law, and other complicated matters. In view of such intricate affairs being
15 delegated to the federal authority, is it not possible that there will be difficult matters of
accountancy cropping up in cases tried under the federal law? I shall, therefore, have much
pleasure in supporting Mr. Glynn in this amendment. I may say also with regard to the
latter part of the clause, that I think it is still more objectionable. Why on earth should the
trial necessarily take place in the state in which the offence is committed? The offence, or
20 alleged offence, may be one which is backed up by the sentiment of [start page 352] the
people in the state in which it is committed, and it may be very hard indeed to get a
conviction there. My view is that what we want to get is justice-to get the law carried
out, right or wrong, and in order to get justice it may often be expedient to have the,
trial conducted in a place far removed from where the offence was committed. For
25 instance, if the customs law happens to be agreeable to eleven out of twelve states, but the
twelfth state objects to the law, and an accusation is brought against a man in the twelfth
state, why on earth should not the trial be removed to where there may be an impartial
verdict given?
Mr. BARTON.-Is not every state big enough to have a trial in?
30 Mr. HIGGINS.-It may be big enough, but every state may have different interests.
Mr. WISE.-A man ought not to be punished for what twelve jurymen think to be
right.
Mr. HIGGINS.-It depends upon what the jurymen are. Suppose they happen to be
twelve pals of his.
35 Mr. WISE.-That is his good luck.
Mr. HIGGINS.-Suppose the twelve jurymen happen to be inclined to favour the

offender. I do not mean to say, as a rule, that a man ought not to be tried among those who
are his neighbours, but I hold that we ought not to put this as a rigid condition within the
four corners of the Constitution Act. I shall support my honorable friend now, and if he
40 succeeds in this amendment, then I shall support him if he moves to leave out the latter part
of the clause.
Mr. ISAACS (Victoria).-I do not think there is any safeguard at all such as the honorable
and learned member (Mr. Wise) has stated. He says it is to safeguard the right of every
person charged with an indictable offence to have a jury. To my mind, it is a very
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proper thing to do. I think, in our present state of development, a man is entitled to have a
jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an
offence it may say it is not to be prosecuted by indictment, and immediately it does it is not
within the protection of this clause of the Constitution. In the United States Constitution,
5 the corresponding clause is "the trial of all crimes, except in cases of impeachment, shall be
by jury," which is a very different thing; so that if the Congress of America were to declare
any act or default to be a crime, necessarily it could not go on to say, or use any words, or
make any provisions by which a person could be deprived of a jury.
Mr. WISE.-Do you think that public sentiment would ever tolerate the punishment
10 of imprisonment for an offence which was not triable by indictment?
Mr. ISAACS.-It is done every day. A man is tried before a magistrate and gets twelve
months or two years' imprisonment.
Mr. WISE.-Two years?

Mr. OCONNOR.-Two years, by a court of summary jurisdiction?
15 Mr. ISAACS.-I will not bind myself down to two years, but it is certainly a year's
imprisonment that he gets.
Mr. BARTON.-Then you ought to have very good magistrates.
Mr. ISAACS.-I will say, two years at all events, and in the Court of Insolvency one
Judge sits and has power to inflict imprisonment to a very considerable period. Whether it
20 is right or whether it is wrong, I think a man should have, for what are known as
criminal offences, a right to a jury. But this clause as it is framed will not conserve that
right. It does not use the word "crime"-it uses the words "indictable offence"; and all the
Legislature has to do is to say that an offence shall be prosecuted by information or shall
not be tried by indictment, and there is no right to a jury at all. The moment the offence is
25 not an indictable offence, then it ceases to be one which comes within the purview of
this clause.
Mr. OCONNOR.-You may trust the Parliament not to increase the list of [start page
353] offences to be dealt with by summary jurisdiction.
Mr. ISAACS.-Then you may trust the Parliament not to wipe out the right to a jury? I am
30 not arguing against the right to a jury, because I think that, except in certain cases of
summary procedure, a man has a right to have a jury, and public sentiment would not at this
day allow that right to be swept away. If this is intended to fetter the Federal Parliament it
partly fails in that intention.
Mr. GLYNN (South Australia).-I would like, in order to have this point a little more
35 carefully considered, to point out that this is one of the original amendments which were
put in the American Constitution. At the meeting of nine states in New York in 1765, in the
Declaration of Rights against England, it was declared that trial by jury, which it was
then feared was being attacked by England, was one of the inalienable rights of every
British subject in the colonies, and many of the states which took part in that
40 Declaration of Rights in 1765 subsequently refused to join unless a similar provision
was put in the American Constitution. I ask on what grounds are we to follow the
precedent of America in this matter? There is no reason why we should do so. It is simply
the copying, without the existence of the same necessity, of a clause in the American
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Constitution. On the ground that you should not fetter the omnipotence of Parliament, I
hold that the words ought to be struck out.
Mr. SYMON (South Australia).-I shall vote with my honorable friend (Mr. Glynn).
Although at first I was inclined to say that these words ought to be put in, I think now they
5 are very much better left out. I think that in cases where it is desirable that a man should be
tried by a jury the Federal Parliament will confer that right. If there are cases in which some
other mode of trial ought to be prescribed, I think we may rest assured that the necessary
provision will be made by the Federal Parliament.
Question-That the words proposed to be omitted stand part of the clause-put.

10 The committee divided-
Ayes ... ... ... ... 17
Noes ... ... ... ... 8

END QUOTE
15 .
QUOTE
Mr. HOLDER.-I will not be drawn off my track, for I will not speak much longer. I will
only say, in reference to the remark of the premier of New South Wales that he wants the
20 Federal Parliament to have federal control in federal things, that to my mind there can be no
more federal question than the question of inter-state riparian rights.
Mr. REID.-Where they exist.
Mr. HOLDER.-Riparian rights which exist either with appeal to the local authority or
with appeal to the British authority, I do not care which-riparian rights appear to me to be a
25 federal question, and therefore one which should be left to the decision of the federal
authority. I hope that it will be possible to find some phrase by which, without any injury to
the self-respect of either party to the dispute, this whole question may be referred to that
authority which alone is competent on evidence to deal with it, which alone will have all
the facts before it-which will be able to adapt its legislation from session to session or from
30 term to term to the changing facts it has before it.
Mr. BARTON (New South Wales).-Perhaps, notwithstanding Sir John Forrest's remarks
about the length of this debate, the fact that I have not occupied the attention of honorable
members for above three or four minutes in the whole course of it may justify me in
seeking to put forward the position I hold, and in putting forward that position the first
35 matter of importance is to inquire, what is the principle about which we are debating? I take
it that we shall not be able to decide many questions which will arise under this
Constitution precisely upon the principles upon which they would be decided in a British
court of justice. That is to say, that there are powers and necessities arising under this
Constitution which must be construed more in the light of American decisions than they
40 can possibly be construed in the light of such decisions, for instance, as are given in
England about navigable waters. Obviously, of course, the decisions about navigable
waters in England will not apply. That criterion which limits the navigable water to the
distance of the ebb and flow of the tide, has plainly no more applicability in this country
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than it has in America. Although it was set up by my learned friend (Mr. Wise) the other
day, I must say at once that I abandon any such contention as that, and I think our rights
will [start page 410] have to be regulated as regards navigation by considerations
something like those which prevail in the courts in America. Now, I wish to take the stand
5 that this sub-section should be struck out, and that no other sub-section should be inserted
in its place. I wish to take the stand that the rights which are contended for, so far as they
are federal, are confined to rights of navigation, and that so far as they are rights of
navigation they should be made applicable to the whole Commonwealth, and not to one or
two rivers of New South Wales. When we are constituting a Commonwealth which is to
10 regulate the trade and commerce of the whole of the federated colonies; when we find that
a part of the regulation of trade and commerce is inevitably the regulation of navigation;
When we also provide that the trade between all these colonies has to be absolutely free-
what are we also providing? We are providing, as I shall show under the American
decisions, that the control of navigation is under the authority which is intrusted with the
15 control of trade and commerce, and the regulation of that navigation is as important in the
case of any navigable water on the whole continent and Tasmania as it is important in the
case of any river which flows between New South Wales and South Australia, or between
New South Wales and Victoria. Now, with reference to this, I should like to quote a
passage from Hare's American Constitutional Law, page 441, which lays down the
20 principle rather clearly:-
We have seen that wherever inter-state or foreign commerce extends, the power of the
United States goes with it for its protection, and may be exercised within the boundaries of
the state when such action is requisite for the attainment of the object. The authority of
Congress is consequently not limited to marine navigation, but includes all the waters of the
25 United States through which intercourse takes place among the states, and with other
nations
That is to say, that, where a vessel sailing from New South Wales to Western Australia
enters a river in Western Australia which is navigable, the control of that river for
navigation is as completely intrusted to the Commonwealth under a provision of this kind
30 as if you had special words for that purpose.
The ebb and the flow of the tide, which is the test of navigability in England, and marks
the line at which the prerogative of the Crown ceases and private ownership begins, is as
much out of place here as it would be if applied to the Rhine, the Danube, the Ganges, or
the Nile; and every stream or lake which can be traversed by ships or steamers, and affords
35 a continuous channel for the transportation of goods or passengers from state to state or
abroad, is as much within the power to regulate commerce as the sounds, straits, and
estuaries which give access to the waters of the sea.
There is the principle laid down in perfectly unequivocal terms.

Mr. GORDON.-Will that apply to rivers which are only intermittent?
40 Mr. BARTON.-I will come to that presently. I will quote a passage from the same
author, which will take my honorable friend a little further in his argument. On page 459 of
the same volume, I find this passage:-
Rivers are a means alike of internal, interstate, and foreign commerce, and may
consequently be regulated both by the states and by the general Government-subject,
45 nevertheless, to the general principle that a state may not adopt any course which is at
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variance with the laws made by Congress, or that will injuriously affect trade with her sister
states or foreign nations. It follows that while the United States may improve the navigation
of a bay or river by removing bars or shoals, or turning the whole force of the current into a
single channel, the right is not exclusive, and may be exercised concurrently by the state.
5 Of course, with this limitation, that where the Commonwealth or the United States
legislates, to that extent the legislation of the state drops. It goes on:-
It was accordingly held in the case last cited, that the state of Alabama might tax the city
of Mobile for the improvement of the bay or harbor on which it is situated, although the
effect was to charge the city with the entire expense of an improvement in which the whole
10 state was interested. [start page 411] There was a case where the state was allowed to tax a
city within the state for the purpose of navigation, because the powers were concurrent;
although, if the power had been once exercised with reference to that part of the state by the
United States Congress, to that extent the right of the state of Alabama would have
disappeared. The report goes on:-
15 The improvement of harbors and bays, and of navigable rivers flowing into them, is
within the power of Congress over commerce; but so long as Congress does not see fit to
act, the way is open to the states.
In these two passages are to be found the principles which here, as much as in America,
would deal with the control of navigation. Let me give one or two instances from the
20 United States decisions to show the way in which this power is practically illustrated. I
find, in reference to the case of Gibbons v. Ogden, 9 Wheatstone, 1:-
Commerce is traffic, but it is also something more. It is intercourse-it describes the

commercial intercourse between nations, and parts of nations, in all its branches. It
comprehends navigation.
25 To show again that that includes navigation, I will cite the case of Cooley versus The
Board of Wardens. I am quoting from Baker's Annotated Constitution, which is a digest of
these cases. It says-
The power to regulate includes the regulation of navigation, which comprehends the
power to prescribe rules in conformity with which navigation must be carried on-Cooley
30 versus Board of Wardens, 12 How.
That shows the extent to which the right over navigable waters is possessed where the
instrument which admits the power of a state admits also of the application of the general
rule of the Constitution. In the case of Pennsylvania versus Wheeling Bridge Company, 13
How.-it is reported:-
35 The River Ohio is a navigable stream, and as such is subject to the commercial powers of
Congress, which have been exercised over it; and if a bridge is so erected across it as to
obstruct navigation it is a nuisance, and an Act of the Legislature of Virginia authorizing its
construction would afford no justification to the Bridge Company.
I also find here the following with reference to a case which I shall cite further on:-
40 If a river is not of itself a highway for commerce with other states or foreign countries, or
does not form such highway by its connexion with other waters, and is only navigable
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between different places within the state, then it is not a navigable water of the United
States, and the Act of Congress for the enrolment and licence of vessels does not apply.
That tends further to answer the doubt of the honorable member (Mr. Gordon). Then I find
another case, The United States versus Coombs, 12 Peters, 72. The report says-
5 Under this clause Congress possesses the power to punish offences of the sort enumerated
in the 9th section of the Act of 1825. The power to regulate commerce includes the power
to regulate navigation as connected with commerce both foreign and inter-state. It does not
stop at the boundary line of the state nor is it confined to acts done on the waters or in the
necessary course of the navigation thereof. It extends to acts done on land which interfere,
10 obstruct, or prevent the due exercise of the power to regulate commerce and navigation
both foreign and among the states. Any offence which thus interferes with, obstructs, or
prevents such commerce and navigation, though done on land, may be punished by
Congress under the general authority to make all laws necessary and proper to execute its
delegated constitutional powers.
15 I think the two passages I have read from Mr. Hare's well-known volume establish clearly
what is included within this power to regulate commerce among the different states, and
with foreign countries, and to what extent in the exercise of that power the Parliament
would be entitled to go, not only to maintain, but to improve navigation. I want to make
these things clear, and I do so frankly to show to what extent I, for one-and I hope other
20 members from New South Wales will go with me-am prepared to go in leaving this power
to regulate trade and commerce unlimited in its widest form, only making this condition,
that if you leave untouched that power to regulate trade and commerce, you serve the whole
Commonwealth [start page 412] alike. We shall then leave the navigation of New South
Wales in the same position as the navigation of every other state; that is, we shall have
25 federal control of navigation. That is the position I take up. It amounts to this: That this
power to regulate trade and commerce is so large-that the powers which can be conferred
by itself on the Parliament by its legislation are so sufficient for the regulation of navigation
and all matters relating to trade and commerce-that the Commonwealth can want no greater
power with regard to navigation. I shall vote against any proposition, any sub-section,
30 which seeks to limit in any way the power to regulate navigation in the waters of one state
or any other state. I claim that it most be co-extensive with the limits of the
Commonwealth. If you make the power co-extensive with the limits of the Commonwealth
you can only justly do that by leaving this power of regulating trade and commerce
untouched and unrestricted. That is the position I take up with regard to navigation. In order
35 to show more fully what this navigation is, I would cite a short passage from the Daniel
Ball case, reported in 10 Wallace, Supreme Court, U.S., page 563. I find these words:-
This was an appeal to the Supreme Court of the United States. The first question presented
for determination was whether the steamer was, at the time designated in the libel, engaged
in transporting merchandise and passengers on a navigable water of the United States
40 within the meaning of the Acts of Congress.
This is the passage of the decision which, I think, will be found material under the present
circumstances. Upon the first of these questions Mr. Justice Field, speaking for the Full
Court, said-
Upon the first of these questions we entertain no doubt. The doctrine of the common law
45 as to the navigability of waters has no application in this country. Here the ebb and flow of
the tide do not constitute the usual test, as in England, or any test at all, of the navigability
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of waters. There no waters are navigable, in fact, or, at least, to any considerable extent,
which are not subject to the tide, and, from this circumstance, tide water and navigable
water there signify substantially the same thing. But in this country the case is widely
different. Some of our rivers are as navigable for many hundreds of miles above, as they
5 are below, the limits of tide water, and some of them are navigable for great distances by
large vessels, which are not even affected by the tide at any point during their entire length.
A different test must therefore be applied to determine the navigability of our rivers,
and that is found in their navigable capacity. Those rivers must be regarded as public
navigable rivers in law which are navigable in fact, and they are navigable in fact when
10 they are used or are susceptible of being used in their ordinary condition as highways for
commerce, over which trade and travel are or may be conducted in the customary modes of
trade and travel on water.
Mr. SYMON.-Does that refer to intermittent or continuous navigation.
Mr. BARTON.-It seems to me that the power which I have shown exists for regulating
15 trade and commerce extends to the improvement of the navigation, and it could be applied
to rivers with an intermittent flow.
Mr. GORDON.-What would be the case when the ordinary condition of the river is that
it is navigable only for half the year?
Mr BARTON.-I should say it applies to their ordinary condition as rivers, not as mere
20 chains of water-holes. The report goes on to say-
And they constitute navigable waters of the United States within the meaning of the Acts
of Congress, in contradistinction from the navigable waters of the states, when they form in
their ordinary condition, by themselves or by uniting with other waters, a continued
highway over which commerce is or may be carried on with other states or foreign
25 countries in the customary modes in which such commerce is conducted by water.
In these extracts I have endeavoured to show how large a power I am willing to concede
with reference to the navigation of rivers, but I claim, that it should be extended to the
navigation of all navigable [start page 413] waters within the limits of the Commonwealth.
There cannot be any reason of justice why they should be limited to rivers which only
30 concern two or three states. If every navigable river is to be treated alike, and to be under
the same law, then let that law apply to its fullest capacity; and subject to the necessary
result of the interpretation of the question of what is a navigable stream at a particular time,
let all this be a matter which shall go to a tribunal far better than the Commonwealth
Parliament or the Parliament of a state-because either of these may be parties to a dispute-
35 the tribunal which alone is not a party to the dispute-the Federal High Court.
Mr. LYNE.-Would not that mean handing over the whole thing?
Mr. BARTON.-It would mean handing over the navigation of the rivers, so far as they
are navigable. To that extent I am prepared to go. In giving a power to regulate trade and
commerce, you are giving a power to regulate navigation.
40 Mr. GLYNN.-Have you defined navigability?
Mr. BARTON.-I have endeavoured to show how far it is defined by the extracts I have
read. They show that a stream, not only which is capable, but which is susceptible, of
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navigation is a navigable river within the meaning of the power to regulate trade and
commerce.
Mr. DOBSON.-Or that joins with other rivers?
Mr. BARTON.-Yes. When I come to the other question of irrigation, I come,

5 notwithstanding my desire to be absolutely conciliatory, to a point which I, as representing
New South Wales, cannot afford to concede. As I have said, I would vote against every
sub-section which did not give a right to the Commonwealth over all navigable streams.
There must be no singling out of New South Wales rivers or of Victorian and New South
Wales rivers, or of South Australian and New South Wales rivers. I should, therefore, vote
10 against any proposition which did not concede the whole right of navigation. But such a
proposition is unnecessary, because the point is bodily conceded already. I must say, on the
question of irrigation, that I regard that as a provincial right.
Mr. HOLDER.-So it is, but inter-state riparian rights is another question.

Mr. BARTON.-There are no such things as between two states when one has a legal
15 right and has not consented to surrender or restrict it in any way by convention or
agreement. Any actual right of a state to the waters which flow through its territory cannot
be voted away from it excepting by its own consent, and therefore in the absence of an
agreement it is beyond contest that the legal right remains. Mr. Holder said-"We have a
right which would be recognised by the Imperial Government" I do not think South
20 Australia has such a right, and more than that, if my memory is not at fault, I have an
indistinct idea that some ten or eleven years ago a reference was made from South
Australia. There was an appeal by correspondence, and they were told that the Imperial
Government could not interfere. I do not wonder then that Mr. Reid asked Mr. Holder how
much he would take in cash for the right. If that has been the experience, I do not suppose
25 the thing would be worth much if it were put up at auction or offered for sale in any other
way. But then we are told that there is a moral right. I cannot concede that there is a moral
right. Take the case a little further, and suppose that Queensland were engaged in the
Convention. Queensland has within her territory a large quantity of the headwaters of the
Darling which she is entitled to use. How should we stand if, in a Convention like this,
30 Queensland being represented, we set up against Queensland the same claim that South
Australia sets up against us?
Mr. HIGGINS.-It would be very just.
[start page 414]

Mr. BARTON.-It might be very just for a man to ask another for a portion of his means,
35 but the other would be entitled to retain what he had got. It might be just to ask it, and if the
other man were afflicted with a peculiar benevolence, he might grant it. But who gave us a
right to come here and be benevolent? We were elected to represent New South Wales, and
not to give away a part of the patrimony of New South Wales.
Mr. HOWE.-To be just?
40 Mr. BARTON.-Yes, in a way which recognises all legal rights as sacred. If you are
going to base the Constitution upon a kind of justice which would mean simply generosity
to South Australia it would be very exceptional in its character.
Mr. HIGGINS.-Supposing that Queensland held back all her water?

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Mr. BARTON.-If she did we should negotiate with her, but we were not sent here to
negotiate about our provincial rights. We were sent here to federalize those things which
are in their essence federal. The application of the water to the land that is in our own
territory is a provincial right, and we have no authority to make it the subject of any federal
5 legislation. Let us endeavour to arrive at a reasonable adjustment. Why not, instead of
South Australia claiming to have not only the navigability of some of these rivers, which
would be readily conceded, but also the use of the water, make an adjustment which is
within every ratio of law, and which is in consonance with federal rights? Let the power of
navigation go to its full extent, as under the provision relating to trade and commerce, but
10 let that which is purely provincial-the application of your own water to your land-be left
outside the compact.
Mr. LYNE.-How would that affect the water in the tributaries?
Mr. BARTON.-It might enable the Federation at some points to build up the banks so as
to improve the channel. It would permit of the stopping, not of the whole stream, but of one
15 or two or several channels in order that the others might be made stronger. Whether it
would include a power to prevent the diminution of the water in any tributary is another
matter. I take it-and I want to be perfectly frank-that the power of the Commonwealth to
keep up navigation would be limited by the extent of the legislation which it enacted itself.
It would have no power to do anything under this provision unless it passed an Act, and it
20 would be limited by that Act. Whether, it would give a power to prevent the diminution of
the flow of a tributary is a difficult question. That brings me back to the real argument,
which is that it is for the Federal Court to decide to what extent the legislation of the
Commonwealth is within the powers of the Constitution, and questions of that kind can
only be decided upon the passage of an Act of Parliament. If an Act is passed dealing with
25 navigation, and the right is given to prevent the taking of water from any tributary, the
question will at once arise for the determination of the Federal Court. What I want to say
about it is this: That I prefer that these matters should be determined in that way, father
than that they should be determined finally either by the Parliament of the Commonwealth
or the Parliament of any state. This right of navigation-I cannot insist upon it too much-is a
30 right which is federal in its nature, and it must be maintained to the extent of the
constitutional power given by the Federal Court. It is impossible to suppose that the
Commonwealth would so exercise it as to destroy utterly the capacity of the several
colonies, or of New South Wales, to use water for irrigation. I am not going to suppose that
the right will be exercised to that extent. But if it were exercised to an extent which
35 undoubtedly interfered with the right to irrigate, there would at once be a matter for the
Federal High Court to try. The course which puts the matter into the hands of the High
Court is the best course for us to adopt. The question of [start page 415] evidence as to
whether a river was navigable, and the question whether legislation with regard to that
navigability unduly interfered with state rights, would be questions for the determination of
40 the High Court. I believe that, if we struck out this sub-section, and left the management of
trade and commerce unrestricted, the High Court is the tribunal by which all disputes would
be decided.
Mr. DOBSON.-Is it not clear that, the navigation of the Darling not being continuous,
that river would not be affected by the provision in sub-section (1)?
45 Mr. BARTON.-No. I do not think "continuous" means continuous in point of time; it

means continuous by way of course. It is a word which applies to the course of the river,
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and not to the period during which it flows. I wish to define the position which I occupy
with regard to this question. I may be going further than some of my colleagues wish to go.
Mr. ISAACS.-Will the honorable and learned member clear up a doubt which is in
my mind? Does he take up this position-that for the purpose of maintaining, and, if
5 necessary, of improving the navigability of rivers, he agrees that the Federal
Parliament shall have power to use the waters of the Darling, even though this use
may deprive New South Wales of some of the water for irrigation purposes?
Mr. BARTON.-I agree that the federal authorities should have power to use the
water to enable them to keep up the navigability which they find, and to improve it to
10 the extent which is laid down in the cases to which I have referred. That may involve
some detraction from the use of the water for navigation purposes, but to that extent I must
go, or else I should not be honest in the matter of federation. I want to leave the whole
question of navigation to the laws of the Federal Parliament, and I wish to see these laws,
when they exceed the rights of the Commonwealth, decided upon by the Federal High
15 Court. I think the only way to secure that is to strike out the sub-section. We want in this
Constitution to secure inter-colonial free-trade. We all admit that there can be no federation
without inter-colonial free-trade, that federation is idle unless between state and state there
is absolute freedom of commerce and intercourse. We propose with respect to the railways-
and I hope we shall carry out the proposal-to constitute an Inter-State Commission, which
20 will also have certain powers with regard to rivers. All the powers of the Inter-State
Commission will be summed up in the maintenance of the trade and commerce clauses of
the Constitution. It is plain that in dealing in this way with the railways, we wish to provide
that they shall be managed so that there shall not be any such preferential rates as will
amount to the infringement of the freedom of inter-colonial trade. If we place the rivers
25 under the same commission, ought we not to leave this provision in its widest state, so that
in connexion with the clauses which apply to the Inter-State Commission we may be sure
that, whether we are dealing with railways or with rivers, entire freedom of trade between
the colonies shall be preserved? If that is so, and if it is incident to the freedom of trade that
the channels of trade should be kept free-which it must be-must it not be clearly the right of
30 the federal power to control navigation? Going as far as I do in this matter, I feel impelled
to assert what is the other side of the question, the other part of the contention. I do not
anticipate danger from the fact that there will be one authority-the federal authority-which
will control navigation, and another authority-the state authority-which will control
irrigation, because when there is any conflict between these authorities the Supreme Court
35 will settle it quickly and finally. In this respect I have no fear. But the claim that it is not
just for New South Wales, not to take more than her share, as it is called, of the waters of
the rivers which flow through her territory, but to deal with them as she [start page 416]
pleases, is a proposition to which I cannot assent, and that is why I think it is desirable that
this provision dealing with trade and commerce should be accepted with all its
40 consequences, and in its full concession to the federal power. But to propose that anything
should be done beyond the adoption of such a provision is to interfere with the rights of the
state which I represent, and which I have no authority to give up.
Sir GEORGE TURNER.-Do they ask you to go beyond that?

Mr. BARTON.-Yes. If South Australia will consent to the striking out of this sub-
45 section, and to the throwing out of any sub-section except that dealing with trade and
commerce, upon which the decisions are undeniable and amply extensive, I shall be content
with that solution of the difficulty; but the moment the representatives of that colony set up
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a claim to the use of the waters of these rivers, I shall oppose it, because I have not received
the permission of the electors to give up their rights.
Sir GEORGE TURNER.-Can you not put the effect of these decisions into the Bill, so
as to satisfy the representatives of South Australia?
5 Mr. BARTON.-The effect of these decisions is to explain the meaning of the words
"trade and commerce," which are identical in both Constitutions, and the best thing to do is
to repeat the words. Where a phrase has been expounded and made clear by decisions upon
principle, the best way to obtain the benefit of those decisions is to adopt that phrase.
Mr. GORDON.-Our courts would not be bound by American decisions.

10 Mr. BARTON.-No; but it would be impossible for them to be bound by the English
decisions in regard to the navigability of rivers. It is inconceivable that the High Court
would deny the applicability of the American decisions. I think every lawyer will agree that
the result of the decisions of the High Court would be palpable beforehand, and that the
court would hold that the power to control navigation must go with the power to regulate
15 trade and commerce.
Sir GEORGE TURNER.-The Judges might say that the rivers here were different from
the American rivers, and therefore their decisions might differ from the American
decisions.
Mr. BARTON.-I do not think that would be said, because the Judges would be shut up to
20 one of two courses; they would have to follow either the American or the English
decisions. It is inconceivable that the English decisions, under which rivers are considered
navigable only so far as the influence of the tide is felt, would be considered to apply here.
The evidence would make such a decision impossible.
Mr. ISAACS.-The decision would be upon an English Act of Parliament.
25 Mr. BARTON.-Yes; but the conditions would make the American decisions much more
applicable than the English decisions ever can be.
Mr. GORDON.-The difficulty is whether or not those American decisions could be

applied to the Darling.
Mr. BARTON.-That is what I am pointing out. The court would have either to limit the
30 definition to the extent of the tidal ebb and flow, or extend it to the susceptibilities to
navigation. There can be no question as to what they would do in the case of rivers like
ours. What I suggest is that there is a course open to this Convention which would be just,
effective, and not aggressive. It is just, because it puts the matter into the hands of the
highest tribunal we are constituting; it is effective, because the decisions show how
35 enormous, and yet how right and federal, the power is that I suggest should be given. It is
not aggressive, because it does not touch the right of any state except those rights which we
claim here to federalize, that is to say, such matters as trade and commerce; it treats all the
rivers alike as between the states.
[start page 417]
40 Surely, therefore, it is the best proposition yet put forward. It sends the matter to the best
arbiter, the best tribunal we have-our own High Court, which we have decided is the best-
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and is it not better that, instead of having conflicts between states, instead of having
discourteous correspondence, there should be a means created whereby, if you adopt this
course, there will be a constitutional mode of settling such questions beyond all doubt, and
for all time? I recommend this decision to the Convention, because it means going much
5 further on the question of navigation than New South Wales has ever offered to go before,
but not further than the interests of the federal power require. I recommend it because it
conserves to New South Wales those matters which belong to her as a province, and which
the federal power should not require from her, because they are not parts of the federation.
This is the true solution of the difficulty, and if we can by this means enable the
10 proceedings of the Convention to go on to their proper close, we shall do a great benefit to
the whole of Australia.
Mr. ISAACS (Victoria).-I desire to make some observations upon this question, but I
feel that at this late hour it is undesirable for me to do so.
Mr. BARTON.-I will move that the Chairman report progress.

15 END QUOTE
.
QUOTE
Mr. ISAACS (Victoria).-I beg to move-
20 That the sub-section be omitted, and that the following be inserted in lieu thereof:-
The navigability of rivers which by themselves or in connexion with other rivers are in
fact permanently or intermittently navigable for trade and commerce with other countries or
among the several states. But so that no state shall be prevented from using any of the
waters of such rivers for the purposes of conservation and irrigation to such extent as in the
25 opinion of the Inter-State Commission is not unjust or unreasonable, having regard to the
needs and requirements of any other state for such purposes.
I perceive with a considerable amount of pleasure and satisfaction what seems to me to be

an approach between the representatives of South Australia and the representatives of New
South Wales, in regard to this very difficult and important question. When the discussion
30 was first opened by my honorable friend (Mr. Gordon) in his very able speech, and he was
answered by some of the honorable members from New South Wales, it appeared that the
distance between them was very, great indeed. The claims of South Australia were made to
rest on grounds that I should find it very difficult to support to their full extent. I must also
say that the answer given by New South Wales seemed to be altogether too
35 uncompromising. I believe I am correct in stating that there are now indications of a
considerable abatement on both sides of the position originally taken up. But I am not quite
clear even now as to the extent to which this approach has been made. At the first it
appeared that we from the other colonies would have to take up the very unenviable
position of arbitrators between altogether unwilling disputants, but I believe, and I hope,
40 that in the end we may be able practically without any real difficulty, and perhaps
unanimously, to adopt some scheme-whether it is that which I have suggested, or some
other-that will commend itself as being the best obtainable for both colonies. It would be
very unfortunate if the Convention broke up with the feeling that the discussion of this
matter had only eventuated in utter disappointment and soreness to both sides. I agree with
45 those honorable members who deplore the possibility of there remaining any source or
point of friction-continuous friction-and perhaps eventually ill-feeling, which would deepen
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as time went [start page 419] on, with regard to this question. It is important that we should
deal with it now to some extent, and that we should do so in the light of experience. I think,
therefore, that I shall be justified in bringing the teachings of experience a little more fully
before the Convention than has hitherto been done, because the future of Australia may
5 depend in a very large measure upon the course we adopt. I regard this as a federal
question, and it is on this ground that I should hold with those who propose to deal with it
here. I must say also that if it became necessary to decide on the point, I could not agree
with Mr. Gordon and some others of my honorable friends from South Australia who rest
the claim upon international law. Treating it as a matter between utterly independent States,
10 I am not able to satisfy myself that there is any such thing as a right in the question. I can
find no analogy. I have looked again at the various authorities, including the very excellent
work of Mr. Hall, to which Mr. Gordon referred. Mr. Hall, we know, was one of the first
international lawyers of Europe, and his death has left a gap that it will not be easy to fill.
He is most distinct in his opinion that no such right exists. It only applies to navigation at
15 the best-to the free right of navigation. But even as regards that point he rests it purely on
convention, and not by any means upon international law. He is followed in that view by
another recent international lawyer, Dr. Walker, of Peterhouse College, Cambridge, and a
few words from his work will convey, very shortly, but clearly, what I believe to be the
result of the later international law. On page 37 of his Manual of Public International Law,
20 1895, he says-
These various Acts-
That is, treaties and negotiations.
render clear the fact, to which the remarks of the Russian, Austro-Hungarian, and German
representatives at the Conference of Berlin were calculated to draw attention, that,
25 although-the doctrine of the freedom of navigation of great rivers has advanced in general
favour, the new order has arisen by virtue of particular treaty entered into by the interested
nations, not by the outright recognition of a general law, and the right of riparian states to
regulate the traffic has been, in each instance, formally acknowledged. In no case have we
witnessed a recognition of any natural right such as that which the United States, in
30 harmony with her earlier Mississippi experiences, asserted in the navigation of the St.
Lawrence in 1824.
At the conference held in Berlin in 1885, in relation to the African rivers the Congo and
the Niger, although Count Bismarck did assert that the expectation of the states to have free
navigation through the territories of other riparian states had passed into the domain of
35 public law, his view was dissented from by every other representative present. We may
take it that there is no such right. There is undoubtedly what has been properly called an
increasing and more enlightened policy of permission on the part of states through which
rivers pass. There is a disposition on the part of those states, for their own benefit, as well
as for comity with other nations, to permit of free navigation through their territory, not
40 only of the rivers, but also now of some of their tributaries.
Mr. BARTON.-That is navigation.
Mr. ISAACS.-Yes. It is subject to the consent of the nations, and it is limited purely to
navigation, and I may say that, even as regards navigation, the somewhat freer permission
that was granted in regard to the Elbe and another river by the Congress of Vienna in 1815
45 has been departed from, and the rule made more rigid, by an arrangement under which
vessels have to pay customs dues at every frontier they pass on the river. So far as this
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claim is based upon international law or natural right it has never been admitted. In one
instance it was asserted, as a matter of inherent necessity and of natural right, by the United
States, in regard to the Mississippi, in relation to Spain. It was also asserted in connexion
with [start page 420] the St Lawrence, but Great Britain never admitted it, and when, in
5 1854, she entered into a treaty with the United States to permit free navigation she
expressly stipulated that she could withdraw that permission whenever she chose. It was
only in 1871, when the Geneva arbitration claims arose, that Great Britain, taking
that noble stand she has taken on many occasions of offering peace to the world, while
standing firm when occasion demanded, agreed to allow for ever the free navigation
10 of the St. Lawrence to the people of the United States. Great Britain then obtained a
corresponding right with regard to the Yukon, the Stikine, and the Porcupine Rivers, now
celebrated in connexion with Alaska. These were mutual concessions.
Mr. BARTON.-All you can say to another nation is-"Will not you come to some
agreement?"
15 Mr. ISAACS.-Yes, and the mutual concessions in this case were limited absolutely to
navigation. I do not think any one could put his hand upon any treaty which goes beyond
that. Passing from the question of international law, my honorable friend (Mr. Gordon)
touched upon a point which I think invites the deepest attention of the Convention from
another aspect. It had relation to what is called the new law of riparian rights in the and
20 area of America. I believe that this matter has hitherto received an all too limited notice.
The question is one which offers for us the most interesting consideration, and, as a
Convention of representatives of all Australia, we ought to pay the most careful attention to
the experiences, more especially of late years, of that important region. This question is so
important that, in the opinion of many of the greatest statesmen of the United States, it is
25 threatening to produce a peaceful revolution of their institutions. It has already overturned
many cherished ideas, it has absolutely reversed the British common law of riparian rights,
and, at the present time, it is setting up a series of problems which America has yet to face.
The pamphlet of one of her most noted writers is causing a demand in some quarters for a
revision of the Constitution.
30 Mr. DEAKIN.-In California alone the introduction of this principle of the British
common law into their Constitution cost them tens of millions of dollars.
Mr. ISAACS.-Yes; but that has been altered. The United States is almost equally divided
by the 100th meridian of latitude. The population of the whole territory is about 70,000,000
people, of whom about 64,000,000 live to the east of the 100th meridian, while the
35 remainder live to the west of it. In what are known as the eastern states, we nave all the
civilization of Europe. We have the institutions that we know in British communities-the
laws, generally speaking to which we are accustomed. All the great problems of our
civilization are there. We have great cities with their social difficulties, just as they exist in
the British Islands, and the conditions are becoming still more like those of the British
40 Islands every day. On the west of the 100th meridian a wholly new organization of society
has appeared. It is true the climate is varied and attractive, that they have every range of
physical condition from Montana on the north to New Mexico on the south, and from
Nebraska on the east to California on the west. But prolific as the soil is, diversified as the
climate is, great as are their opportunities in many respects, in this one particular they are
45 severed from the civilization of the east. The region is arid; it is rainless.
Mr. DEAKIN.-Relatively.
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Mr. ISAACS.-It is practically rainless; it is a desert. People cannot live thereat least they
cannot thrive there under the conditions which prevail in the eastern states. The difference
in population bears witness to that fact. A tremendous strain is being put upon the United
States, both constitutionally and socially, by this [start page 421] very fact. Some years ago
5 an attempt was made, and with success, to alter these conditions. In the west there are some
seventeen states, containing 800,000,000 acres of arable land, from 10,000,000 to
20,000,000 acres of which have been reclaimed and turned from a parched desert into
prolific arid smiling gardens.
Mr. SYMON.-The land has been made to blossom as the rose.
10 Mr. ISAACS.-Yes. Horticulture, agriculture, and pastoral pursuits are being followed
with a greater or less degree of success. This country contains the territory to which my
honorable and learned friend referred the other day, that through which the Rio Grande and
its tributary the Pecos flow. I am not going to refer to the great work which has been done
by the use of artesian water in that district; I wish to confine my remarks more particularly
15 to the irrigation which has been carried out from the rivers. Under the common law of
England, as we know it, the riparian owner lower down the stream has a right to have the
flow of water above undiminished to any appreciable degree. The upper owner must not
pollute, he must not obstruct, and he must not sensibly diminish the flow of water. In 1848,
when gold discoveries first began to attract attention in California, the miners wanted water
20 to work their claims, but they found that the exigencies of the situation prevented them
from carrying on their work and developing the resources of the country if they adhered
rigidly to the English common law affecting riparian rights. They therefore set up their
own customs, and taking water from the rivers they did not return it to them. Cases were
brought into the courts, and the courts immediately said-"We cannot be bound by the
25 customs and the common law of England in this respect, because our circumstances are
wholly different from those of England. In England the climate is moist, and is well
supplied with water, in fact it is to a great extent over supplied with water. The problem
there is, not how to get water, but how to get rid of it-how to drain the land. We know that
Drainage Acts have been passed there, and commissions have been appointed to inquire
30 into the best means of dealing with this difficulty. But when we come to California the
circumstances are wholly reversed. The problem here is how to get water, how to conserve
it, and how to conduct it on to the land." They, therefore, held that the miners were entitled
to use the water of the rivers irrespective of the claims of those below.
Mr. GLYNN.-As against men who did not want to use the water lower down.
35 Mr. ISAACS.-The law of riparian rights there is that the first man to appropriate the
water has first claim to it.
Mr. OCONNOR.-Is that fixed by judicial decision or by statute?
Mr. ISAACS.-It has been fixed in every way. It was first fixed by the recognised
customs of the miners; it was then acknowledged by the judicial decisions of the state
40 courts. It has also been acknowledged by the legislation of the various states, by the
legislation of the United States, and by the Supreme Court of the United States. In every
possible way has this new law of and America, which is the only law which would have led
to its conquest-to use an expression employed the other day-been acknowledged.
Mr. DOUGLAS.-Does it not apply to mining only?
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Mr. ISAACS.-No.
Mr. DOUGLAS.-It first applied to mining.
Mr. ISAACS.-In California it arose out of the requirements of the miners, and the course
pursued by the courts of California was followed by the courts of other states; and a law
5 based upon the inherent necessity of the situation has been adopted throughout, I believe,
the whole of the arid regions of America, viz., the western states.
Mr. DOUGLAS.-But this is not the law of America.
[start page 422]
Mr. ISAACS.-It is a law which has application not only to mining, but which it has been
10 found necessary to apply to milling, to manufacturing, to horticulture, and to agriculture.
Without it the great region of which I am speaking would be uninhabitable, and one-half of
the United States would be incapable of development. It has been said-and the saying is one
which may be repeated, because of its applicability to a great part of Australia-by a man
who is called a genius in regard to these matters-that irrigation is not a substitute for rain,
15 but that rain is a substitute, and a mighty poor one, for irrigation. What has irrigation done
for the western states of America? It has not only made occupation and development
possible, but it gives certainty of production.
Sir WILLIAM ZEAL.-What has all this to do with the question we are discussing?
Mr. LYNE.-The honorable and learned member is arguing in favour of the position taken
20 up by New South Wales.
Mr. ISAACS.-Irrigation in these states has given certainty to the operations of the
farmers, the agriculturists, and the horticulturists.
Mr. GLYNN.-The law that the honorable and learned member speaks of seems to me
very much like the right of the first robber.
25 Mr. ISAACS.-The reason why I am referring to this matter so closely is that I am in

favour of putting irrigation before navigation. I think that the Convention should support
the view that irrigation has a prior claim to navigation, so far as the rivers of this country
are concerned.
Mr. LYNE.-The honorable and learned member has not made that claim.
30 Mr. ISAACS.-Yes; I think I have.
Mr. SYMON.-We are all agreed as to the general principle, but there are exceptions.
Mr. ISAACS.-I want to point out why in the amendment I have proposed I have placed
irrigation before navigation.
Sir WILLIAM ZEAL.-The diggers in this colony have been doing it for the last 40
35 years.
END QUOTE
And
QUOTE
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Mr. ISAACS.-In the case of Harris v. Harrison, 93 California, 676, it was decided by the
Supreme Court of California that the common law right of riparian ownership which
prevails in British communities has been modified and enlarged, so as to secure reasonable
user, and that the reasonableness of the user depends wholly upon the facts. In this
5 particular case, both the plaintiff and the defendant required the use of the water to-the
extent of the full power of the stream, and the court said, as the courts have said in other
cases-"We must apportion these rights relatively, and the only way we can do so in this
case [start page 423] is to say that, at certain times, the plaintiff shall use the whole force of
the water, and at other times the defendant." In other cases these reasonable rights have
10 been adjusted, not by time, but by quantity; but in all cases in later years, so far as I have
been able to discover, and as late as 1895, the courts have set themselves to secure a
reasonable and proportionate use of the water.
Dr. COCKBURN.-What courts does the honorable and learned member refer to-they
state courts or the Federal Courts?
15 Mr. ISAACS.-The state courts. I may point out that the new law of which I am speaking-
the western states law-has been recognised in the United States courts, and I may mention
the name of a case in which it is so recognised-Jennison v. Kirk, 98, United States, 453.
Mr. BARTON.-These irrigation laws of the states are, of course, untouched by the
Constitution; they are upheld.
20 Mr. ISAACS.-Of course they are upheld, but the United States law has, by various
alterations, commencing in 1886 and coming down as late as 1890, recognised this right of
prior appropriation. I do not want to dwell any longer on this point than is necessary, but I
want to urge that the new law has been recognised, and that its reasonable exercise hat been
recognised. Now, how does that apply here? If we merely strike out sub-section (31) and
25 leave the court to exercise its jurisdiction upon the first sub-section of clause 52, it means
undoubtedly that navigation is to be the prior consideration, and it means more than that, as
far as I can judge, because it means that as long as a state-say, New South Wales-leaves
sufficient water for the navigation of the river, it may use all the surplus water for
irrigation of its own lands without regard to the claims of South Australia. I do not
30 think that was intended by my honorable friends from New South Wales, but it would, I
believe, have that effect. I am not afraid of putting in a special clause to carry out what I
believe to be our intention. We have already limited sub-section (1) in a way in which it is
not limited in the United States, by making special references to customs and excise,
navigation and shipping; and I would say to the leader of the Convention that we ought not
35 to be afraid to put in another clause with a view to making this matter definite and certain.
"Navigation and shipping" is taken from the Canadian Act. It is specially mentioned there
besides trade and commerce, but the Canadian Act provides, in the first place, that the
Dominion Parliament may legislate in all cases whatsoever, and then, without prejudice to
the generality of that power, it goes on to enumerate certain other matters, so that I do not
40 think that the mere adding another clause, specifying the power, would in any degree depart
from the course we have already adopted. Now, I should like to say this that I would not
have urged another suggestion if I could have found, in any of the proposals previously
made, something that would have met my view altogether. Mr. Symon's suggestion comes
nearest to it, but I think that that suggestion would leave New South Wales just as it is. I
45 think it would leave New South Wales with the power to take all the water that it requires
for irrigation, irrespective not only of the claims of South Australia for irrigation, but also
of the claims of South Australia as regards navigation.
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Mr. LYNE.-And you want to take that power away, I suppose.
Mr. SYMON.-I do not think my amendment will do that.
Mr. ISAACS.-I would like my honorable friend to consider his suggestion from that
point of view. What I think is fair is this-we should vest in the Commonwealth the
5 navigability of these rivers.
Mr. REID.-What does the word navigability mean?
Mr. ISAACS.-I should say that it means everything connected with the navigability of
the rivers, as we ordinarily understand the word.
[start page 424]

10 Mr. REID.-That shows how vague the term is.
Mr. ISAACS.-It means everything connected with the maintenance of the navigability of
the rivers-their improvement and control.
Mr. LYNE.-And of the tributaries?
Mr. ISAACS.-No, only rivers that are themselves highways of commerce for inter-state
15 intercourse.
Mr. LYNE.-How about the tributaries that carry volumes of water into the main river?
Mr. ISAACS.-I do not propose to touch them.
Mr. LYNE.-But the navigability of the rivers depends on those tributaries.

Mr. ISAACS.-Then it would give the control of them which the Federation has under the
20 first sub-section of clause 52; it would make no change in that respect. But still, in
intrusting the navigability of these rivers to the Federation we should place irrigation in the
first position, and we should leave each state to exercise its own will even independently of
navigation, so far as regards conservation and irrigation, and limited only by one
consideration, namely, the corresponding requirements and rights of other states.
25 END QUOTE
.
QUOTE
Sir GEORGE TURNER (Victoria).Like my right honorable friend (Sir John Forrest) I
30 have been halting between two opinions in connexion with this matter. My sympathies are
undoubtedly with South Australia. At the same time, I cannot conceal from myself the fact
that our friends from New South Wales have urged strong arguments in favour of their
views, and my great desire all through has been to endeavour to reconcile the conflicting
interests, so that we might, if possible, arrive at a conclusion which would be fair and
35 equitable to all the states concerned. We are told that we may rest on subsection (1). That
sub-section appears to be somewhat on the lines of the provision in the American
Constitution, but I do not think it is wise to ask any state entering into a partnership with
other states to risk such a large question as this undoubtedly is on the interpretation which
hereafter may be put on the words we use by any Federal Court or by the Privy Council;
40 because, as distinctions and differences have been drawn in America so as to induce them
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to practically reverse the common law of England with regard to riparian rights, so here,
taking the differences in our circumstances and the differences in regard to these rivers and
their navigability and their use for various purposes, we cannot be certain-it is a matter of
utter impossibility to be certain-that the court here would follow the decisions given in
5 America. They might possibly say that they would prefer to follow the decisions given in
England, and not to recognise those, given in America. As there is that great doubt about
the matter, it is our duty, if we possibly can, to put in the Constitution words which
will render our desire and our meaning fairly certain and intelligible. I also mentioned,
when I spoke shortly on this matter some time ago, that in my opinion, in the interests of
10 the colonies, irrigation should be the first consideration, and navigation the second. In
speaking of irrigation, of course I include the conservation of water. We, in Victoria,
require water for irrigation purposes perhaps more than they do at the present time in New
South Wales; there they require water more for conservation. But as the years roll on, and
our population increases, we must all recognise that eventually very large quantities of
15 water will be required for conservation and for irrigation. If we put navigation in the
forefront, what will be the result? Irrigation and conservation may hereafter perhaps be
ruined. But if we put irrigation and [start page 488] conservation first, what will happen to
navigation? At the worst, the carriage of goods may be delayed for a few days, or for a few
weeks, or a few months. That is the worst, in my opinion, which possibly can happen to
20 those who are urging so strongly that navigation should be our first consideration.
Mr. HOLDER.-It means an absolute diversion of trade in many cases.
Sir GEORGE TURNER.-Not necessarily so.

END QUOTE
.
QUOTE
Mr. GLYNN.-Thank you, sir. I was saying that a point of doubt arises as to whether the
character of a river, as to its being navigable, would be determined by English law or
American law, and, even if it is held that the American law applies, still there is a doubt as
30 to whether rivers that are only intermittently navigable come within the scope of the
American decisions. By English law, I believe, the navigability of a river is determined by
the tidal ebb and flow of the river at some point. There are two Canadian decisions not
directly on this point, but the analogy of which may be followed-one given in 1883, and the
other in 1896, and they seem to lean to an interpretation that would be in consonance with
35 the English common law. The decision of 1883 speaks of "tidal" and "navigable." There
was a decision on the point with regard to the question of the fisheries in 1896, which also
referred to these rivers as tidal and navigable. The question of irrigation, of course, did not
crop up in Canada; but so far as there is an interpretation given by which we may be guided
in an English court of judicature, that interpretation would hold good in English common
40 law. It was an assumption, in the course of argument, made by the Judges, that the question
of navigability in connexion with rivers was always referred to by the use of the words tidal
and navigable. Even if they were merely obiter dicta on the part of the Judges, we must be
certain that they are not also emphatic declarations of the English law on the subject. In
America, we have a decision which extends the idea of navigability, by making the
45 essential condition the fact that a river is navigable irrespective of whether there is an ebb
and flow and a continuity of the river as a stream of commerce. There have been some
other state decisions on the point in America. There was one that laid it down that so long
as a stream was, for some period of the year-or some seasons I think the word was-capable
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of being navigated for the transfer of logs, to that extent it was a navigable stream, and
came under the decision. That is a decision that seems to indicate that the Darling would
come within the American decision. But the point is doubtful, because it is only a state
decision, and because the question of intermittency there, and in any other decisions which
5 I have seen, was limited to intermittency within a year; but, in the case of the Darling, we
have a stream whose navigable character might be destroyed
END QUOTE
And
QUOTE
10 Mr. HIGGINS.-Mr. Reid will abandon his amendment for mine, perhaps.
Mr. WISE.-It would be an express declaration in the Constitution that the rights of each
state in regard to these matters remain for the future exactly as they are.
Mr. GORDON.-And we are surrendering rights in all other directions except one.
Mr. REID.-Are we not all doing that?

15 Mr. WISE.-It is all a matter of surrender, but there is no surrender in respect of these
water rights by any colony. That is to say, the right to control navigation is a right which is
surrendered by every colony, not by one at the expense of another. And if we do desire
honestly to keep irrigation separate as a matter of [start page 588] provincial concern, what
can be the objection to making that statement definitely in the Constitution? My objection
20 to the previous amendment was that it attempted to lay down a hard-and-fast rule for the
guidance of all future time, for the guidance particularly of the Federal Parliament, when
we could not possibly forecast the necessary physical conditions, which might determine
the relative importance of the two questions of irrigation and navigation. But if we have
refrained from that, and if we are simply making an assertion that things are to remain as
25 they are, then much of the objection I had is removed. The objection I have to the present
amendment is that it is a serious interference with provincial rights. It provides that no state
or citizen shall be prevented from taking water. It seems to me clear that this being an
Imperial Act, passed by the Imperial Parliament, the result would be an absolute destruction
of the right of any provincial Parliament to legislate over its own waters. As the law now
30 stands, a man may not take water as he pleases; he maybe prevented, because he must pay
regard for the rights of other riparian owners. If we put this provision in the Constitution,
which will be an Imperial Act, that no citizen is to be prevented from taking water, we
abrogate the common law entirely.
Mr. ISAACS.-Strike out the words "or citizen."
35 Mr. WISE.-That would remove that part of my objection. It is a mere matter of drafting.
It appears to me that the form of the amendment, as I suggest it, makes it much more clear
that the intention of the committee is simply to leave things as they are.
Mr. SYMON.-What is your amendment?

Mr. WISE.-My amendment is as follows:-
40 Nothing in this Constitution shall affect the exclusive right of each state to legislate upon
the subjects of water conservation and irrigation within its own territory.
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Mr. ISAACS (Victoria).-I rather favour the amendment submitted by the Premier of New
South Wales, with this exception, that I think the words "or citizen" should be struck out.
Mr. REID.-I am quite agreeable.
Mr. ISAACS.-A great deal of difficulty will be cleared away by the excision of those
5 words. It will leave the matter in this position: That, by reason of Mr. Glynn's addition,
there will be no doubt, I take it, that the Federal Parliament will have a right to legislate as
to the navigability of these rivers.
Mr. SYMON.-No; only in so far as relates to the maintenance of the cardinal principle of
the Constitution-the freedom of trade and commerce.
10 Mr. ISAACS.-That is quite right, but, according to the whole of the decisions in
America, this provision will leave it absolutely to the discretion of the Federal Parliament
to say how far the control of the waters is necessary for that purpose. There is no power in
the United States to say that you have gone too far. It is quite right to state that they are
only to legislate as to the navigability of the rivers for the purposes of trade and commerce,
15 but the question of the extent of the control to be assumed by the Federal Parliament is a
political one, as the courts have decided time after time.
Mr. SYMON.-Do you think the control of the freedom of trade and commerce, which is
the basis of the Constitution, ought to be cut down at all? It is a little too late to raise this
issue.
20 Mr. ISAACS.-I am saying that if you give the power to the Federal Parliament with
regard to trade and commerce it ought to be complete, but I say, as I said beforehand for the
reasons I gave the other day-that we must place in the forefront the question of irrigation
for the purpose of production.
Mr. SYMON.-Why cannot you trust the Federal Parliament?
25 Mr. ISAACS.-Mr. Wise has raised a very important question as to whether any [start
page 589] individual could appeal to the Supreme Court in the absence of any federal
legislation to compel the removal of obstructions? I want to refer to a very late decision of
the Supreme Court of the United States, which, to my mind, goes to show most
conclusively that that cannot be done. The case is that of the Willamette Iron Bridge
30 Company v. Hatch, which was decided in 1887, and is reported in vol. 125 United States
Reports, at page 1. I am quoting now from page 8:-
The power of Congress to pass laws for the regulation of the navigation of public rivers,
and to prevent any and all obstructions therein, is not questioned. But until it does pass
some such law, there is no common law of the United States which prohibits obstructions
35 and nuisances in navigable rivers, unless it be the maritime law, administered by the courts
of admiralty and maritime jurisdiction. No precedent, however, exists for the enforcement
of any such law; and, if any such law could be enforced (a point which we do not undertake
to decide), it would not avail to sustain the bill in equity filed in the original case. There
must be a direct statute of the United States in order to bring within the scope of its laws, as
40 administered by the courts of law and equity, obstructions and nuisances in navigable
streams within the states.
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The matter seems to be absolutely clear. Other decisions are referred to in this case, and it
is established in the United States that until Congress does legislate there is no power by
which the courts can enforce the removal of obstructions.
Mr. SYMON.-Is there any decision in the United States or anywhere else to the effect
5 that a dam for irrigation would be an obstruction?
Mr. ISAACS.-I am not aware that there is a precise decision, but I have no doubt that
any abstraction of water from a river which reduced its navigability would be held to be an
obstruction to navigation. You can obstruct navigation by taking water away. In fact, that is
the most effectual means of doing it. It seems to me that some such provision as that which
10 the Premier of New South Wales has introduced is necessary, unless we are going to say
that we are willing to abandon the claims of irrigation.
Mr. REID.-That is the one point.

END QUOTE
.
QUOTE
Mr. DEAKIN.-There is no Marshall in our Constitution, you know.
Mr. SOLOMON.-And no courts of America.
Mr. BARTON.-There are stronger words in our Constitution.

20 Sir JOHN DOWNER.-The courts of America, Chief Justice Marshall, and the eminent
men who followed him founded their decisions on the common law of England. They had
no statute law to assist them; the common law of England was their basis, and on that their
decisions went. So it is with continental states. The international law, hard as it is to define,
still existing with some degree of precision, is founded by analogy in reality on the ordinary
25 riparian rights of persons on the banks of a stream. There the streams are navigable; the
important interest is navigation; the one thing to be conserved is navigation, and navigation
accordingly is always made the criterion. There is no question there of taking water for any
other purpose. In America, as was pointed out very ably by my learned friend (Mr. Isaacs),
in that very excellent speech in which he satisfied many of us, but the reasoning of which
30 he has not altogether adhered to since, I think, there was a different ground for decision.
There, in many instances, navigability was the test, but in the more and country, as he
pointed out, navigability was not always the test; and so here under these general terms, if
we leave the Parliament power of regulating trade and commerce, they will be able to
regulate everything that carries trade and commerce.
35 Mr. BARTON.-All the success they have had in water conservation and irrigation in
America has been in face of the power to regulate trade and commerce.
Mr. DEAKIN.-Yes, but on rivers where the conflict could not occur.
Mr. REID.-Where the point would not arise.

END QUOTE
40 .
QUOTE
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Mr. HIGGINS.-Yes. If you look at the first amendment of the Constitution you will find
that there is no prohibition on a state doing this thing, but there is a prohibition on Congress
against either making a law prohibiting the free exercise of any religion, or for the
establishment of a religion. I add, here, "or imposing any religious observance." It is quite
5 true, as Mr. O'Connor says, one would have thought that in the absence of an express
power given to Congress to do these things, there would not be power to do them, but I had
the opportunity yesterday afternoon of indicating the course of the decisions of the courts to
the leader of the Convention, and he knows how very largely from single expressions used
in the Constitution there have been inferential powers deduced. In consequence, for
10 instance, merely of a decision of the Supreme Court that that country was a Christian
country, there was a law passed and carried into effect prohibiting the opening of the
Chicago Exhibition on Sunday, so that there is no doubt this will provide against a real
subsisting danger, and I am moving this amendment with the view of reassuring a number
of honest people here who, having regard to the experience of America, are gravely
15 objecting to the insertion of any words in the preamble of the Constitution. I can foresee
that that preamble will be carried, and I wish to provide against having a number of people
voting against the Constitution on the ground that it will introduce a number of difficulties
which, in this new country, ought to be laid for ever. I beg to move my first amendment-
That the words "nor shall the Commonwealth" be inserted after the word "not."
20 Mr. GORDON (South Australia).-I think there was a good deal of force in the remarks
that fell from the Right Hon. Sir Edward Braddon yesterday afternoon, shortly before the
Convention adjourned. So long as this prohibition only extends to the mere mental exercise
of faith, I am with Mr. Higgins; but I do not think that the prohibition should extend to
interference with the exercises of faiths that are carried to lengths which are objectionable
25 from a sociological point of view. I do not know whether any such [start page 659] extreme
cases as those mentioned by Sir Edward Braddon would occur in this community, but it is
quite likely that the faith healers who have been punished in England for failing to provide
medical attendance and medicines for their sick might come here, and I would like to know
whether a prohibition of this sort will interfere with faith healers who think that the cure of
30 their sick should be made, not a matter of medical advice and medicine, but a matter of
faith and prayer?
Mr. OCONNOR.-They are subject to the English law.
Mr. GORDON.-Yes, they are; but whether they are subject to the common law or the
statute law of England, I do not know. What I would like to know is will this provision
35 prevent such people, if they come here and act in the same way as they have acted in
England, being prosecuted here?
Mr. SYMON.-It might do so.
Mr. GORDON.-Then I think we ought to safeguard it to this extent, directly the exercise
of religious observances injures the community or any person in the community, I think
40 that both the state and the Commonwealth ought to have the right to interfere.
Mr. SYMON (South Australia).-I agree with the honorable member. Of course, what we
want in these times is to protect every citizen in the absolute and free exercise of his own
faith, to take care that his religious belief shall in no way be interfered with; but one would
think from reading this clause, which appears to me objectionable in every possible way
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Mr. HIGGINS.-Do you mean the clause in the Bill?

Mr. SYMON.-Yes, I am with my honorable friend in desiring to have the clause
amended. The idea of the clause is good enough-that is, the preservation of absolute
freedom of religious belief, but the mode in which it is carried out in this clause seems to
5 me to be obnoxious.
END QUOTE
.
QUOTE
10 Sir JOHN DOWNER (South Australia).-The Drafting Committee, who were, I think,
responsible for these words, very carefully considered the relative conditions of the
Legislature in America and as they will be in this Commonwealth under the Crown. They
inserted this clause so as undoubtedly to give the High Court jurisdiction over some body
or other, and by that means prevent an abuse of the Constitution.
15 Sir JOHN FORREST.-What would they do with him? Would they put him in prison?
Sir JOHN DOWNER.-They would prevent him acting, or they would make him act, as
the case might be. In America this question could not arise. There the Supreme Court can
enjoin anybody who invades the Constitution. There is no king or queen who cannot be
enjoined, and on whom the Supreme Court cannot operate. In America the revenues are not
20 in the hands of a sovereign, who cannot be enjoined or ordered. The American revenues are
in the hands of those who can be served with a writ of mandamus.
An HONORABLE MEMBER.-They can be impeached.
Sir JOHN DOWNER.-Yes, but they are also liable to other writs. The Drafting
Committee may have arrived at an erroneous conclusion, but we gave the best that we
25 could. We did not take the view of Sir George Turner that there need not, of necessity, be
an officer of audit; we rather thought, as a matter of course, that business could not be
carried on without an Audit department, and we thought that in the Audit-office all would
not be equal, but that there would be a chief officer. Probably in a clumsy way, but in the
best way we could think of, we endeavoured to provide machinery so that the Constitution
30 should not be set at defiance even by the Crown.
Mr. HIGGINS.-How would this give more power than exists at present?
Sir JOHN DOWNER.-By naming a person who can be enjoined. You cannot enjoin the
Crown.
Mr. ISAACS.-Was it intended to guard state rights?
35 Sir JOHN DOWNER.-It has nothing to do with state rights; it is to guard the
Constitution.
An HONORABLE MEMBER.-It is to give control over expenditure.
Sir JOHN DOWNER.-It is intended to give the High Court the authority which the
Supreme Court in America has to prevent invasions of the Constitution, but upon a proper
40 application.
Mr. HIGGINS.-The court has that power even if it is not mentioned.
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Sir JOHN DOWNER.-The court has to be set in motion by somebody, and there must
be somebody to command. Under the colonial law at present, you [start page 903] could not
issue any prerogative writ against an officer of the Crown.
Mr. HIGGINS.-If he is doing an illegal act, you can enjoin any officer.
5 Sir JOHN DOWNER.-I would not like to state that proposition so broadly as my
honorable friend does. On the contrary, my experience being more under common law than
equity, and those writs having more regard to common law, I may say that I have found the
greatest difficulty in discovering whom to fire against. I found the question of the Royal
prerogative standing very much in the way. In many proceedings we have found it almost
10 impossible to discover whom we should go against. At all events, that was the point of
view that operated in the minds of the Drafting Committee in inserting this clause. It had no
relation to local rights or influences.
Mr. HIGGINS.-Is it not your object to fire against or to prosecute the man who pays the
money and not the man who audits the accounts?
15 Sir JOHN DOWNER.-We want to prohibit the man who pays the money wrongly.
Mr. BARTON.-And to prevent a person giving authority to pay the money.
Mr. HIGGINS.-The audit comes after payment.
Sir JOHN DOWNER.-No doubt, but we wanted to enjoin at the very earliest possible
stage, and that was at the stage when the direction was given to pay the money. If
20 honorable members can suggest any better way of doing the same thing, or, if they do not
see the difficulty, I shall be glad to hear them, but there are difficulties, and we thought of
many instances where a coach and four might be driven through the Constitution, by reason
of there being nobody whom the Queen's Court of Australia-that is, the High Court-would
be able to exercise jurisdiction over. We do not consider that this is a matter of form at all;
25 it is one of great substance.
Sir JOHN FORREST (Western Australia).-It seems to me this provision is unnecessary.

I do not see why the expenditure of public money under the Federation should not be
governed by the same rules as under the British Constitution, or the Constitution of any
state. To propose that the High Court should have control over financial operations is
30 impracticable and absurd.
Mr. BARTON.-That is not proposed for a moment.
Sir JOHN FORREST.-I understand that that will be the case if money is spent without
legal authority.
Mr. FRASER.-Unauthorized expenditure.
35 Sir JOHN FORREST.-According to this provision the Treasurer of the colony, or the
Governor, if this money were paid under the Governor's warrant, could be brought up
before the High Court. If that is the intention it is ridiculous.
An HONORABLE MEMBER.-Do you think that they ought to be able to spend all the
money they like?
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Sir JOHN FORREST.-Yes, subject to the control of Parliament; Parliament will take
care of the matter, as it does now.
Mr. HOWE.-Suppose Parliament is told that the money is spent.
Sir JOHN FORREST.-They will be told that. It is no use trying to frame a Constitution
5 which will not work. Suppose a great disaster came upon, the country-say an invasion by a
foreign enemy-would the first thing that the Treasurer would do be to call Parliament
together to get authority for the expenditure? No; he would authorize the expenditure at
once, and rely upon Parliament to approve of what he did. That is what is done now
everywhere, and I am certain that it is impossible under our form of government to carry on
10 business unless that is done. Of course if things are in a very quiescent condition it may not
be necessary to spend money without authority.
[start page 904]
Mr. BARTON.-It would be breaking the Constitution to spend money without authority.
Sir JOHN FORREST.-Of course that is the case, and the honorable member, who has
15 been a member of a Government, knows that there is no Government in Australia which
has ever been able to carry on without doing so. It has to be done under every Constitution.
The Government must be trusted, and the Government under this Constitution will have to
be trusted. You may make the law as rigid as you like, but Governments will break it, and
will have to do so unless they are unfaithful to their duties. I am not an advocate for
20 spending money without authority, but I know it has to be done, and it is for Parliament
afterwards to say whether those who spend the money shall or shall not continue in their
positions. To state in this Constitution that the Treasurer or the Governor may be brought
up before the High Court to answer for their doings with respect to the public expenditure
is ridiculous, and it would not be tolerated by Australasia. At present the Government has
25 to answer to Parliament, and Parliament only, and I hope that in this Constitution we shall
continue that plan.
END QUOTE
.
30 QUOTE
Line 3, omit "throughout the Commonwealth," insert "between the states."
Mr. ISAACS (Victoria).-Honorable members will recollect that when in Adelaide I

placed considerable importance upon the necessity of altering the wording of this clause. I
drew attention to its enormously wide verbiage, and to the dangers which I considered
35 attended its adoption in its present form. I pointed out that the term "trade and intercourse"
included everything relating to commerce and trade-taxes, licences of all kinds, publicans'
licences, auctioneers' licences, hawkers' licences, municipal licences. It is in consequence
of the almost unlimited meaning attaching to these words in the United States Constitution
that the Supreme Court there exercises such unbounded control over the subject. I am not
40 going to repeat in detail what I said in Adelaide, because honorable members will find it in
the report of the debate. But I wish again to press the matter upon the attention of the
committee, and I have to state, with a good deal of pleasure, that Sir Samuel Griffith, in his
able paper upon the question, has drawn attention to the same point. His observations upon
the subject are these:-
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p407
I venture, before passing from this subject, to suggest a doubt whether the words of
section 89 (which are the same as in the Draft Bill of 1891) are, in their modern sense, quite
apt to express the meaning intended to be conveyed. It is, clearly, not proposed to interfere
with the internal regulation of trade by means of licences, nor to prevent the imposition of
5 reasonable rates on state railways. I apprehend that the real meaning is that the free course
of trade and commerce between different parts of the Commonwealth is not to be restricted
or interfered with by any taxes, charges, or imposts. Would it not be better to use these or
similar words?
He then considers what should be done if it is intended to include interference with the
10 railway rates. I should like to point out why the danger of the expression to which I have
drawn attention is so very great. The words "trade and intercourse" are almost unbounded
in their meaning when you apply them to the relations of trade and commerce, and, under
the proper heads, Baker's Annotated Constitution is full of instances showing how far-
reaching these words are. Then, take the words "throughout the Commonwealth." The
15 meaning of those words is not restricted to between the states; they refer to every part of the
Commonwealth, and I would refer honorable members to earlier portions of the Bill where
the same meaning will have to be given to them. If honorable members will turn to clause
52, which deals with the powers of the Parliament, they will find that in sub-section (2) the
Federal Parliament is empowered to legislate in regard to customs, excise, and bounties,
20 which shall be uniform "throughout the Commonwealth." That is, within every state and
every part of a state. "Throughout the Commonwealth" is the largest expression that can be
used. In the next sub-section it is provided that all taxation shall be uniform throughout the
Commonwealth. An income tax or a property tax raised under any federal law must be
uniform "throughout the Commonwealth." That is, in every part of the Commonwealth. In
25 clause 89 we find the same words again, and there can be no reasonable doubt that their
meaning is the same in one clause as in all. Clause 89 provides that all trade and intercourse
of every kind throughout the Commonwealth, whether by means of internal [start page
1015] carriage or ocean navigation, shall be absolutely free. Free of what? Free of
everything.
30 Mr. LYNE.-Not free of freight charges.
Mr. ISAACS.-No. They are charges for services. The clause means that the
Commonwealth is not to put a restriction upon trade in any way whatever, not merely by
means of customs or excise duties, but you are to leave every person absolutely free of any
limitation of his common law right of carrying on his trade. As I have said, Sir Samuel
35 Griffith has pointed that out again, and I do think we shall be taking a wrong course if we
leave so important a matter in doubt. It is very important, even at the present time, because
it means in licence-fees alone some £350,000.
Mr. LYNE.-Why do you say licence fees?

Mr. ISAACS.-Because that is trade and intercourse. If a man goes into an hotel and says-
40 "I want to purchase liquor from you," that is trade and intercourse. If the hotel-keeper is
told that he must not sell the liquor unless he pays the licence-fee he will turn to this clause
and say-"You have no right to charge me a licence-fee."
Mr. LYNE.-Do not you give all these licence-fees to the local bodies.
Mr. ISAACS.-If that construction is possible under the clause there will be no power in
45 the local body, the state Parliament, or the Federal Parliament to authorize such a charge.
p 407 9-3-2009
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Mr. LYNE.-I quite see that; but it is a fact that you do give licence-fees to the local
bodies.
Mr. ISAACS.-That may be so. It all depends on the law of the particular state.
Mr. OCONNOR.-Do not the words "whether by means of internal carriage or ocean
5 navigation " restrict the operation of the clause to transit?
Mr. ISAACS.-I should say not, and even if it did it would apply within the states to
hawking. What we want to do is to establish free-trade between the different parts of the
Commonwealth, and I would press my honorable friends to consider again the words of Sir
Samuel Griffith.
10 An HONORABLE MEMBER.-What page?
Mr. ISAACS.-Page 354 of the Victorian Blue-book. I am perfectly willing to leave the
matter to the Drafting Committee.
END QUOTE
.
QUOTE
Mr. GORDON.-I have faith in the things I see, and not in the things I know nothing
about. I have faith in Mr. O'Connor, and I believe his words were unmistakable wisdom
when he said-"Place this prohibition against the anti-federal use of the railways in the
20 Constitution in unmistakable words," whereas his honorable colleague says-"Leave it to the
courts and the refinements of law." I say that it would not be fair to Australia to leave so
great an interest on so slender a foundation.
Mr. BARTON (New South Wales).-I should like to clear up one or two doubts-which
may possibly have been raised in the minds of honorable members by Mr. Gordon's
25 ingenious argument, which was certainly more ingenious than direct. I cannot give him as
much credit for its directness as I can for its ingenuity. The words that were quoted from
Mr. O'Connor's speech in detail were quoted from a debate on the words which, if the
amendment be carried, will disappear from the 95th clause.
Mr. KINGSTON.-The debate was on the resolutions.
30 Mr. BARTON.-Yes, it was a general debate on the federal resolutions, and I think my
friend was arguing then for an Inter-State Commission. That debate was based on the Bill
of 1891. That Bill contained something very similar to the present 95th clause, but the
proposal then consisted of two clauses, and the second part was a prohibition without the
further statement that further legislation should be null and void.
35 Mr. ISAACS.-It gave the Parliament power to annul it.
Mr. BARTON.-Arguing on that, Mr. O'Connor said it was necessary, that the provision
should be made more clear-that, inasmuch as the language of the clause was doubtful, we
should do without that which was doubtful, or add to it something which took away its
doubtfulness. My proposition has been to remove the entire doubt by striking out the
40 clause, and substituting a provision which does not admit of any doubt in regard to the
action of the Commonwealth, leaving the remainder of the dealings of the states in regard
to the traffic to be regulated by the trade and commerce clause, which does not admit of
any doubt. The question really is-Is the sub-section relating to trade and commerce
p 408 9-3-2009
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doubtful? Putting aside judicial determinations for a moment, what are the words of the
clause-"The regulation of trade and commerce with other countries and with the several
states." Will my honorable friend say that the word "regulation" is doubtful, or that "trade
and commerce" is doubtful? Will he deny that the power to regulate carries with it the
5 power to legislate?
Mr. GORDON.-Why then go to the American courts to decide what it means?
Mr. BARTON.-If my honorable friend hears me he will have his answer presently. The
power to regulate gives the power to legislate, coming, as it does, under the heading-
"Parliament shall have the power to make laws in all cases following," one being the
10 regulation of trade and commerce. The power to make laws, is clearly a power to legislate,
so there is no doubt as to the meaning of that word. And is there any doubt that "trade and
commerce" includes all exchanges and traffic among the several states, as well as with
other countries? If my honorable friend has no doubt about the meaning of those words,
then there is, clearly, the power to [start page 1330] legislate for the regulation of traffic by
15 way of commerce, whether by land carriage, river, or sea; among the several states, and
with foreign countries. Let us take the matter apart from all legal determinations. If the
regulation includes navigation, does it include railway, as well as river and sea, traffic? If
the answer to both is in the affirmative, where is the doubt, apart from judicial decisions?
Mr. GORDON.-It requires judicial decisions in America.

20 Mr. BARTON.-The decisions are all of one tenor, and against my honorable friend's
contention. And, while he is arguing that we should take away any doubt, because the
matter has to be solved by a court of justice, is it not clear that a consistent course of
decisions is the only way we can safely arrive at a determination as to the meaning of the
words?
25 Mr. GORDON.-A long series of decisions of the courts of justice are usually embodied
in the law.
Mr. BARTON.-A long series of decisions of the courts of justice are usually not
embodied in the law.
Mr. GORDON.-They are, where they apply to the business of the state.
30 Mr. BARTON.-If that were so, we should have a code of laws to explain the whole
common law of England. My friend, as a lawyer, has rather twitted me with some want of
knowledge on the subject, of which I am, perhaps, an unworthy exponent, and says that the
decision required to be embodied in a statute should be made clear. If that be so, we must
come to the conclusion that the ordinary operation of the common law of England
35 requires, as I have said, a statute to explain it. But that is not the case. A succession of
plain words, defined over and over again by judicial determination, requires no explanatory
statute. If it did, we, overburdened with legislation as we are, would never be done making
laws. But where is the authority to show that the United States Constitution allows the anti-
federal use of railways? There has not been the slightest attempt to cut down the authority
40 of the Wabash case, whether that was decided by a majority or not. On the Wabash case
followed the passing of the Inter-State Commission Act, which was an endeavour to
embody the principle laid down in the decision in that case. Since that statute has been
passed, there have been a large number of decisions under it. I do not want to weary the
committee by citing cases; but under these decisions it is abundantly clear that a distinction
p 409 9-3-2009
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is drawn between what is federal and what is anti-federal. Under these numerous decisions,
which there is no authority on the part of the United States to impugn, it is clear that when a
rate deals with traffic entirely within a state, that must be regulated by the power of the
state to deal with its own traffic, while not engaged in commerce with another state. But
5 where that rate has the effect, of interfering with the inter-state traffic, it is held that it
would be usurping the power of the Commonwealth with regard to traffic. There the Inter-
State Commission does step in, and prohibits that rate, and that is only carrying out the
broad principle at the root of the Wabash decision. So when the honorable member says
that I am in a dilemma, he convicts me of putting before the Convention the state of the law
10 in the United States before the Congress legislated for the appointment of an Inter-State
Commission. That is precisely our position, because even if we retained the Inter-State
Commission clauses, they are only clauses giving authority to Parliament to appoint an
Inter-State Commission. There is, under these clauses, no Inter-State Commission, but only
authority to appoint one. Until a commission is appointed, and until its powers of
15 administration and adjudication are defined by a statute, the state of things under this
Constitution must remain precisely as it was under the United States Constitution before the
Inter-State Commission was [start page 1331] appointed. So whatever value the Wabash
decision has-and it has all the authority of an untouched decision of the United States Court
given twelve years ago-its authority is applicable to any state of things which will exist in
20 the Commonwealth until the Inter-State Commission is not only appointed, but invested by
statute with power. Until such a commission is invested with the same powers as the
commission in the United States, I am confident that the mere verbal carrying into effect of
these principles of the Constitution (because Congress cannot legislate outside the
Constitution) which were laid down in the Wabash case must prevail here without statute,
25 and when such a law is carried it will be more effectually carrying into effect the principles
of the Constitution itself.
Mr. SYMON (South Australia).-I do not attempt to reconcile the views of Mr. Barton
and Mr. Gordon, both of which views have been expressed with a great deal of force and
earnestness. But I think those views have made it very clear indeed that after all there are
30 some occasions when it is desirable to have what has been described as a placard in a
Constitution. Of course, I am not a believer in having placards, in the least agreeable sense
of the word, scattered broadcast throughout the Constitution, but there are occasions and
places in which it is desirable to have something which is intended to be what Mr. Barton
calls a placard inserted in the Bill. After listening to what has been said, I think this is one
35 of those occasions, because Mr. Gordon has pointed out circumstances that, at any rate,
indicate the possibility of some doubt as to the length to which the decisions of the United
States go on this very important point. But, after all, we must remember this: That this is
not like an Act of Parliament which we are passing. It is not in the position which Mr.
Barton has described, of choosing or setting up a code of laws to interpret the common law
40 of England. This Constitution we are framing is not yet passed. It has to be handed
over not to a Convention similar to this, not to a small select body of legislators, but to
the whole body of the people for their acceptance or rejection. It is the whole body of
the people whose understanding you have to bring to bear upon it, and it is the whole
body of the people, the more or less instructed body of the people, who have to
45 understand clearly everything in the Constitution, which affects them for weal or woe
during the whole time of the existence of this Commonwealth. We cannot have on the
platform, when this Constitution is commended to the people, lawyers on both sides,
drawing subtle distinctions, which may or may not be appreciated by the people.
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Mr. HOWE.-If you had lawyers on the platform in that way you would never get the Bill
forward at all.
Mr. SYMON.-Whether that be so or not, where we have the varying opinions of lawyers
on a matter of such particular consequence as the trade of a country, those varying opinions
5 are not proper matters to bring before the whole body of the people as matters upon which
they should give their vote. Therefore, this is one of the things on which we may discard
the objection which I, for one, would otherwise take to the insertion of what are called
placards in the Constitution. But I think that Mr. Gordon is quite justified in the anxiety he
feels as to every material advantage seeming to be slipping away from under the feet of
10 South Australia. That is the position we are in. Yesterday the hope we all cherished that
unrestricted freedom of trade between these colonies would be maintained was taken away,
and the one avenue in regard to freedom of trade between these colonies which, at this
particular moment, is of value to us as South Australians was closed.
END QUOTE
15 .
QUOTE Mr. ISAACS (Victoria).-
The Inter-State Commerce Commission is not empowered, either expressly or by
implication, to fix rates in advance; but, subject to the prohibitions that their charges shall
20 not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give
undue preference or disadvantage to persons or similarly circumstanced, the Act to regulate
commerce leaves common carriers as they were at the common law, free to make special
contracts, looking to the increase of their business, to classify their traffic, to adjust and
apportion their rates, so as to meet the necessities of commerce, and generally to manage
25 their important interests upon the same principles which are regarded as sound, and adopted
in other trades and pursuits.
That is precisely the position we take up-that New South Wales shall be left free and
unchallengeable in all her internal arrangements, provided they do not act unjustly to other
states. Because it is possible to affect the operations of the Victorian railways by internal
30 charges made on New South Wales railways just as Victoria is able to affect New South
Wales railways by charges on her own. Therefore, we say, let us look to the substance, not
merely to the form, and consider what is just and fair. I would invite my honorable friend's
(Mr. O'Connor's) attention to a book which is, perhaps, the latest work on the subject of
railways, and which deals with the question of discriminative charges. The volume is Wood
35 On Railroads. It deals with, I think, all the English and American cases and Acts on the
subject. On page 639, section 195, the subject under discussion is dealt with in a most
masterly and exhaustive fashion. I shall only quote one passage from page 665, section 203.
END QUOTE
.
QUOTE
Mr. BARTON.-Certainly there is a decision in the United States to the effect that it is a
Christian nation. What does that decision amount to? Is it not really a decision based on the
fact that the institutions of England, under the common law, are Christian institutions,
45 which, so far as they are not interfered with by any written Constitution, belong to citizens
of the United States, as having been brought over by them as British subjects, and kept by
them from that day to this? If that is the ground of the American decision, which I suspect it
is, the same thing applies in some of these colonies. Decisions have been given to the effect
p 411 9-3-2009
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that there colonies are Christian communities. I remember a case in which that doctrine was
expounded at length by the late Chief Justice Martin, of New South Wales. Now, if the
colonies are Christian communities, the common law of England will apply to the
Commonwealth, except so far as this Constitution alters that law; and if it is part of the
5 common law of England that we shall be regarded as a Christian community, what fear is
there of our suffering any dangers of the kind indicated in the amendment, simply because
we are a Christian community? I do not see any danger of the [start page 1771] kind to be
anticipated. I think that because we are a Christian community we ought to have advanced
so much since the days of State aid and the days of making a law for the establishment of a
10 religion, since the days for imposing religious observances or exacting a religious test as a
qualification for any office of the State, as to render any such dangers practically
impossible, and we will be going a little too far if we attempt to load this Constitution with
a provision for dangers which are practically nonexistent.
Mr. HIGGINS.-That is the question-are those dangers non-existent?
15 Mr. BARTON.-I do not think the fact that we may be held by law to be a Christian
community is any reason for us to anticipate that there will be any longer any fear of a
reign of Christian persecution-any fear that there will be any remnant of the old ideas which
have caused so much trouble in other ages. The whole of the advancement in English-
speaking communities, under English laws and English institutions, has shown a less and
20 less inclination to pass laws for imposing religious tests, or exacting religious observances,
or to maintain any religion. We have not done that in Australia. We have abolished state
religion in all these colonies; we have wiped out every religious test, and we propose now
to establish a Government and a Parliament which will be at least as enlightened as the
Governments and Parliaments which prevail in various states; therefore, what is the
25 practical fear against which we are fighting? That is the difficulty I have in relation to this
proposed clause. If I thought there was any-the least-probability or possibility, taking into
consideration the advancement of liberal and tolerant ideas that is constantly going on of
any of these various communities utterly and entirely retracing its steps, I might be with the
honorable member. If we, in these communities in which we live, have no right whatever to
30 anticipate a return of methods which were practised under a different state or Constitution,
under a less liberal measure of progress and advancement; if, as this progress goes on, the
rights of citizenship are more respected; if the divorce between Church and State
becomes more pronounced; if we have no fear of a recurrence of either the ideas or the
methods of former days with respect to these colonies, then I do suggest that in framing a
35 Constitution for the Commonwealth of Australia, which we expect to make at least as
enlightened, and which we expect to be administered with as much intellectuality as any of
the other Constitutions, we are not going to entertain fears in respect of the Commonwealth
which we will not attempt to entertain with respect to any one of the states. Now, we have
shown that we do not intend these words to apply to our states by striking out clause 109.
40 That might be a provision that might be held to be too express in its terms, because
there may be practices in various religions which are believed in by persons who may
enter into the Commonwealth belonging to other races, which practices would be
totally abhorrent to the ideas, not only to any Christian, but to any civilized
community; and inasmuch as the Commonwealth is armed with the power of
45 legislation in regard to immigration and emigration, and with regard to
naturalization, and also with regard to the making of special laws for any race, except
the aboriginal races belonging to any state-inasmuch as we have all these provisions
under which it would be an advisable thing that the Commonwealth, under its
regulative power, should prevent any practices from taking place which are abhorrent
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to the ideas of humanity and justice of the community; and inasmuch as it is a

reasonable thing that these outrages on humanity and justice (if they ever occur)
should be prohibited by the Commonwealth, it would be a dangerous thing, perhaps,
to place in the Bill a provision which would take out [start page 1772] of their hands
5 the power of preventing any such practices.
Mr. HIGGINS.-Do you think that the Commonwealth has that power under the existing
Bill?
Mr. BARTON.-I am not sure that it has not. I am not sure that it has not power to
prevent anything that may seem an inhuman practice by way of religious rite.
10 Mr. HIGGINS.-I want to leave such matters to the states.
Mr. BARTON.-But inasmuch as we have given to the Commonwealth the power of

regulating the entry of that class of persons, and the power of regulating them when they
have entered, is it not desirable that in that process there shall be left to the Commonwealth
power of repressing any such practices in the name of religion as I have indicated? If it be
15 necessary that there should be some regulative power left to the Commonwealth, then the
argument that we should leave the matter to the states does not apply, because we give such
a power to the Commonwealth.
Mr. HIGGINS.-Then all crimes should be left to the Commonwealth?
Mr. BARTON.-No; because you do not give any power with regard to punishing
20 crime to the Commonwealth, but you do give power to the Commonwealth to make
special laws as to alien races; and the moment you do that the power of making such laws
does not remain in the hands of the states; and if you place in the hands of the
Commonwealth the power to prevent such practices as I have described you should not
defeat that regulative power of the Commonwealth. I do not think that that applies at all,
25 however, to any power of regulating the lives and proceedings of citizens, because we
do not give any such power to the Commonwealth, whilst we do give the
Commonwealth power with regard to alien races; and having given that power, we
should take care not to take away an incident of it which it may be necessary for the
Commonwealth to use by way of regulation. I have had great hesitation about this matter,
30 but I think I shall be prevented from voting for the first part; and as to establishing any
religion, that is so absolutely out of the question, so entirely not to be expected-
Mr. SYMON.-It is part of the unwritten law of the Constitution that a religion shall not
be established.
Mr. BARTON.-It is so foreign to the whole idea of the Constitution that we have no
35 right to expect it; and, as my honorable and learned friend (Mr. Symon) suggests by his
interruption, I do not think, whatever may be the result of any American case, that any such
case can be stretched for a moment in such a way as to give Congress power of passing any
law to establish any religion. I do not suppose that there is a man in Congress who would
suggest it; and I have no doubt that the same court that decided that the community was a
40 Christian community would say that the United States Congress had no power to establish
any religion. The only part of the matter upon which I have had the least doubt (having
become more confirmed in my opinion since I have considered the matter further) is the
latter part of the proposal, which is that no religious test shall be required for any place of
public trust in the Commonwealth. I do not think that any such test would be required, and
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the only question is whether it is possible. I have come to the conclusion that it is not
possible. Therefore, my disposition is to vote against the whole clause.
Mr. REID.-I suppose that money could not be paid to any church under this
Constitution?
5 Mr. BARTON.-No; you have only two powers of spending money, and a church
could not receive the funds of the Commonwealth under either of them.
[start page 1773]
Mr. WISE (New South Wales).-I can conceive of no matter more fit for state control
than that of religious observance, and, therefore, I am utterly unable to follow the
10 leader of the Convention (Mr. Barton) in his contention. There should not be any
opening for doubt as to the power of the Commonwealth to exercise control over any
religion of the state. I wish I could share Mr. Barton's optimistic views as to the death
of the spirit of religious persecution. But we have seen in our own time a
recrudescence of that evil demon, which, I fear, is only scotched and not killed. At any
15 rate, the period during which we have enjoyed religious liberty is not long enough for
us to be able to say with confidence that there will be no swinging back of the
pendulum to the spirit of the times from which we have only recently emerged.
Consequently there is some reason for the alarms which have been expressed by a
very large body of people, who have not been represented in this Convention, by long
20 petitions, but who none the less are entitled to be considered when we are framing this
Constitution, and who, rightly or wrongly-for my own part, I believe rather more
wrongly than rightly-believe that the agitation for the insertion in the preamble of the
words which we have inserted to-day is sufficient to cause alarm among citizens of
certain ways of thinking, and that there is an interior design on the part of some
25 people in the community to give the Commonwealth power to interfere with religious
observances.
Mr. HIGGINS.-We had 38,000 signatures to a petition from the people in Victoria
against the inclusion of these words in the preamble.
Mr. WISE.-I am very glad to hear it. That strengthens my argument. if 38,000
30 citizens of Victoria sent a petition against the inclusion of these words, not because
they disapproved of the words in themselves, but because I suppose they were afraid
that the inclusion of them would confer upon the Commonwealth some power to
legislate with regard to religious observances, I say that fears of that sort should be
respected.
35 END QUOTE
And
QUOTE
Mr. SYMON (South Australia).-I beg to move, as an amendment-
That all the words down to "and" be omitted, with a view to the insertion in lieu thereof of
40 the following:-"Nothing in this Constitution [start page 1776] shall be held to empower
the Commonwealth to require any religious test as a qualification for any office of
public trust under the Commonwealth."
I do not oppose the earlier part of the clause on the same ground as I put before, because I
am satisfied in regard to those matters, to which attention was directed when clause 109
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p415
was under discussion, that under the ordinary operation of the common law any
inhumanities and cruelties could be effectually stopped.
Mr. HIGGINS.-By which Parliament?
Mr. SYMON.-By either the state or the Commonwealth Parliament. I mention that to
5 show that I do not change my view that that part of the clause is objectionable. But I hold
strongly that in consequence of the insertion of the new words in the preamble it is
desirable that some provision should be made to make it clear that these words are not to
overspread the whole Constitution.
Mr. ISAACS.-Would not your view be carried out by leaving the residuum of the clause
10 just as it stands?
Mr. SYMON.-I should have no objection to that, but I think it would be better to say that
nothing in the Constitution shall empower the Commonwealth to impose any religious test.
I sympathize with Mr. Higgins in his fear that the insertion of the words we put in the
preamble might lead to an impression amongst a larger or smaller section of the community
15 that it would be possible to impose some religious test, and that the sentiment conveyed by
the words might overspread the Constitution in some way. My honorable friend desires that
there should be something in the nature of a counterblast, for the satisfaction of those who
may entertain that apprehension.
END QUOTE
20 And
QUOTE
Mr. WISE (New South Wales).-I should like, in two sentences, to put forward a matter
to which I invite the attention of the honorable and learned member (Mr. Symon). If the
arguments which prevailed in, the Supreme Court of the United States in 1892 were to
25 prevail in the Commonwealth Supreme Court, the Commonwealth authority would have an
implied power to administer the common law in respect to the observances of Christianity.
Of course, I may say at once that I cannot understand the decision of the United States
court.
Mr. HIGGINS.-Still it exists.

30 Mr. WISE.-Yes. Unless the amendment of the honorable member (Mr. Higgins) were
carried, the Commonwealth authority might, under the ruling of the Supreme Court of the
Commonwealth, have this implied power. For this reason, I appeal to the honorable and
learned member (Mr. Symon) to withdraw his amendment, so that we may take a vote upon
the clause as it stands.
35 [start page 1778]
Mr. FRASER.-The decision of the Supreme Court might be the opposite to what the
honorable and learned member proposes.
Mr. WISE.-Of course it might.

Mr. FRASER.-Why should we interfere at all?
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p416
Mr. WISE.-That is what I think. I would leave it to each state to do as it pleases in regard
to Sunday observance, but I would deprive the Parliament of the right to make any laws at
all upon this subject.
Mr. OCONNOR (New South Wales).-I hope that the honorable and learned member
5 (Mr. Symon) will not withdraw his amendment. I intend to support it. It appears to me the
only provision before us for which there is any justification. I do not know that it is
absolutely necessary, but I think that it would be as well for us to have it. With regard to the
provision suggested by the honorable member (Mr. Higgins), I think that it would tend to
run us into danger rather than, as the honorable member wishes, to enable us to avoid it.
10 Upon the face of the Constitution the Commonwealth has certainly no power whatever to
deal with religion, either directly or indirectly.
Mr. HIGGINS.-Will you explain why they have these words in the first amendment of
the American Constitution?
Mr. OCONNOR.-The provisions of the American Constitution in regard to the powers

15 handed over to the Federal Parliament are not nearly so definite as the provisions of our
Constitution.
Mr. HIGGINS.-The American Constitution has no recital in the preamble such as we

have just inserted in our Constitution.
Mr. OCONNOR.-Yes. But the amendment of the American Constitution to which the
20 honorable and learned member refers was rendered necessary by the fact that there is not
the definite division of powers in that Constitution that we have in our Constitution. I
cannot imagine that clause 52 gives any ground from which it could be argued that the
Federal Parliament has the right to interfere in regard to the exercise of religion, or to deal
with religion in any way.
25 Mr. KINGSTON.-Except in regard to special races.
Mr. OCONNOR.-Of course, in regard to special races the Federal Parliament could
make any laws it liked, and I think it very desirable that it should have that power.
Mr. KINGSTON.-Would it not be better to intrust this power to the states?
Mr. OCONNOR.-No, I do not think so. I think that the power to deal with alien races is
30 given as an exclusive power.
Mr. KINGSTON.-It was put back.

no doubt that it will be exercised. By putting into the Constitution words prohibiting the
Commonwealth Parliament from making certain specified laws you create the implication
35 that the Parliament has power to deal in other respects with religious observances.
END QUOTE
.
QUOTE
40 Dr. QUICK (Victoria).-I think the leader of the Convention has made out a good
case for the re-insertion of these words, on the ground that without the sub-section in
question the clause would have the effect of limiting the particular class of writs or
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p417
remedies which it will be within the power of the Federal Court to administer. But I
should like to ask, for instance, would the court have power not only with regard to
the three writs specified in the sub-section, but would it have power to issue writs of
certiorari to bring up writs and quash them, and would it have power to issue writs of
5 habeas corpus against an authority which might improperly imprison a citizen of the
Commonwealth? It seems to me that the Supreme Court would be limited to the three
classes of writs, and would not have power to issue other writs which it might be
desirable that the court should issue.
Mr. BARTON (New South Wales).-It is well determined that there is power to issue a
10 writ of habeas corpus independently of words of this kind. That has been decided in
America. It was decided that the right of a citizen to have the cause of his detention
inquired into was clear; that the right of habeas corpus existed under the common law
of England, and did not need any provision with regard to it whatever.
Sir JOHN FORREST (Western Australia).-I should like to ask whether this power could
15 be exercised against a Governor of a state for any act of his? Would it include the
Governors of states acting under Ministerial authority?
Mr. BARTON.-The Governor of the state is not an officer of the Commonwealth.
Sir JOHN FORREST.-Could it apply to Ministers of state or the Governor of a

state?
20 Mr. BARTON.-No.
Mr. GLYNN (South Australia).-Upon this subject I should like to call particular
attention to an article which appeared in the Law Times on the 13th February, 1897.
The article deals with this very point of the right to issue a mandamus against a
Governor. It was decided in the case of Marbury v. Madison that an injunction could
25 issue as regards the state courts, and the writer complains of this as an interference by
one department of the state with another. He says-
But following the doctrine of this decision, or rather, of this extrajudicial fulmination-for
the court had really nothing to decide except its own want of jurisdiction-the state
judicatures have, almost without exception, asserted the power to control the executive
30 department of their state Governments in what are called Ministerial matters which do not
involve the exercise of an exclusive discretion, by sending writs of mandamus to the heads
of executive departments, and even in some instances to the Governor himself.
It is done, then, in America. There may be a slight distinction-one cannot answer

questions of this kind on the spur of the moment-but it is a matter worth a little more
35 consideration. We are putting it in [start page 1877] the power of the Federal Judiciary to
interfere with the Federal Executive, which, in America, is complained of as an
unconstitutional interference with the executive departments of the state.
Mr. KINGSTON (South Australia).-I hope we shall not hastily adopt this amendment,
but that we shall have an opportunity of further considering it. I understand that Mr. Barton
40 proposes to give to the Federal Court a power which the authorities cited by Mr. Glynn
seem to declare would extend even to the executive acts and restrain the executive action of
the Federal Government. That power is not possessed in America, and to confer it here,
when the states have been able to do so well without it, seems to me to be a step we should
p 417 9-3-2009
p418
not take, except after the most mature consideration. No doubt we have had this proposal
on our files, but still it is a matter of such moment that I make the suggestion of delay.
Mr. BARTON.-What evil consequences can arise from it?
Mr. KINGSTON.-The clashing of the courts and the Executive. We should be sorry to
5 implant in the Constitution a provision by which the federal courts would have any control
over the executive acts. For the executive act of the Commonwealth the executive officers
would be responsible to Parliament, which, no doubt, would see due regard is bad to all
constitutional provisions. But if we specially provide for interference by the courts in
federal matters, we will be giving to the High Court of Australia a power it is unnecessary
10 that court should possess, and which might, at various times, be exercised to the very great
detriment of constitutional government.
Sir JOHN FORREST.-It is not exercised in England.
Mr. KINGSTON.-No, and why should we put it in this Constitution? We have already
put it within the power of the Federal Parliament, by express provision, to legislate so as to
15 confer the right of proceeding against the Crown. That seems to me quite sufficient. To
further embody in this Constitution a declaration that the Judiciary should interfere with the
Executive, or that it should be within the judicial power to do so seems to me a retrograde
step which cannot be defended.
Mr. SYMON (South Australia).-The apprehensions just laid before the Convention
20 are, I think, not well founded. The provision will not in my view enable the Federal
High Court or any court to interfere in any way whatever with the political Executive
of the Federation. The provision does not confer, and is not intended to confer, and I
am sure Mr. Barton will agree with me in this-any right whatever to interfere in such
cases. It merely gives a jurisdiction.
25 Mr. BARTON.-Hear, hear.
Mr. SYMON.-Applications may be made now.
Mr. BARTON.-This proposal does not confer any right.
Mr. SYMON.-I was going to say that it does not confer any right. It is a safeguard,
because it will prevent any application for mandamus or prohibition, both of which
30 are prerogative rights, being made in any court except the courts invested with federal
jurisdiction. The provision says that if you apply as against an officer of the
Commonwealth-
Sir JOHN FORREST.-It might be against the Governor-General of the

Commonwealth.
35 Mr. SYMON.-No, but supposing it is? I will take that position, and say that it does not
give any right to get mandamus or prohibition.
Sir JOHN FORREST.-It is optional.
Mr. SYMON.-It is not optional. It merely gives a jurisdiction in certain applications.

Sir JOHN FORREST.-No.
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p419
Mr. SYMON.-Will my honorable friend pardon me? We have had applications in my

own colony-I don't know that this has been the case in other colonies-for mandamus and
prohibition directed against officers or a body constituted under the [start page 1878]
Executive Government of the day, and the question has been raised whether or not that was
5 an interference,. That was a case of seeking to proceed by mandamus for the performance
of some act by the Executive through somebody to whom the control had been delegated. It
is not provided that the right shall exist to get the mandamus or prohibition.
Sir JOHN FORREST.-It means nothing then?
Mr. SYMON.-Yes, it means a great deal. It means that no court, except the Federal
10 High Court, or other courts under the Federal Constitution, shall have the power to
entertain such an application. If this provision be not inserted, it follows that anybody
who is discontented with something done by an officer of the Commonwealth in any state
might apply to the court of the state for mandamus or prohibition. He might not get it, but
be might apply for it, and there are cases in which be would get it. But if this provision be
15 inserted the application would have to be made to the Federal Court. That, I take it, is a
safeguard.
Mr. ISAACS.-Is this exclusive?
Mr. SYMON.-Yes, as to the officers of the Commonwealth.

Sir EDWARD BRADDON.-It is a limitation of the right of the people against the
20 Crown.
Mr. SYMON.-No; it is not a limitation. All it says is that an application for

mandamus or prohibition against an officer of the Commonwealth must be taken to
the High Court or other of the Federal Courts. An application cannot be made to a state
court, although the incident which brings the application about may happen in a particular
25 state. The right to mandamus or prohibition is not conferred one whit more than at present.
The provision merely throws within the ambit of the jurisdiction of the federal tribunal the
right to determine the question. That question will be determined by the ordinary law of
England-by the principles of constitutional government and the prerogatives of the Crown.
There have been prohibitions and writs of mandamus granted against officers of the Crown
30 in England, as well as in other places, where the officer has not been exercising an
executive discretion, but where he has been what might be called a conduit pipe through
which money ought to pass from the Treasurer or some fund to the intended recipient. If an
officer has not paid that money over, application may be made for a writ of mandamus to
compel him. But it is not necessary to discuss these things now. The only question is
35 whether the proposal confers a right on anybody, no matter what the circumstances or
whether the application impinges on the prerogative, to obtain a writ of mandamus or a
prohibition against an officer of the Crown. The provision has not that effect at all. It is a
safeguard and a limitation. It prevents an officer of the Commonwealth, whether Minister
or anybody else, from being proceeded against in any state, in regard to the
40 Commonwealth.
Sir JOHN FORREST.-I should say it would be a very cumbrous and undesirable
method.
Mr. SYMON.-It would be very cumbrous and undesirable if an officer of the

Commonwealth could be proceeded against in a state court.
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p420
Sir JOHN FORREST.-In the colonies now, I think writs of mandamus are issued to
prevent officers doing certain things.
Mr. BARTON.-A mandamus is issued to compel the performance of a plain official duty
laid down in an Act of Parliament.
5 Sir JOHN FORREST.-I know the court interferes with officers of the Crown to compel
them to do certain things. Prohibitions are common enough, even in the colony I come
from.
Mr. SYMON.-My honorable friend (Sir John Forrest) will see that the proposal before
the Convention would not interfere in any way with the proceedings he has mentioned.
10 Whatever [start page 1879] jurisdiction the state courts have now in regard to writs of
mandamus and to prohibitions against officers of the state will remain. All the provision
says is that writs of mandamus and prohibitions against officers of the
Commonwealth shall be within the jurisdiction of the Federal Court. The point that my
honorable friend. (Dr. Quick) has referred to is one worthy of the attention he has given to
15 it. The distinction is that writs of mandamus and prohibitions are prerogative rights,
and these other cases are not.
Dr QUICK.-Is not habeas corpus a prerogative right?
Mr. SYMON.-It is not a prerogative right.

END QUOTE
20 And
QUOTE
Mr. ISAACS.-I think you cannot; but the court in construing such a clause would say
there must have been some special reason for putting it in, and the only reason they
could have for putting it in would be either to indicate that the previous power given was
25 too small to confer it, and, therefore, would exclude other matters, or it would say that it
was intended to enlarge that power and give a right to the court to act as it pleased on such
application being made. Both of these positions I think we ought to avoid, therefore I would
ask my honorable friends to consider very seriously before they insert this clause. It seems
to be wholly unnecessary; it cannot work any good and it may work a great deal of harm.
30 Dr. QUICK (Victoria).-I would direct the attention of the leader of the Convention to the
fact that the Constitution of the United States contains a distinct provision in favour of the
writ of habeas corpus. Section 9 says-
The privilege of the writ of habeas corpus shall not be suspended unless when in cases of
rebellion or invasion the public safety may require it.
35 Mr. ISAACS.-That is part of the Declaration of Rights.
Dr. QUICK.-I would point out to Mr. Symon that the writ of habeas corpus is a high
prerogative right, because, according to Storey, vol. 2, page 237:-
In England this is a high prerogative, issuing out of the Court of Queen's Bench not only
in term time, but in vacation, and running in all parts of the king's dominions, for it is said
40 the king is entitled at all times to have an account why the liberty of any of his subjects is
restrained.
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I think that lends force to some observations I made at an earlier stage of the discussion to
this effect: That if you are going to have a section enumerating writs which it is within the
jurisdiction of the High Court to issue, then that enumeration ought to include all possible
desirable writs. The Constitution of the United States contains a distinct recognition of the
5 writ of habeas corpus, and the section creating the jurisdiction of the Supreme Court of the
United States does not enumerate any of those writs which it is now proposed to
enumerate.
Mr. BARTON.-That does not provide for the writ of habeas corpus. It recognises an
existing writ, and it only says that it shall not be suspended.
10 Mr. ISAACS.-It is like a declaration of rights.
Dr. QUICK.-But in the Constitution of the United States there is no section [start page
1881] such as is now proposed, limiting or defining the writs which may be issued by that
court; it is left to the operation of the common law. Here it is proposed to put in a clause
limiting and defining the class of writs to be issued to three, viz., mandamus, prohibition,
15 and injunction. That, according to the great doctrine of limitation which has been so often
impressed on the Convention, would exclude, by process of definition, the right to issue a
writ of habeas corpus or a writ of certiorari. If there is to be a clause defining those writs,
then I contend that it ought to be a complete definition and a complete enumeration
embracing all possible writs for the enforcement of remedies, otherwise it is best to leave
20 out the clause.
Mr. BARTON.-The object of this clause is a very clear one, if I may mention it
without interrupting the honorable member. In certain cases the Supreme Court would have
original jurisdiction, in others appellate. If you do not specially mention this, then in
cases of mandamus, prohibition, and injunction, it can only have the ordinary
25 appellate jurisdiction, but if you mention it specially as within the judicial power, and
provide for it as an original jurisdiction, then a case may be taken straight to the
court instead of having to filter through another court.
Dr. QUICK.-I have not the slightest objection to the clause provided that it is made
sufficiently comprehensive to include all desirable remedies. I contend that these other
30 remedies are equally as desirable as are those three.
Mr. ISAACS (Victoria).-If the court, under one of these sub-sections, has the power to
deal with all cases arising under the Constitution it would have the power necessarily, or
certainly the Federal Parliament would have the right to give the power, to exercise its
jurisdiction by way of mandamus, or injunction, or prohibition.
35 Mr. BARTON.-In the United States it is extended only to cases of law and equity arising
under the Constitution, but it was held not to confer this power as an original power. It only
exists as an appellate one.
Sir EDWARD BRADDON (Tasmania).-I should like to ask the leader of the Convention
whether this would be an exclusive right? If so, there is no doubt whatever that it would
40 limit the liberties of the people of the states to some extent. Suppose, for instance, in any
state a citizen had a grievance arising out of some neglect on the part of a federal officer,
say a postmaster or a telegraph operator, would it be required by this clause that the person
so injured, or fancying himself so injured, would have to proceed by way of mandamus or
otherwise in the federal and not in his own local court, because of the exclusive jurisdiction
p 421 9-3-2009
p422
we vest in the Federal High Court? If it is, then that citizen would be put to very
considerable inconvenience by exercising one of his privileges of citizenship.
Mr. SYMON (South Australia).-There is no doubt whatever if the possibility which Sir
Edward Braddon has indicated could arise, it would be a very grave blunder, and it would
5 be a mischief which we ought at all hazards to avoid; but that would not be the position. If
such a case as he put were to arise, it would not be necessary for the person who was
aggrieved or considered himself aggrieved by the federal officer to proceed in the
Federal High Court. He could proceed in any federal court or in any court invested
with federal jurisdiction.
10 END QUOTE
And
QUOTE
Mr. ISAACS.-At this juncture the difficulty arises, could the court grant a writ of
mandamus except in the cases in which jurisdiction has been given?
15 Mr. BARTON.-I think it would apply to any case in which, under the common law, or
under any statute made for the furtherance of the duties imposed by it, you could obtain, we
will say, a writ of mandamus. Similarly, it would apply in regard to writs of prohibition and
injunction. I want honorable members to bear in mind that this is simply a provision
conferring jurisdiction. It does not confer-and this answers the doubt of the Right
20 Hon. Sir Edward Braddon-upon any person any new right. It does not give anybody a
right to pursue in any way an officer of the Commonwealth, [start page 1884] except
such right as arises out of the known principles of law, which go to this extent: I will
take the writ of mandamus as an illustration. Where there is a duty imposed by an
Act of Parliament, and that duty has to be performed, not merely in relation to the
25 Crown, but also for the benefit of the public, any person aggrieved by the non-
performance of it may obtain a writ of mandamus. In the same way, where it is
proposed to put into operation against him some process of the law, he, as a subject,
having the right to have this process of law properly exercised, can obtain an
injunction against its wrongful exercise. Those are the class of cases to which these
30 provisions are intended to apply. If you did not put this power into the Constitution
the result would be that it could only be exercised upon an appeal from another court.
The position under this Constitution will be somewhat analogous to the position under the
United States Constitution. In clause 73 we enumerate the judicial powers. We propose to
include among them, as we did before, this power to decide cases in which writs of
35 mandamus, prohibition, and injunction are applied for. Then, we propose to put into clause
77-and I think the honorable and learned member (Mr. Symon) will hear me out in this-the
same words as to these writs. This will give the High Court original jurisdiction, as well
as appellate jurisdiction, in these cases, so that when a person wishes to obtain the
performance of a clear statutory duty, or to restrain an officer of the Commonwealth from
40 going beyond his duty, or to restrain him in the performance of some statutory duty from
doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of
injunction.
Mr. ISAACS.-Would not that be so under sub-section (3) of clause 77 in any case?
Mr. BARTON.-I do not think that it would. My honorable and learned friend has argued
45 that a provision relating to all matters in which the Commonwealth or a person suing or
being sued upon behalf of the Commonwealth, or to which the Commonwealth is a party,
would cover the case, but I do not think that it would. It is a grave question whether the
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expression "a person suing or being stied on behalf of the Commonwealth" does not mean a
person who is being simply impleaded in an action of law. That is more strongly shown by
reference to the other words of the clause, because original jurisdiction is given in cases to
which the Commonwealth is a party, but only in respect to a person representing the
5 Commonwealth, that is, a person suing or being sued upon its behalf. I think there is the
very gravest doubt as to whether the words in subsection (3) of clause 77 would be
sufficient authorization for an original jurisdiction. Now I come to the point raised by the
honorable and learned member (Dr. Quick), that this does not specify all the writs in
respect to which jurisdiction may be exercised. But it was not intended to do that. A writ of
10 habeas corpus is a common law writ, in regard to which you have no trouble as to its
exercise. It is one of the rights which the subject carries with him so long as he is within
British territory, and there is no necessity to put enabling words as to that writ into the
Constitution. Even in America, where they had acted up to the time of the framing of the
Constitution under the rules of the common law of England, and where they still do so
15 except where they have statutory provisions limiting or modifying or taking away its
operation-even there it was not held to be necessary to place any provision in the
Constitution to insure that the writ of habeas corpus should run. All that was held
necessary was to protect the writ of habeas corpus by preventing it from being suspended
under the circumstances mentioned in section 9. So we come back to [start page 1885] this
20 position. What we want here in the case of these three writs, which are specially in their
nature addressed to persons who may be carrying out the provisions of the statute law, is to
enable proceedings against those persons to be taken directly in the High Court, instead of
its being necessary to go first to another court and then to proceed on appeal to the High
Court. If we do not insert a provision in regard to this matter into this clause, then in such
25 cases application will have to be made first to some court other than the High Court,
because you have not given the High Court jurisdiction.
Mr. ISAACS.-But you have empowered Parliament to confer it.
Mr. BARTON.-Yes; but application will have to be made to another court first, because
you have not given the High Court original jurisdiction. The matter can only come before
30 the High Court after it has filtered through another court, and by way of appeal. Is it not
right, however, that the subject should be empowered, when he has a right to one of these
writs against an officer of the Commonwealth, to go to the High Court at once-to the court
which protects the Constitution-to obtain his rights under the Constitution? That is the sole
question. The Premier of Tasmania seemed to have great doubt as to whether this provision
35 did not confer rights. I would, therefore, point out to him that it does not enable the High
Court to grant a prohibition or a mandamus or an injunction against an officer of the
Commonwealth unless the law already enables that to be done. The object of it is to make
sure that where a person has a right to ask for any of these writs he shall be enabled
to go at once to the High Court, instead of having his process filtered through two or
40 more courts. I think that the honorable and learned member (Dr. Quick) will see why other
writs are not enumerated. This provision is applicable to those three special classes of cases
in which public officers can be dealt with, and in which it is necessary that they should be
dealt with, so that the High Court may exercise its function of protecting the subject against
any violation of the Constitution, or of any law made under the Constitution.
45 New sub-section (7) was agreed to.

END QUOTE
And
QUOTE
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Mr. ISAACS.-If a man is tried in a Supreme Court he has an inalienable right of

appeal to the Federal Court. At the General Sessions he may be given a much heavier
sentence, but he has no right of appeal to the Federal Court.
Mr. OCONNOR.-With all respect, I do not think this touches that point.
5 Mr. ISAACS.-That is what you are doing here.
Mr. OCONNOR.-No; a man subject to a sentence of any kind is entitled now to appeal
to the Supreme Court of the state.
An HONORABLE MEMBER.-No, not under this section.
Mr. OCONNOR.-I am taking it step by step, and I am taking the law as it is now. A man
10 is entitled to an appeal to the Supreme Court in all the states.
Dr. QUICK.-Unfortunately that is not the case in this country, although, I admit, it is by a
mistake in our legislation.
Mr. OCONNOR.-That may be; but I am speaking with regard to most of the colonies. It
is true that there is a right of appeal generally in criminal cases.
15 Dr. QUICK.-No.
Mr. OCONNOR.-Whether there is or not, there ought to be. There can be no question
that if you allow a right of appeal in cases of property, there ought to be a full right of
appeal, in all cases where a man's liberty, and perhaps his life, is involved. I am
pointing out that there is a, great deal of difference in restricting that right of appeal
20 in a case where you have to appeal to the Privy Council, in which case the decision
may not be given for some months, and where you can appeal to a Supreme Court in a
few weeks. I think that the right of appeal in all criminal cases ought to be reserved to
the High Court, which we have put here in place of the Privy Council. But you would
put it in the power of the Legislature to take away that class of appeal altogether. It
25 would be better to use the words here which would enable the Legislature to make a
law leaving the determination as to the terms of appeals to the High Court. Probably
the Federal Court would be the best authority to decide the conditions of appeals.
Mr. ISAACS.-Would not this allow a case to be reheard in the Full Court?
Mr. OCONNOR.-No; that would be to completely reverse the common law as we know
30 it.
Mr. ISAACS.-You are going to do that here.
Mr. OCONNOR.-I do not think so. But whether that is so or not, this amendment would
not make any difference one way or the other. I hope that earnest attention will be given to
Mr. Glynn's appeal, and to the cases which he has cited. This is not an imaginary danger,
35 and although we need not impute any improper or indirect motives to the Parliament, we
ought to take care that this High Court, which we are setting up instead of the Privy
Council, will insure an appeal in all cases where appeals ought to be allowed.
[start page 1892]
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Mr. HOLDER (South Australia).-There is another matter which bears on this question,
and which suggests the importance of exceptions. There is included in the 140 amendments
suggested by the Drafting Committee an amendment in the latter part of clause 74
involving what is a new matter. It is not merely a drafting amendment. It refers to appeals
5 from the Inter-State Commission. Surely it was intended that those appeals should only lie
on questions of law. I cannot understand our allowing appeals on questions of policy or of
fact.
Sir GEORGE TURNER.-We fought several days against that.
Mr. HOLDER.-Appeals on points of law certainly ought to lie, but not appeals on
10 matters of fact.
Mr. KINGSTON.-And appeals on points of law are not provided for in all cases.
Mr. HOLDER.-I do not know that there may not be cases in which appeals on
points of law would not be allowed. At the proper time I shall seek to make an
addition to the clause; but in the meantime I shall ask the Drafting Committee to
15 consider it.
END QUOTE
.
QUOTE
20 Mr. BARTON (New South Wales).-I am in very grave doubts as to whether Mr. Glynn
will gain anything by inserting this definition in the Bill. I am inclined to agree with both
Mr. Reid and Mr. Isaacs that, as submitted, it amounts to a limitation. And, even if it is
altered in the way Mr. Isaacs has suggested, I do not think it would really [start page 1953]
work any good thing for the benefit of the object which Mr. Glynn has in view. If we are to
25 attach any value to what has gone before in the interpretation of such a clause as the trade
and commerce clause, it strikes me that the commerce that goes on among the states, or
between any part of the Commonwealth and a foreign country, is under the regulation of
the Commonwealth, and it does not seem to me to matter where the commerce is found. A
river may be practically a road which is for the time being impracticable. Commerce may
30 be impracticable on a river which for a time is too shallow, if not dry. Bat whether the
commerce arises and takes place from one state to another, no matter how many states may
intervene, then, whether that commerce be carried by road, river, or rail, it seems to me to
be interstate commerce, and subject to the jurisdiction of the Commonwealth authority. If
that is so-and it seems to me a quite sound view-there is no necessity for any definition. I
35 speak with some feeling on this subject, because from the beginning to the end I have been
prepared to take the risks of the trade and commerce clause, whether as regards the use of
water or the regulation of traffic, and I have consistently opposed any limitation or
definition which might in any way control the power of the Commonwealth to deal, as to it
seems just, within the limits of the Constitution, with any trade or commerce between the
40 states. That is the position I hold now, and I think, therefore, that Mr. Glynn's amendment
is unnecessary. I do not think it can take any effect in extending the power of the
Commonwealth to deal with inter-state trade and commerce wherever it finds that trade and
commerce; and I am perfectly willing that that power should be properly maintained by the
Commonwealth.
45 Mr. GORDON (South Australia).-I have felt very keenly on this subject, as honorable
members know, and I am rather inclined to ask Mr. Glynn not to press his amendment.
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While I think that a definition of this kind is exceedingly desirable, I agree with Mr. Isaacs
that it is more than difficult to insert a definition in this Bill. Moreover, I cannot conceive
of the High Court holding that the River Darling, which is the crux of this question, is not a
highway of commerce, whatever the English decisions under the common law have been.
5 Mr. BARTON.-The High Court will not have to decide whether the river is navigable,
but whether there is an infringement of the power of the Inter-State Commission to regulate
commerce on that river.
Mr. GORDON.-I am aware that it is a contradiction in terms, but I think a river may be a
permanent highway for commerce even if navigation on that river is not continuous. It is a
10 permanent highway for commerce, with certain interruptions during the year. But I cannot
imagine the High Court deciding that the Darling is anything but a navigable river.
Mr. HIGGINS.-Is it a permanent highway for boats or buggies?
Mr. GLYNN (South Australia).-It is sometimes a mistake to vary one's amendments in

deference to the wishes of honorable members. When I first introduced my amendment,
15 "navigable" was the word I used, but, in deference to representatives of New South Wales,
I changed it to "navigated." Then the very honorable members who induced me to make
that change attacked the amendment. It is a dangerous thing to bow to the prejudices of
your opponents in any way. In order that the amendment may be submitted as I originally
drafted it, I now ask leave to amend it by substituting the word "navigable" for the word
20 "navigated."
The amendment was, by leave amended accordingly.
END QUOTE
And
25 QUOTE
Mr. GORDON.-My right honorable friend will not dispute that it leaves to New South
Wales the right to take every drop of water out of these rivers within her own boundaries.
Can my right honorable friend say that that is not the meaning of this clause?
Mr. TRENWITH.-And never let it go any further.
30 Mr. GORDON.-And never let it go any further. That may possibly appeal to the
selfishness of people in the various colonies; but will it appeal to common sense, to natural
justice? It is a reversal of that natural justice which underlies the apportionment of waters
under the provisions of the common law. Surely the honorable gentleman cannot seriously
contend that they should embody in the Constitution a proposition which is a reversal of all
35 the dicta of that natural justice which governs communities and really keeps the world
sweet. It cannot be that they wish to em body in the Constitution a proposal of that kind.
Therefore, if we are going to formally concede the predominance of irrigation over
navigation, and if we are going to carry any proposition to that effect, it must have this
qualification-and I am now using the words, as nearly as I can remember them, of an
40 amendment which Mr. Isaacs formerly introduced-"on a basis of distribution of such waters
just to the several states through which the rivers by themselves or by their continuations
run."
Mr. ISAACS.-Who is to determine the justice?
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Mr. GORDON.-Only somebody sitting as a jury. We cannot absolutely define [start

page 1970] what is going to happen under all the provisions of the Constitution. We
must leave something to the sanction of justice which will animate the Federal
Parliament and the subsidiary bodies it will appoint to consider these matters. I see
5 the difficulties, of course, but the difficulty of arriving at an idea of what this will lead
to is nothing as compared with the difficulty of conceiving what will happen. if the
clause is carried without any qualification. There then we will embody in the
Constitution the possibility of an absolute injustice, and crystallize a selfishness
unknown to any civilized nation. I think it will be a disgrace and a blot to the whole
10 Constitution if that proposition is carried without amendment, and, therefore, I move,
although I shall vote against the clause even if it is amended-
That the clause be amended by the addition of the following words:-"upon a basis of
distribution of such waters just to the several states through which the rivers by themselves
or by their continuations run."
15 END QUOTE
And
QUOTE
Mr. REID (New South Wales).-To show my honorable friend that I am willing to meet
him so far as I can, I will agree to the insertion of the word "reasonable" before the word
20 "right"; but not to its insertion in any other place.
Mr. ISAACS.-All rights are reasonable.
[start page 1990]
Mr. GLYNN (South Australia).-I should like to draw the attention of the committee to
the cases which the Attorney-General of Victoria cited some time ago. If I am not mistaken,
25 in his reference to the subordination of the principles of the English common law to the
necessities of irrigation in some of the states of America, he pointed out that the words
"reasonable use" came into the decisions. I cannot find these cases now; but I remember
perfectly well that the rights granted for the purposes of irrigation in abrogation of the
general principle of English common law of riparian ownership provided for the
30 "reasonable use" of the water. In regard to this principle of federal control, I should like to
draw the attention of honorable members to what has been done in Germany. In this
connexion I should like to read the following passage from the German Constitution:-
Rafting and navigation upon those water-ways which are common to several states, and
the condition of such waters; also the river and other water dues.
35 It is this principle that we wish to affirm in the Constitution.
Mr. ISAACS (Victoria).-I am afraid that wherever the word "reasonable" is placed,
whether before the word "rights" or before the word "use," it will not have the effect
desired by the honorable member (Sir John Downer).
Mr. REID.-At any rate, it would be a very good finger-post.
40 Mr. ISAACS.-No. The insertion of the word "reasonable" before the word "rights"
would, I think, have no meaning at all. If it were inserted before the word "use" it would
restrain New South Wales, for example, from making an unreasonable use of the waters of
its rivers for conservation and irrigation. But, I would ask, what is to be the standard of
reasonableness? It would be reasonableness as between the necessities of irrigation and
p 427 9-3-2009
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conservation, and the necessities of navigation. The question would not be asked as to the
reasonableness of the use as affecting the rights of two states. When you give the power to
control navigation to the Federal Parliament, and you say that nothing in that power shall
prevent a state from making a reasonable use of its waters for irrigation and conservation,
5 the reasonableness is to be judged as between the necessities of water conservation
and irrigation and the necessities of navigation, and not as between the rights of two
states.
Sir John Downer's amendment was agreed to.

END QUOTE
10 .
The following quotations of the 1-4-1891 Constitution Convention Debates underlines that the
Prime Minister albeit not specifically mentioned in the Constitution itself always was intended
to be heading the Government of the Day albeit under the Governor-General and that electing a
Governor-General was rejected. Other parts of the Constitution Convention Debates also makes
15 clear that the appointment of a Governor-General by recommendation of the Australian
Government was held inappropriate and undesirable because it basically would then become
some contest between who may sack whom first in a dispute. Also, that the Governor-General
then would be no more but a puppet for the Government of the Day.
For the High Court of Australia to purport in Sue v Hill that somehow the Commonwealth of
20 Australia is some independent nation would place the governor-General under the supervision of
the Government of the Day and can be sacked at the ill will of such a government. It basically
would turn a Prime minister into the ultimate powerhouse and we have seen with the
unconstitutional wars such as into Iraq upon alleged WEAPONS OF MASS DESTRUCTION,
etc, how catastrophic this can be for those suffering at the hands of such power manipulator and
25 how any repeat may even result in the commonwealth of Australia itself getting some of its own
medicine.
.
Still, as is clear the Framers of the Constitution made clear that it is embedded in the Constitution
that it is under the “British crown” and that it is the legal link. Hence, the High Court of
30 Australia can seek to manipulate is judicial powers as much as it likes but it cannot amend the
Constitution to avoid royal assent by the British Crown for either the Commonwealth or any
State and as such any State in that regard purporting no longer to be under the British Crown has
no constitutional powers to legislate.
Therefore in that regard any legislation by the State of Queensland that fails to have royal assent
35 of the “British crown” must be deemed ULTRA VIRES and of no legal force. This then also
relates to the issue of FEE SIMPLE and so the manipulation of those rights by purported
legislative provisions.
.
40 QUOTE
Sir GEORGE GREY: I am afraid I shall lose my chance of moving an amendment to
this clause if I do not do it at this stage. I move:
That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted
with a view to the insertion of the words "There shall be."
45 The intention is that the governor may be elected. I feel that in bringing this subject under
the notice of the Convention I am entering upon very delicate and very debatable grounds
But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the
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manner in which this question is dealt with. This is a question of the interests of nearly
4,000,000 persons at the present moment who look to us; and it appears to me extremely
inexpedient that the power of appointing the governor-general to rule so vast a confederacy
should be left in the hands of any minister of the day in Great Britain. The terms used are
5 "the Queen shall appoint"; but we all know perfectly well that that means that the
minister for the time-being shall appoint such person as he pleases, whilst such
appointment might be absolutely obnoxious to her Majesty herself. The meaning of
the thing is that a friend or any other person chosen by the minister may be appointed
without the people of this great confederacy being in any way consulted. I understand
10 that the reason usually alleged for that by persons who support the appointment being
made by the Queen is that a social appointment is to be made. That is the term usually
applied-it is a social question, and not a political question. I contend that the question is
twofold, and those two things cannot be separated. The governor has political functions
to exercise and he has social functions to exercise, and in either case I hold that a
15 person so appointed is much less fitted to exercise those functions than a governor-
general chosen by the people of the country would be. I do not understand how it can
be said that any social ends whatever, or, at all events, of [start page 562] any
magnitude, are attained by the appointment of the governor-general by the Crown;
but I do hold that social ties and social questions of the strongest possible kind require
20 that the governor-general should be elected by the people of the confederacy. Take the
case of a widowed mother, herself well educated, perhaps brought up as a teacher in
one of your public schools, and possessing great ability; imagine her with her
orphaned children, deprived of a father, night after night teaching those children,
with a hope that the highest offices of the state of every kind may be open to them all.
25 Is not that a social question-a social gathering of the highest and noblest kind? And
hundreds, I may say thousands, of such social gatherings would be witnessed every
night in this great commonwealth, if all the highest offices of state were filled by
election by the people. If you follow it out, you will find that in all social relations of
the family-fathers, mothers, children, brothers, sisters-this question is intimately
30 concerned as being something which binds the whole family together for common
objects, and opens paths of distinction to every one of them, if they prove themselves
great and deserving men. Why should you say to all these 4,000,000 of people, "No
one of you, nor any one of the other millions who are to occupy this country, shall
have the slightest chance of ever attaining to an honor of that kind"-that it shall
35 always be open, as it certainly, or almost certainly would be, to distant persons with
no claim whatever upon the inhabitants of this country, all of whom would be shut out
from so great an opening as that of which I speak? It is more materially necessary that
we should consider this point now, and that we should come to a just decision upon it,
because I will show hereafter, as the discussion on the bill proceeds, that in every instance
40 all hope is shut out from the great masses of the colony to succeed to any one of the
important posts which under this bill will be open to the people of Australia. I say that,
looking to our duty to our Sovereign, we owe it to her to select the worthiest man we
know to represent her here-to be certain that the man so chosen is worthy to represent
her; and in no other way than by his being chosen by ourselves from people whom we
45 know can we be certain that the worthiest man will be chosen to represent the Queen
within the limits of the great confederacy which we are about to constitute.
Considering the openings that would be given to every inhabitant of Australasia
under such a system as I propose, with so many families, as will necessarily do it,
directing their every exertion and effort to raise up children worthy of the great
50 opportunities laid open to them, I ask whether this is not to us a greater social
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question than a few balls and dinners given at Government House, at which none but
those in the immediate vicinity can be present? I ask what comparison is there
between these two things-one great and far-reaching, extending to millions, the other
a mere sham, as it were, representing what passes in another place, as if one were
5 looking through the wrong end of a telescope at some procession that was going on?
All matters connected with Government House are diminished here as compared with
Great Britain and the influence exercised there. There it is the influence of an
hereditary monarch descended from a long line of ancestors. There it is the influence
belonging to certain professions-the army and navy-who look to receiving honor from
10 the hands of such a sovereign. Here there are no ties whatever of that kind; and yet
for a mere imaginary show, or what is called the performance of social duties-
entertaining strangers and also citizens immediately surrounding the vice-regal court,
which are the only benefits that are abso- [start page 563] lutely gained-all those
benefits that I speak of are lost. Let us look at it in another way, which is also worthy
15 of our consideration. What is the necessary consequence of having a governor-general
of this kind, with an enormous salary, and vast expenditure upon various subjects-a
salary more than adequate to the duties to be performed? You will find set down in
this bill a salary of £10,000 a year.
The VICE CHAIRMAN: I ask the hon. member not to discuss that matter, as the
20 question of salary is dealt with in the next clause.
Sir GEORGE GREY: I find a difficulty in separating the two questions. They may be
separated in clauses; but the one argument will hardly carry the full meaning of what it is
necessary for me to say so that the matter maybe understood. I hardly see how it is possible
for me to divide the subject, because if I admit that the governor-general should be
25 appointed by the Crown, what is the use of my afterwards arguing about the salary? If,
whilst I am arguing upon what must follow upon the appointment of governor-general, I
cannot refer to the salary, how can I make the matter thoroughly understood? I would
submit, sir, that this is a case in which clearly it is impossible to separate the two.
Mr. FYSH: Go on!

30 Sir GEORGE GREY: Well, I can allude generally to the subject of powers and
functions. Limiting myself, then, to the use of the term large, salary, may I say, without
naming the exact amount, that the President of the United States, until but lately, received
£6,000 a year for his salary for ruling 40,000,000 people, and at the present time I believe
his salary is £10,000 a year for ruling 60,000,000 people, and daily augmenting in number.
35 Here we are expected to pay at least as large a salary as is paid to the President of the
United States for ruling 60,000,000 people, and to pay a governor-general nominated by the
Crown. I ask is it just whilst so many poor people have to be taxed to pay their share
of that salary, to deprive them of the honor, and, I may say of the just pride, of
themselves electing some worthy man, known throughout so great an extent of
40 country as Australia, to occupy that honorable post, with the certainty that such an
example will operate upon every individual of the community, stirring noble faculties
in many men, giving hope, perhaps, to some thousand or more of the people that they
may possibly attain to such an honor? Is it right to make the people pay such sums of
money, and to deprive them of honors to which they ought justly and rightly to look?
45 And when, as I shall prove by-and-by, as we go on with the bill, each office is closed
by some restriction or other to all chance of fair competition in the country, let us, at
the very first, indicate in this clause that this great office shall be open at all times to
p 430 9-3-2009
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that man in Australia who is deemed the greatest, and worthiest, and fittest to hold so
noble a post, and to satisfy his fellow-citizens that they have wisely chosen one who
will be an honor to the whole community. Can any of us believe that if at the time of the
disturbances in the United States in regard to slavery a man had to be chosen by the British
5 ministry of the day in London, there was the slightest hope that such a man as Lincoln
would have come to the front to achieve the great and noble objects which he
accomplished? I am sure the universal admission must be that there would have been no
hope of such a thing. Yet from the forests of the United States there came one who had
been a mere splitter of timber, worthy justly and rightly to exercise the highest power for a
10 time in the United States and to accomplish the great ends at which he aimed. Are we in
Australia to be told that also can find no man worthy to succeed to a post of that
kind? Are we to be told that we must [start page 564] forego the chance of selecting a
man of that sort, and that some thousands a year must be expended unnecessarily,
when the money might be applied to great and good objects? And if it should be so
15 expended will it be for the benefit of the people? No. I say it will be to their detriment,
by depriving them of such just objects of ambition-objects just in themselves, find
which would soon be dear to the hearts of all. To my mind, to subject the people of
this new federation to a rule of this kind is to degrade, and not to ennoble; is to lower
them in their own estimation, instead of raising them in their own estimation; is to say
20 that they are not worthy to compete with their fellow-men in other parts of the world.
As far as it rests with myself, I know that I am venturing upon dangerous ground. I
know that I must raise enmity in many minds by what I am doing.
Hon. MEMBERS: No!
Sir GEORGE GREY: But I feel it my duty to run this risk in order to tell what I
25 believe to be impregnable truths, and to try to lead this Convention to do that which I
am confident will stamp greatness upon every man who assists in obtaining that
benefit for his country. I believe that those who force this clause into this bill, instead
of not having done good to Australia, will virtually have conferred a great benefit
upon the country by creating a necessity for a discussion of this question. If, now that
30 the question has been raised, it is decided in favour of the people of Australasia-if they
are told that this great boon is open to them; if this night we send a thrill from one
part of the country to the other with the news that this great object has been attained,
I say it will have been for all those who have aided in it one of the happiest days in
their lives, and that they will be benefactors to countless generations yet to come in
35 having obtained so great and good an object for them. And further than that, I say
that to attain this object, to gain this principle will be to ensure for a long period of
time the love of Australasia for England; to remove to a greater distance all chances of
separation between the two countries, and to lead me, and I believe many others, to
rest assured that a step of the strongest kind has been taken to strengthen the great
40 union of Australasia for yet centuries to come, instead of endangering it, as I am
certain will be the case, by blocking that union with the disastrous admission that we
must take from Great Britain such governor-generals as she may please to send out,
and that none of the citizens of this country may hope to obtain that great and, shall I
call it, magnificent office. Actuated by these sentiments, I have felt it my duty to raise
45 this question, and I trust that I shall have some support, if not a majority of the
Convention, ill favour of that which I ask for.
Amendment proposed.
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p432
Mr. MUNRO: I am rather surprised at the hon. member, Sir George Grey, bringing this
question forward at the present time.
Dr. COCKBURN: He mentioned it in the former debate!
Mr. MUNRO: The hon. gentleman was a member of the committee which drafted the
5 bill. Was not the matter thrashed out by the committee?
Sir SAMUEL GRIFFITH: We are not bound by the report!
Mr. MUNRO: I do not say we are; but the hon. gentleman told us that the arguments
made use of in the committee were sufficient to convince him that he was wrong, and I
thought the same course might have been followed on the present occasion, because if he
10 was wrong in his views then most assuredly he is wrong now. The hon. member tells us
that one of the great effects of electing our own governor-general would be to put him in
the position of Abraham Lincoln-to give him similar [start page 565] powers and a similar
position. Under our form of government that position is occupied by the Prime
Minister, and no matter whether the governor-general were elected or not, he could
15 not under constitutional government exercise the functions which Abraham Lincoln
exercised. No governor-general could undertake that responsibility, whether
appointed by the Crown or not. If the hon. member's argument were carried out to its
legitimate issue the people of England ought to elect their sovereign. That is really
what it means. The governor-general is to appear here as the representative of the
20 Queen. Under our constitution the Queen is to be in some sense present among us.
The only way in which we can have her present is through her representative, and if
her representative is to be elected by us, and not by herself, he will be not her
representative, but ours. To carry the hon. member's argument to its legitimate issue,
therefore, he ought to say that the people of the empire should elect their own
25 monarch. That is what it means. If the hon. member is not prepared to say that, he
ought not to go to the extent to which he wishes to go. I do not think, however, that
this is a matter to which we ought to devote much time at this stage; because, since we
have already agreed-and we have done so that we are to have a form of constitutional
government under the Crown, we must allow the Crown the power of being
30 represented in the union. If we carry out the proposal of the hon. member, the result
would be that we must abandon the proposed union, and have a union in a different
direction, certainly not under the Crown. The hon. member said the result of his
proposal would be to strengthen the union with England; but I think few persons will
agree with him in that respect. I think the people of Australia will agree with me that
35 the result of his proposal would be to weaken the union. We should, in fact, begin to
ask why we were connected with England at all. If we could appoint our own
governor-general, if we could carry, on all our legislation, and do the whole of our
business, the question would soon be asked what we had to do with England, and then
where would the connection be? I do not see the necessity for considering the hon.
40 member's proposal at the present time. I am proud of being a citizen of the great
British empire, and shall never fail to be proud of that position. I have no desire to
weaken a single link binding us to that empire, whether as regards the appointment of
a governor-general or anything else. I desire to hold those links sacred, and if possible
to strengthen them, and I am satisfied that in making his proposal the hon. member is
45 not consulting the feelings of the people of Australia.
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Sir GEORGE GREY: I wish to answer a few of the arguments raised by the hon.
member. I understood him to say that Abraham Lincoln would not be wanted here.
Mr. MUNRO: I did not say that. I said that our governor-general could not do what
Abraham Lincoln did in America!
5 Sir GEORGE GREY: And that in that way he would have been unnecessary.
Mr. MUNRO: That be would be unable to do what Abraham Lincoln did!
Sir GEORGE GREY: But the hon. member has not touched upon this point, What
would be the effect of opening this great office to all, of raising up Abraham Lincolns
as ministers to advise the governor-general? That is the point. By raising such men,
10 the governor-general would obtain better advice than he would be likely to obtain if
the offices were not open. I have no doubt whatever that this is a complete answer to
that question-that the one thing is to raise many Abraham Lincolns in the state.
Should we be the worst for it? They might not be necessary to-day or [start page 566]
at any particular moment, but undoubtedly it would be a great object. There is
15 another phase of the question which the hon. member raised-that it would amount to
severance from the empire if the Queen did not appoint the governor-general. The
Queen does not appoint the governors now. Ministers advise the Queen as to who
should be appointed; but I say that you should rather allow the whole people to give
the advice. Why cannot the united people of Australia be capable of choosing a man,
20 and advising the Queen as beneficially as a person who knows nothing about us, and
who may be in the hands of colonists at home who are spending large fortunes in an
endeavour to get into high life in England, and who may possibly mislead official
persons there as to what the desires of the colonists are. I have heard no single reason
advanced that would induce me to change my mind in the least degree. Let me hear
25 some good and conclusive answers given to my argument, and I will deal with them;
but do not let the subject be dismissed without any reply being made. Let us fairly
argue out one of the greatest questions that can occupy our minds in connection with
this bill. I am ready to answer any arguments that way be brought forward; but I
cannot see that there is any weight whatever in the arguments of the last speaker.
30 Sir SAMUEL GRIFFITH: I am, to a great extent, in sympathy with the object
desired to be attained by Sir George Grey. I believe the highest offices of the state
ought to be open to its own citizens; but I do not think it follows that the necessary
way to bring about that result is to provide that the governor-general shall be directly
elected by the people. Probably the greatest difficulties which have arisen in the United
35 States are owing to the manner in which the president is there elected, If you have a direct
election of the president by the people, or such an indirect election as has been
substituted for it there, the practical result would be that at every election of the
governor-general there would be a canvassing throughout the whole dominion or
commonwealth by the representatives of respective parties, and the governor-general,
40 when elected, would regard himself as the nominee or head of a party, and would
devote a great part of his time and attention to securing his re-election. These we not
the objects which the hon. member, Sir George Grey, desires to attain. I am inclined
to think that this is one of those matters that will work out by itself. I am much
inclined to think that before many years are over not only the governor-general, but
45 the governors of the different Australian colonies, will practically be appointed, not,
perhaps, by the direct election, but with the full consent and concurrence, known in
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advance, of the people of these colonies. I believe the tendency is strong in that
direction at the present time. I know that other members of the Convention are of a
different opinion. I am now expressing my individual opinion. I believe it will be to the
interests of the Government of England to appoint the best men, men acceptable to
5 the people of the commonwealth, and that they will exercise all proper care to bring
about that result. I have no doubt, especially considering the greatly altered
conditions of the commonwealth, that great weight will be paid to the wishes of the
people, and that some means will be found of nominations being made, if not directly
by the Australian commonwealth, yet under such circumstances as to secure
10 appointments which would be known to meet with the concurrence of the people of
these colonies. I am of that opinion; I cannot say how it will work out in detail. I
believe, also, that when the people of Australia are of opinion-and surely an opinion
may be shown in other ways than by [start page 567] an act of parliament-that it is
desirable that a distinguished Australian should be appointed to the office of
15 governor-general, some instances will be found-if, indeed, the course is not invariably
adopted-in which distinguished Australians will be appointed to the position. That, I
take it, is all that the hon. member, Sir George Grey, desires to attain; and it can,
compatibly with the retention of our relations with the Crown, be attained by leaving
the appointment as it is proposed to be left, in the hands of the Queen.
20 Mr. KINGSTON: I cannot help sharing the sentiments which have been expressed
by the hon. member, Sir George Grey, as regards the desirability of our possessing the
power of at least altering the present practice with reference to the appointment of
governors. We need not go very far back in our history to recollect occasions when the
public mind was profoundly agitated on this question, and a desire was very generally
25 expressed in some of the colonies, at least, that the people of Australia should exercise
a much larger power in connection with the appointment of governors than they do at
present. Looking at the bill, I find that this growing sentiment is recognised to a
certain extent. It is recognised so far as the various states are concerned by provision
being made in the bill enabling the state parliaments to alter the practice as they may
30 see fit. We should be proceeding wisely and in a way which we should be able to
defend, if we conferred the same power on the federal parliament. Sir Samuel Griffith
has said that in the natural order of things something will be done to give effect to
Australian aspirations in this direction. Something has been done so far as the states
are concerned; and surely it is only a logical sequence that the same power should be
35 given to the federal parliament.
Mr. MUNRO: We have not yet given that power to the states!
END QUOTE
And
QUOTE
40 An HON. MEMBER: We do not send all our laws home!
Sir GEORGE GREY: Yes we do. The hon. member does not know what he is saying.
Every one of our laws goes home for the Queen's approval. The hon. gentleman who denies
that knows nothing of the Constitution. Although our laws are assented to here, they go
home to the Queen. Assent being given to them here only brings them into immediate
45 operation. Hon. members are entirely ignorant of what they are talking about. Full power is
given to the Queen to allow or disallow our laws. There can be no stronger tie than that
binding us to Great Britain. Just fancy 4,000,000 people going to the Queen as soon as
they have an opportunity to make their own constitution, and saying, "We will still
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send every law we make to that Sovereign whom we-I was going to say almost adore-
in order that she may assent to or dissent from the measure." What stronger tie than
that can bind us to Great Britain? What stronger proof can we give of our devotion to
the British interests? What will a few balls at Government House, or the presence of a
5 governor here, do to alter that? The very gentlemen who argue in that way say to me:
First you make a governor-general something that he ought not to be; he is advising
his ministry instead of his ministry advising him. Then immediately afterwards they
say, You must have a governor-general appointed by the British ministry in order
that he may let them know what the British interests are, and look after them. The
10 two things are absolutely contradictory.
END QUOTE
And
QUOTE
Sir JOHN DOWNER: Listening as I do, with the greatest pleasure to everything
15 that falls from the hon. member, Sir George Grey, I should be anxious in every way to
agree with him if I could by any means bring myself to concur in his views. If the hon.
gentleman had commenced his argument by asking what was the necessity for a
governor-general, or for a governor at all, he might have appealed to the sympathies
of a good many of us, because, as Mr. Deakin said, the office both of governor-general
20 and of the local governors must in the nature of things be so much of the character of
ceremonials, and have so little substantial authority, [start page 572] that had the hon.
gentleman suggested that we should dispense with these-as some persons might consider
them-baubles, there might have been a good deal to be said in favour of the proposition.
But when the hon. gentleman, who I think generally believes in the British Constitution, at
25 the same time advocates with such earnestness, eloquence, and seriousness the appointment
from amongst ourselves, and from our own population of the gentlemen occupying the
position of governor-general, I would ask him in what position will the governor-general be
when he is elected? If he is elected by the voice of the people, does the hon. gentleman
assume that history will not repeat itself, and that the governor-general will not assume a
30 position something like that of the President of the United States, so that the cry amongst
political parties will be, "Who is for the president, and who is against him?" If what we
want to do is to get rid of the authority of the Queen, and to make the real substantial
authority of the realm the person in the position of governor-general, the way to do it is to
appoint the governor-general in the way the hon. gentleman suggests; but if we want to
35 retain the authority in the people-apart from the question whether it is to be in the senate or
in the house of representatives, or in both co-ordinately-subject to the authority of the
Sovereign, it would be inviting at once an interference with that authority to put at the head
of the government a person elected by the people, and who, from the very nature of his
election, would speak with authority, and assume a dominion over the commonwealth,
40 which we are certainly not prepared to concede. I think the hon. gentleman must not
attribute to any one of us the slightest disrespect, or feel hurt because we do not arrive at
the same conclusions as be has arrived at, because, although, as the hon. member, Mr.
Deakin, said, as a general principle, we think that all authority should come from the
people, and that all officers should be elected by the people, we are not prepared to
45 interfere with the cardinal principle of our constitution, and that is, that the nominal head of
the government should be only the nominal head of the executive, and not become a real,
substantial, legislative force in the community.
Sir GEORGE GREY: I have two sets of arguments which run in very nearly
parallel lines to answer. The first of the two last speakers, I should say, has overlooked
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one point altogether. The Sovereign of Great Britain has a great stake in the empire
and in Great Britain -the preservation of the throne for her race-and she has also
great authority. Hon. gentlemen also overlook this fact, that on many occasions the
Queen has been the adviser of her ministers. She has been consulted by them, and her
5 advice has been gratefully taken. It has been the advice of one agitated by no political
passions, by no feelings of animosity against different persons such as are engendered
by debate, and in many instances this advice has been of the greatest possible use to
the nation, and I contend that over and over again crises have taken place in these
colonies where the opinion of a governor elected by the whole of Australia, who was
10 also a man of ability, and therefore entitled to respect of the highest kind, might have
been of the greatest possible use. I believe that if in dealing with all these labour
questions we had such a man of philosophic mind, of trained intellect, not agitated by
the passions of debate in parliament, not elected by a certain party in the state, and
therefore representing them and bound to protect their interests-I believe that if the
15 government had had an adviser of that kind many and great difficulties would have
been avoided.
END QUOTE
.
20 QUOTE
Mr. DEAKIN (Victoria).-I do not propose to detain the Convention with any reply,
except to point out that the contention of Mr. Barton in no respect applies to the matter
submitted to the Convention. I agree with him entirely in his constitutional construction of
the prerogative, and, indeed, went so far out of my way as to quote Todd to put it beyond
25 all doubt. But what are the facts? It took ten years' fight in Victoria to get the question
settled, and we have it on the testimony of Mr. Brunker that a struggle has been waged in
New South Wales. Todd furnishes an instance in which a Ministry lost its life in South
Africa in this struggle, after a prolonged political conflict. Under the circumstances, it
seems desirable there should be no ambiguity. We are not dealing with common law, but
30 with a statutory power, and desire to place these powers beyond all dispute. What I would
prefer is not the introduction of the words suggested, but such a definition of the term
"Governor-General" as would remove the ambiguity which it appears to me exists. The
leader of the Convention has told us that the words "Governor-General" or
"Governor-General in Council" have been used by the Drafting Committee according
35 as the prerogative has, or has not, been practically surrendered to Parliament. That is
not to be found on the face of the measure, and it is always in these cases open to
question whether in any particular instance the prerogative has or has not been
abandoned. These doubts might be set at rest if there were a definition clause setting
forth the sense in which the term "Governor-General" is used in the Constitution.
40 Mr. BARTON.-The term "Governor-General in Council " when used means the
Governor-General in Council with the advice of the Executive.
Mr. DEAKIN.-And what does "Governor-General" mean?
Mr. BARTON.-That means the ordinary powers intrusted to the Governor-General

by the Queen.
45 Mr. DEAKIN.-And these are to be exercised by him only on the advice of his
Ministers?
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Mr. OCONNOR.-When you only find the term "Governor-General," that means
the prerogative.
Mr. DEAKIN.-On that prerogative Governors have made claims, which have received
some recognition, to exercise more power than they claim when the term "Governor-
5 General in Council" is used. Under clause 70, any distinction which exists between
different exercises of prerogative powers by our Governors are to be preserved in the
Commonwealth, and govern the relations of the Governor-General to each particular [start
page 2258] state according to the differing practices which may have existed. The difficulty
I have mentioned might be settled by some general provision or definition. On account of
10 the strong feeling which exists in some of the colonies, I propose to press this matter. I do
not at all insist on the form of the amendment, but call the attention of the Drafting
Committee to the necessity of putting beyond all question the sense in which the term
"Governor-General" must be accepted. This prerogative power should be exercised, as
practically all other powers now are, on the advice of the Executive, or of one of its
15 members.
Mr. OCONNOR (New South Wales).-It appears to me, with all respect, that Mr.
Deakin has not quite appreciated the meaning of the section. We do not wish to put
the Governor-General here in the position of being any less the Queen's
representative than the Governors of the various colonies are at the present time.
20 What is the position of the Governor of each of the colonies at present? By virtue of
his office the Governor of each of the colonies is Commander-in Chief of the Forces.
The letters patent appointing the Governor constitute him Commander-in-Chief of
the Forces, and in England it is pointed out the Queen is Commander-in-Chief of the
Forces. The only meaning of that is that the prerogative power of commanding the
25 army is vested in the Queen, or in the representative of the Queen.
Dr. COCKBURN.-Has the Queen of England ever claimed the right to settle a question
of discipline as a Governor has done here?
Mr. OCONNOR.-I will deal with that question later on. The Governor is
Commander-in-Chief of the Forces by virtue of his position. But the Governor cannot
30 move a step he cannot obtain possession of a rifle or a cartridge without the consent of
his Executive. It is a merely nominal appointment, and the power which he gets
nominally he cannot exercise without the means which are supplied by his Executive-
by the Governor with the advice of his Executive. That is recognised, not only in the
Governor's instructions, but in all the Acts dealing with the regulation of the
35 volunteer forces. For instance, in the very Act in New South Wales which Mr.
Brunker referred to, and under which a dispute occurred, the Governor is described
as Commander-in-Chief of the Forces as the Queen's representative.
END QUOTE
And
40 QUOTE
Mr. OCONNOR.-I quite agree, with the honorable member, but it would not be contrary
to this Constitution.
Mr. ISAACS.-That is the whole question.

Mr. OCONNOR.-I think it is perfectly plain that it would not be contrary to the
45 Constitution, because in the Constitution the Governor-General is described, as all the
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Governors in the different colonies are described, simply as Commander-in-Chief; and

taking power to raise, clothe, and equip an army by the act of the Governor with the advice
of the Executive Council, could not interfere with the position of a Governor as
Commander-in-Chief. As Mr. Douglas reminds me, in all the colonies the position of
5 Governor carries with it ex officio the position of Commander-in-Chief. Now, I am anxious
that this matter should remain as it is in the Bill, because I think it would be a reflection on
this Convention if the words of the amendment were inserted in this clause, because it
would mean that we did not really appreciate the distinction between the position of
Commander-in-Chief and the position of head of the Executive who had afterwards to deal
10 with the material matters in regard to which the Commander-in-Chief could not take a
single step.
Mr. SYMON.-Why the Executive Council would have to ride out with the Governor-
General as his staff.
Mr. OCONNOR.-Of course, they would have to take all the risks of the position. If
15 the Governor-General is Commander-in-Chief, and he has to go out as actual head of
the army, I should hope that every member of the Executive would take the position
of danger when the hour of danger arrived. I ask honorable members who support
this amendment what danger they anticipate?
Dr. COCKBURN.-The danger that the Governor might seek to decide all questions of
20 discipline.
Mr. SYMON.-Refer them to the men.
Mr. OCONNOR.-You must have some one Commander-in-Chief, and, according to all
notions of military discipline that we are aware of, the Commander-in-Chief must have
control of questions of discipline, or remit them to properly-constituted military courts. Dr.
25 Cockburn has referred to the trial of breaches of military discipline. Well, I should think
that one of the most material parts of any Act constituting the forces of the Commonwealth
would be to provide for the mode in which these court-martial would be conducted and the
Parliament would have abundant power to decide how these matters were to be conducted,
and what the particular form of the court was to be. It comes back to the same position as
30 before. The Commander-in-Chief can take any actual step, whether in regard to
carrying on the business of war, or deciding questions of discipline. But he has no
machinery to act on until Parliament brings all this machinery into force, and the
Commonwealth Parliament can do what they like in deciding what powers are to be
exercised by the Governor-General with the advice of the Executive Council, and
35 what powers are to be exercised by the Governor-General himself. I hope that Mr.
Deakin will recognise that the movements of the army must be controlled by the
Executive. This is not a matter of that kind, but simply a provision that the Governor-
General of the Commonwealth shall have, ex officio, the [start page 2260] same rights, and
nothing more than the rights, that the Governors of all the colonies have in this regard. I
40 hope the clause will be allowed to remain as it is.
END QUOTE
.
QUOTE
45 Mr. SYMON.-You have conflicting decisions in England as to what is a [start page
2307] navigable river; you have decisions upon the subject in America; and unless you
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have a court conversant with the conditions of things here you cannot get that Judicial
appreciation of the real matter to be determined which is essential.
Mr. CARRUTHERS.-Cannot you get those conditions in in evidence?
Mr SYMON.-You cannot get them in in evidence.

5 Mr. CARRUTHERS.-Of course you can.
Mr. SYMON.-If you got them in in evidence-some of them-you could not get them
appreciated as they would be appreciated by those conversant with the country.
Mr. CARRUTHERS.-Then the court would be deciding the case upon matters that were
not evidence.
10 Mr. SYMON.-My honorable friend knows that every contract is determined by the
surrounding circumstances of the business to which it is applicable.
Mr. CARRUTHERS.-That is in evidence.
Mr. SYMON.-One of the most influential newspapers in this colony, the Age, with a
view to getting over this difficulty, said that the presence of a representative in the Privy
15 Council of the colonies is a guarantee that Australian ideas will always have an exponent
there. But then I thought we did not want Australian ideas. What have we sent an
Australian Judge to the Privy Council for, I should like to know, if not for the purpose of
communicating to the Privy Council Australian ideas?
Mr. REID.-The desire came from the other side that there should be an Australian
20 Judge.
Mr. SYMON.-I was not aware of that; but that very greatly strengthens what I have been
putting.
Mr. KINGSTON.-It was carried in the Federal Council first.
Mr. SYMON.-The same desire is indicated or approved in the passage that was read by
25 Sir Joseph Abbott from Mr. Chamberlain's address. It was sought to permeate the Privy
Council with Australian ideas, so that it might do justice according to Australian standards.
Sir JOHN FORREST.-Colonial standards.
Mr. SYMON.-An Australian Judge was sent there for Australian appeals.
Sir JOHN FORREST.-One Judge.

30 Mr. SYMON.-That was the purpose for which he was sent. The Chief Justice of South
Australia was chosen, not with a view of instructing the Privy Council upon the common
law of England, or with regard to the cations of interpretation of statute law, but for the
purpose of instructing the Privy Council in relation to Australian ideas, so that they might
be better able to enter into the condition of things in reference to which the questions for
35 decision arose. Then my honorable friend referred to what he called local influence. Now, I
would ask him how does that argument apply to the thousands of cases under £500? If local
influence is bad, how are you going to free the multitudes of people of the country whose
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cases never go beyond £500 from the baneful effect upon our Judges of that local
influence?
Mr. ISAACS.-They are British subjects.

Mr. SYMON.-Yes, but they are only poor people, and therefore they are to be subject
5 to the consequences of all this improper local influence, to this bias, without any hope of
redress. Was there ever a proposal that was so utterly unjust as this? Then my honorable
friend said that the Judges of the High Court would have less experience. Surely the Judges
of the Federal High Court will have as much experience as the Judge we have sent to the
Privy Council? Why should we reflect on his qualifications, or on the qualifications of any
10 Judge who is sent to take part in the work of the Privy Council? I wish to tell honorable
members this-now, when we come to speak of the question of experience-that Lord
Watson, probably the strongest Judge on the Bench of the Judicial Committee, was a
Scotch Judge, who passed the whole of his earlier career at the Scotch Bar, and on the
Scotch Bench, and who learned and administered a system of [start page 2308] law totally
15 opposed to the system of English law. He was nevertheless put on the Privy Council Bench
to decide appeals from the colonies affecting and depending upon a law of which he could
have had no possible experience before, and yet so powerful is the education which every
one undergoes with responsibility, and the necessity of exercising responsibility, that he has
become a conspicuous success on that Privy Council Bench. So it will be with the Judges of
20 our High Court. Their strength, their knowledge, their judicial experience, will grow
with the opportunities that come to them. Uniformity, it is said, will not be preserved.
Well, the law, of course, is always proverbially uncertain. We are guided by the House of
Lords, not by the Privy Council. We are bound by the decisions of the House of Lords as
long as we are part of the empire. The High Court of Justice here-the Federal High
25 Court will be bound to give effect to English law as expounded in the highest court
available to English-speaking people, and the uniformity will be maintained just as
effectually without the intervention of the Privy Council upon a discretionary appeal,
such as is proposed, as if the right of appeal were retained in its fall force.
END QUOTE
30 .
QUOTE
Mr. REID.-On Australian questions; such questions are only Australian.
Dr. QUICK.-True; but I was not aware that there was any reason why we should be
35 afraid of submitting the interpretation of this instrument to the final Court of Appeal in this
empire.
Mr. REID.-We are not afraid, but we say that the Privy Council is an improper tribunal
with regard to such points.
Dr. QUICK.-Surely we cannot be afraid that this instrument will not receive a liberal and
40 judicious interpretation in the highest court of the empire. What reason have we for
believing that it will not be interpreted in the spirit usually shown by British jurists-men
educated in the same school and upon the same principles of common law as we are here?
Why should we be afraid of submitting the interpretation of this instrument to them?
Dr. COCKBURN.-Because they do not live under the same conditions, and do not
45 understand them.
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END QUOTE
5 .
QUOTE
Dr. COCKBURN (South Australia).-Under clause 46 the seat of a member of either
House of the Parliament of the Commonwealth becomes vacant if any work is done or
10 services rendered by him in Parliament for or on behalf of any person or corporation. The
Drafting Committee's amendment, however, will make the clause read-
Services rendered in the Parliament to any person or state.
I want to know whether the singular word "person" includes the plural, and if the word
would apply to corporations? If it does not apply to corporations, the omission of that word
15 is an alteration in substance which cannot have been intended.
Mr. HOLDER (South Australia).-I should like to ask another question. There is nothing
in the Bill empowering the Speaker or President to receive a salary for his work in either
office. Yet, it is to be presumed, as the offices are created under the Constitution, such
salary will be paid under the Constitution. Neither is there a reference to the position of the
20 Chairman of Committees. I should like to know whether sub-section (3) will prevent the
Chairman of Committees from receiving a salary?
Mr. BARTON (New South Wales).-No, there would be no prohibition in that respect.
The offices of Speaker and Chairman of Committees are not offices of profit under
the Crown. They are parliamentary offices, and Parliament has always retained a power
25 over its own Estimates to the extent that really the Speaker and President of the local
Chambers have always exercised a right to submit their own Estimates, and those
Estimates, as a rule, as far as I know in practice in my own colony, are altogether
untouched by the Government of the day. Now, these are political offices, but not offices of
profit under the Crown. I think that that is the principle that Parliament has always asserted
30 in England and elsewhere. As to the word "person," the British Interpretation Act of 1889,
which will be largely applied to the construction of this statute by the Imperial authorities,
provides that where the word "person" is used, unless the Act otherwise provides, the word
"corporation" shall be included.
Mr. HIGGINS (Victoria).-If a man agrees to get paid for services done in Parliament, or
35 for the Commonwealth, and if he does the work, and, having done the work, he resigns, is
there no penalty? Is there no punishment in such a case for a man who guarantees that he
will use his position in Parliament in order to make money, and, having made it, resigns!
Mr. BARTON (New South Wales).-No; and there is a reason for that. If I recollect
correctly there was some provision in the Bill in Adelaide in that respect, but that provision
40 was omitted in the sitting of the Convention at Sydney as a matter [start page 2449] of
policy. Mr. O'Connor suggests that it is quite probable that in such a case an action would
lie at common law. However that may be, the policy of inserting such a provision was
reversed in Sydney, and therefore the Drafting Committee could not frame any proposal to
that effect.
45 The amendments of the Drafting Committee in clauses 46 to 51 inclusive were agreed to.
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END QUOTE
.
The following also refers to the right of voting by a representative of a Territory and one must
keep in mind that the Senate is a State House and if Territories can vote then all the
5 Commonwealth needs to do is to increase the voting rights of territories and then can outvote the
States in any case. This kind of absurdity clearly never was as such intended by the Framers of
the Constitution.
.
10 QUOTE
Clause 115-The Parliament may make such laws as it thinks fit for the provisional
administration and government of any territory surrendered by any State to and accepted by
the Commonwealth, or any territory placed by the Queen under the authority of and
accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may
15 allow the representation of such territory in either House of the Parliament to the extent
and on the terms which it thinks fit.
Mr. WISE: I move:
That the following words be added at the end of the clause:
No federal territory shall be leased for a longer period than fifty years, or alienated
20 in fee simple, except upon payment of a perpetual rent, which shall be subject to
periodic appraisement, upon the unimproved value of the land so alienated at
intervals of not more than ten years.
Mr. DEAKIN: Is "territory" the best word to use there? Territory here is given a peculiar
significance in the American sense-a great area under a Government which is not a State.
25 Mr. WISE: "Lands," then, I shall make it:
No lands, the property of the Commonwealth.
I do not know what reception this amendment will meet with in this Convention, but I am
satisfied that there is no resolution that has been submitted to it which will touch the
interests of the people outside more nearly than this.
30 Mr. GLYNN: Hear, hear.
Mr. WISE: It is desirable, if we wish to commend this Constitution to the approbation of

the democratic multitude, whose votes it must receive, that we should indicate in the
clearest possible manner that those principles which they have most at heart are
conserved by this Constitution. No one need imagine that I am going now to enter upon
35 any discussion of the question of land values taxation. It would be out of place altogether in
an assembly of this kind to assume that there is any representative here who has not fully
considered that question from every point of view. All I desire is in a definite form to bring
up for acceptance or rejection by this Convention a proposal as to the future treatment of
the lands which may ultimately belong to the Commonwealth. And in the amendment I
40 have proposed I endeavor to avoid for all time to come-as we hope we are framing a
Constitution now that will last for many generations-all the evils which have attended
the reckless alienation of territory since the foundation of these colonies-
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Mr. GLYNN: Hear, hear.
Mr. WISE: And to secure for the Commonwealth the growing and permanent source of
revenue from that State-earned increment in the value of land which comes silently from
the mere accretion of population, and from the exercise of the powers of Government. With
5 these ends in view I have drawn an amendment which comprises two [start page 1013]
matters; the first limits the tenure of leasehold to a period of not more than fifty years,
and the second provides that if alienation is allowed at all, it shall only be allowed
upon such terms as will secure that a fair portion of the unearned increment of the
land shall go back to the people who make that value by popular exertion. And so I
10 propose my amendment. I think the Convention will admit I have faithfully fulfilled my
promise not to enter into a large and discursive discussion. I hope, therefore, that those
opposed to this will follow my example in this respect, and not enter into a discussion,
which in this assemblage, at all events, would be largely academic. If this Convention
rejects the amendment, I may say that those who support it will try and persuade the local
15 Parliaments to insist on its insertion in the Bill, and if I may prophesy-though I know it is
dangerous to prophesy, and in nothing more so than in politics-shall prophecy that if this
amendment is rejected now every Parliament in Australia will insist on its being adopted,
and that we shall have to pass it in the Convention next time.
Mr. FRASER: You do not know the Parliaments.
20 Mr. BARTON: I would only suggest with regard to my hon. friend's amendment that it-
Mr. FRASER: He does not mean it. He is only joking.
Mr. WISE: You will find it is no joke.
Mr. BARTON: I have only to say this. If after the establishment of the Commonwealth
the people are land nationalisers they will do what my hon. friend suggests. If they are not
25 land nationalisers we have no business to make them so against their will.
Sir EDWARD BRADDON: I think there is a necessity for amending line 6, It states that
the Commonwealth may allow the representation of such territory in either House of the
Parliament to the extent and on the terms which it thinks fit. I would ask why it should be
left to the Federal Parliament to decide? The representation in this instance is to be in
30 both Houses, not in one House or in the other. Why should we not preserve in this question
the ratio of representation which has been fixed already in regard to our representation
generally?
Mr. BARTON: We have passed that clause long ago.
Sir EDWARD BRADDON: I am discussing clause 115.

35 Mr. BARTON: My hon. friend is speaking on clause 114.
Sir EDWARD BRADDON: My hon. friend does not know his own Bill.
Mr. BARTON: I thought you were harking back.
Sir EDWARD BRADDON: No. I am harking forward. I would suggest to my hon.

friend that it is not intended that there shall be any departure from the principle that we
40 have bound ourselves to, and that the difficulty here may be got over:
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By striking out all words after "Parliament" in the twenty-second line and inserting
"in accordance with the ratio of representation provided in the Constitution."
I am not going to manifest that mistrust in the Federal Parliament which has been
shown here occasionally; still I think it is desirable that we should as far as possible
5 safeguard ourselves against the breach of that engagement which has been entered
into in a previous part of this Bill. I will move to test the matter the amendment which
I have suggested.
The CHAIRMAN: Will Mr. Wise withdraw his amendment to allow this to be put?
Mr. WISE: Yes.

10 Leave given.
Mr. MCMILLAN: I think this is a very important matter, because I look forward with
some hope that in future under federal administration a large portion of this continent will
have to be dealt with under peculiar conditions. I do not think that [start page 1014] in
regard to the administration of these territories, which are very peculiar in themselves, we
15 ought to bind the Federal Parliament. I would suggest to my hon. friend that the matter
might be dealt with in this way: instead of bringing in either Houses of Parliament allow of
the representation of such territory to the extent and on the terms it thinks fit, leaving it
entirely open as to the course to be adopted.
Mr. O'CONNOR: That is what the section provides.

20 Mr. MCMILLAN: So far as I can understand my hon. friend he wants to bring the
territories practically into line with the States, which, of course, would be a great mistake.
There would be many experiments in administration owing to the peculiar conditions of
these territories, and we ought not to tie the Federal Parliament under these circumstances.
Mr DEAKIN: I think my hon. friend Sir Edward Braddon somewhat mistakes the
25 position. If the United States plan is followed territorial delegates would simply be
entitled to enter the House of Representatives and speak there, but would not be
permitted to vote. They are only agents. The territories here would consist of parts of
Australia in which there was merely a nominal population. From them persons might
be privileged to enter the House of Representatives in order to state their wishes, but
30 these persons could not take any other part in the proceedings.
Mr. BARTON: They are provisionally governed by the Commonwealth.
Sir EDWARD BRADDON: Representation should carry with it the right to vote.
Mr. DEAKIN: Under territorial representation if it follows the plan of the United
States, as it probably would, territorial representatives would be entitled to speak in
35 the House of Representatives, but not to vote. I think Sir Edward Braddon will see that
his alarm is not well-grounded, and that whatever determination is come to in regard to the
representation of territories must be settled by both Houses. The Senate will have an equal
voice with the House of Representatives in determining what representation is to be given,
when it is to be given, and how.
40 Mr. BROWN: I hope that Sir Edward Braddon will not insist on this amendment. It
appears to me that we are again doing as we have been doing very frequently during the
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discussion of this Bill, namely, trying to put into the Constitution things which ought to be
dealt with hereafter by the Commonwealth. It is perfectly plain that as regards any
territory which may require to have representation in the Commonwealth, Some
special arrangement will have to be made such as that indicated by my hon. friend Mr.
5 Deakin. To put into this clause a condition that such territory can only be represented
under the terms and conditions to which the complete States are admitted will, I
apprehend, be contrary to what the Convention has in view.
Mr. BARTON: And prevent the Commonwealth from taking over any at all.
Mr. BROWN: In addition to that, it is showing a large amount of distrust of the wisdom
10 of Parliament. We shall all, through our representatives, have the opportunity of
influencing decisions in the future Parliament just as we have done here. Some hon.
members occasionally regard this Commonwealth Parliament as a sort of foreign and
hostile body which will have to be watched, and concerning which all sorts of precautions
will have to be taken to prevent it from doing mischief. Having faith in the wisdom and
15 capacity of the Federal Parliament, we should not load the Constitution with these
unnecessary details.
Mr. BARTON: I ask the hon. member not to insist upon his amendment, which refers to
territories and not to new States. It would be impossible for the Commonwealth ever to
consent to the admission of territories which might be sparsely populated, and which
20 would, [start page 1015] according to the hon. member's proposal, be entitled to six
members in the Senate. Territories or districts which are only in a primitive state of
development are intended to be dealt with by a clause of this sort. They are in a
transition state, and they are governed by the Commonwealth until such time as the
States have reached a condition which would entitle them to representation in the
25 Senate. Bryce says:
Besides these full members there are also eight territorial delegates, one from each of the
territories, regions in the West enjoying a species of self -government, but not yet formed
into States. These delegates sit and speak, but have no right to vote, being unrecognised by
the Constitution. They are, in fact, merely persons whom the House under a Statute admits
30 to its floor and permits to address it
This Constitution is on a little more liberal basis than that in this respect: the
Commonwealth in the case of the secession of a territory which is cumbersome, gives
power to allow the representation of it in either House of Parliament under the terms
which the Parliament thinks fit. Instead of the territories being governed in a way that
35 only entitles them to be represented as delegates there is power to give them a certain
degree of representation. It is quite as much as they can have the right to expect, and
this is a more liberal provision than is to be found in the American Constitution. I
trust we shall not have to divide on this.
Mr. DOUGLAS: Why should the words "either House of the Parliament" be there? What
40 is required is to strike out:
In either House of the Parliament to the extent and to insert:
And it shall be on such terms and conditions as the Parliament shall think fit.
Sir EDWARD BRADDON: I should not object to the clause so strenuously as I have
done if it were clearly shown that representation in this instance did not carry with it
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the voting power which we generally understand accompanies representation. A

representative is as well as being a speaking machine, a voting one, and if Mr. Barton
will say in the Bill that this representative or these representatives are not to have
votes, then my alarm will be dispelled. This is the fact as regards the representation of
5 colonies under the American Constitution, but we have nothing in the clause to show
that it is to be the fact here also.
Mr. Wise's amendment was then put
Mr. HIGGINS: My feeling is in sympathy with Mr. Wise's general intention, but I am
10 embarrassed with the proposal at this stage. There is no doubt our duty is to frame a
Constitution for Australasia, and in framing a Constitution we are giving the Federal
Parliament power to acquire territory for the purposes of the Federation. It must
acquire territory belonging to private persons or to the Crown, and all the resolution can
apply to is as to what belongs to the Crown. It must deal with the lands under the
15 Constitution, and I submit to my hon. friend, that his proposal is not constitution-making at
all. However advisable it is to have no alienation in fee simple of these federal lands, and
although we know there will be an effort to boom the land when the federal capital is fixed,
we are departing from the ambit of our instructions in the Federal Enabling Acts if we
adopt the proposal now. Our duty is to frame a Constitution, and for us to put in the
20 Constitution something as to what is to be done with the property under the Constitution, is
something which I cannot understand. I ask the hon. member to withdraw it. Rightly or
wrongly, a great proportion of the people look with apprehension upon these views, and we
do not want to frighten the people from coming into the Federation.
Mr. WISE: It will have the opposite effect.
25 Mr. HIGGINS: I feel as strongly as Mr. Wise as to the expediency of the policy
indicated in his resolution, but I want to get Federation, and I do not want to deter a large
portion of the people from [start page 1016] voting "Yes" if we get a working Constitution.
Mr. Wise can tell his friends that we shall try to induce the Federal Parliament to accept
this system. I think Mr. Barton has struck the nail on the head when he said it was not a
30 matter to be considered in framing a Constitution. In framing the Constitution power is
given to acquire Crown or private lands by the Federal Government, but at the same time,
what is to be done by the Commonwealth is not a matter of Constitution framing.
Mr. TRENWITH: I differ from my hon. friend on this question, as I think it is

desirable that we should, if we can, put a provision in the Constitution that the lands
35 of the Commonwealth shall always remain the lands of the Commonwealth. We have
bad ample evidence of the unwisdom of selling lands in fee simple in all of the States.
We have had several very remarkable instances in the colony of Victoria-quite
recently, where from time to time land was required for public purposes. All the land
has belonged to the people of the State, and when it is sought to be acquired for public
40 purposes, it is always found that the people have to pay very high prices for that which
should never have departed from them, and we are continually embarrassed with the
difficulty. The railways are notoriously non-paving from a book-keeping point of view, and
it is altogether because of the fact that in the early days we alienated a large amount of the
public lands, and when we required them for public purposes we had to pay private persons
45 inordinate prices. I feel I should not be doing right in discussing this question at the length
it deserves, but I feel bound to urge one or two reasons why it would be right to put it in
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this Constitution at any rate at this stage, even if it were struck out subsequently. Mr.
Higgins points out that in the Constitution Act we have there are provisions for the
sale, letting, or otherwise dealing with Crown lands, and therefore it is unwise to to
put in this Constitution that they should not be sold. Now clearly there is no departure
5 from the Constitution to which he refers. Supposing we only made a provision for letting
the lands we have only done the same thing in a different degree as has been done in the
Constitution to which he referred. It has been said that if the people cannot acquire the fee
simple of the land they will not develop it to the same degree as they would if they could
acquire it. We have been able in Victoria to furnish an object lesson in this connection. We
10 recently passed an Alienation Act to which we attached clauses providing for the perpetual
leasing of land subject to a re-valuation every ten years. We find that that land known as
the mallee country in Victoria is being taken up very largely indeed under that system.
affording to the agriculturist an opportunity of using the land for agricultural purposes, and
leaving to the State perpetually such unearned increment as may from time to time accrue.
15 We all know that unexpected developments take place and land is inordinately increased in
value, not through any effort of the person using it, but through some extraneous
circumstances over which he has no control, such as the discovery of a goldfield, or the
development in the locality of some form of production which was not thought to be likely
at the time it was alienated. The mallee land of Victoria was thought a few years ago to be
20 absolutely worthless, and the difficulty was not to get people to buy it, but to stop on it at
all, in order to destroy the rabbits and keep them from overrunning the adjoining lands. But
quite recently, through two inventions, the land has become amongst the most valuable, the
most easily worked, and the most remunerative in the colony, and if it had been alienated at
the price that could be got for it a little while ago it would have been giving away the land
25 to a few lucky people. If this clause is put in the Constitution now it will give us an
opportunity of ascertaining what is the feeling of [start page 1017] the Parliaments that will
have to deal with the Bill. It will give us an opportunity of learning the opinions of the
people through the press.
Mr. O'CONNOR: This is not a proper use to make of this Convention.
30 Mr. TRENWITH: It is a proper use.
Mr. O'CONNOR: To test the feeling on a fanciful doctrine.
Mr. TRENWITH: It is for us to learn between now and four months hence what is the
desire of the people, and by inserting it now we should have discussion on it in a way.
Mr. BARTON: Do you not think we would have discussion on it if we do not put it in.
35 Mr. TRENWITH: No. Because if we pass it it will be made a clause in this draft which
we are preparing with a view of inviting criticism. Our work just now is to deal as nearly as
possible with what we think is wise with the knowledge that it will receive serious and
extensive public and Parliamentary criticism in order that we might, in the light of that
criticism, do what seems most in accord with the public will. It was thought desirable in
40 previous constitutions to put provisions in for what was then the prevailing custom in
regard to the sale as well as the letting of public lands. But there has grown up, and is
growing up, a very emphatic and widespread feeling that a great injustice was done to the
people at the inception of the colony by disposing of their right to the public lands. We are
making a Constitution for lands to be dealt with by another body, and if that feeling is
45 as general as I, Mr. Wise, and others think it is, we have a right to put in the
Constitution a provision that will guard the public property in land from being
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dissipated as it has been in the past. I feel this subject is so interesting and so important
that it is very difficult indeed-it requires a great deal of self-abnegation-to refrain from
discussing it as I should like to discuss it. But it is not proper that I should; and, having in
view the shortness of the time, I will not do so. But I would urge hon. members to vote for
5 the clause Mr. Wise has proposed; and if, as they think, it will frighten a large number of
persons from coming into Federation, we can eliminate it when the second consideration of
this Constitution comes on; or if, as some others think, there is such a widespread feeling in
favor of it that this will popularise and even frighten away many that have that guidance
from public discussion in the press, upon the platform, and in Parliament.
10 Mr. WALKER: I hope that our hon. friend Mr. Wise will allow this to go to a division at
once.
Mr. WISE: I am quite agreeable.
Mr. WALKER: Or else withdraw it. Those who have been in Australia for many years
know that the fact of acquiring land on easy terms is one of the main reasons Australia has
15 such a much larger population now than it had forty years ago. At the present time we have
enormous areas in Australia practically uninhabited, and yet these lands have been offered
on remarkably easy terms. It is preposterous to make this Convention a debating society for
the discussion of this land question, after all the delays we have had.
Sir JOHN DOWNER: Hear, hear.
20 Mr. WALKER: If Victoria wants more land, why not let her annex the Northern
Territory from South Australia? I believe she could get it for the asking.
Mr. TRENWITH: There is only one reason, and that is that South Australia will not
consent.
Mr. WALKER: Perhaps the best thing is to give away the land so as to get the people to
25 reside on it and occupy it, and thereby contribute to the revenue through the Customs-
house. I hope that without further discussion this proposal of the hon. member will be
negatived.
Dr. COCKBURN: I do not think that this is the lace for a dissertation on the [start page
1018] various forms of land tenure. Still this is a special case, and not a general one. We are
30 dealing with practically the site of the federal capital.
Mr. TRENWITH: That, and possibly more.
Dr. COCKBURN: Therefore the circumstances attending the consideration of this clause
are altogether exceptionable. Wherever that capital is fixed there is bound to be a large
influx of population, and a rise in land values to a fabulous extent.
35 Mr. WISE: Hear, hear.
Dr. COCKBURN: And we should consider how we can make the best practical
arrangement, so that Federation may as far as possible pay its way.
Mr. WISE: If you leave it to the Federal Parliament the people will rush in and get the
land beforehand.
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Dr. COCKBURN: If a scheme can be proposed by which it is shown that the Federal
Parliament will retain to itself as the landlord an enormous rise of prices in land, then it will
be able to dispense with revenues from other directions. This is an aspect which might
guide the people in considering what the cost of Federation will be.
5 Mr. HIGGINS: The people cannot rush and get Crown lands when it is a federal capital.
Dr. COCKBURN: We have to consider this matter simply as an ordinary landlord. The
federal authority will be the landlord of the site of the federal capital, and it is for us to
consider what is the best possible use to which the landlord can put the land. This does not
necessarily touch the question of land nationalisation or of methods of land tenure.
10 Therefore I feel compelled to vote with Mr. Wise, and in doing that I do not admit that I
agree with the hon. member in all his views. I vote for the amendment because it
establishes the general methods of a sound principle, which is applicable in the present
instance, and will go a long way towards settling the question I have just alluded to.
Mr. HOWE: This land question is really the basis of all public good. So fax as the land
15 laws of each individual State are concerned, I think they should be left entirely to the
Parliament of that State. Ever since I took an interest, directly, in the politics of the State to
which I belong I have advocated the leasing of our Crown lands, and, I am happy to say,
Mr. Glynn, myself, and others, working shoulder to shoulder, have introduced into this
country a system of leasing for a term, of leasing in perpetuity, for a fixed rent, or of giving
20 a leasehold with right of purchase, which, instead of giving the principal part of the money
to the Government, reserves it to the lessees, so that they may improve their properties,
which is as good to them as if they held it in fee. The State which is to be created under this
Bill is to have a Parliament which will outnumber any of the Parliaments of the other
colonies, and which is to be elected by the people of all the colonies. What right has one
25 State to say to the Parliament representing the whole people that you shall do so and so
with your land? The Parliament should be allowed to deal with the land in which the
federated government will sit as they like, just as we claim that we should be allowed to
deal with the land in our own States. I should resent the Federal Government having the
power vested in them of directing any individual State, however small, how it should
30 dispose of its Crown land. We should never give them that right, and at the same time
we should not attempt to dictate to the Federal Parliament how they should dispose of
their land. You say, "Trust the people"; Mr. Deakin is always telling us to do that. I say, let
the Federal Parliament deal with their lands at their sweet will and pleasure. They are
appointed by the people, and will have to account to the whole of the people for the way in
35 which they dispose of their lands.
[start page 1019]
Sir EDWARD BRADDON: This discussion is purely academical, and it was intended to
be so by Mr. Wise. He is a believer in one capital for the Commonwealth. There is but one
possible capital.
40 Mr. TRENWITH: There is only one Hobart.
Sir EDWARD BRADDON: And inasmuch as it is not at all likely that that capital will
have a very considerable quantity of land to dispose of-
Mr. BARTON: Not even if you have the whole island.
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Sir EDWARD BRADDON: If we had the whole island we should make it difficult for
some impecunious, if largely populated, States to acquire property there. But as a matter of
fact there will not be a very large amount of unalienated land to deal with in the capital,
and that amount may very well be dealt with in accordance with the ordinary laws
5 prevailing in the Commonwealth from end to end.
Question-That the words proposed to be added be so added-put. The Committee divided.
Ayes, 13; Noes, 21. Majority, 8.

END QUOTE
.
QUOTE
Mr. HIGGINS (Victoria).-I think that the committee should now be prepared to come to
a determination on this subject. After the long discussion the other day, and after the
masterly, and exhaustive explanation given to us to-day of the position of New South
15 Wales by Mr. Carruthers, I see no reason why we should not come to a decision at once. In
the first place, no one desires that sub-section (31) should remain in the Bill, and it might
be struck out. New South Wales does not want it, and South Australia does not want it,
because it limits the powers which by implication are contained in the first sub-section. We
might, therefore, start by making a clean sweep of sub-section (31). The next step I would
20 suggest would be to have two divisions if need be. One would be on the question of
whether the whole subject of inter-state rivers should be left to the Federal Parliament or
not. I would suggest the insertion in clause 52, giving the Federal Parliament power to
legislate on certain matters, of the following words, which, I think, would effectuate the
purpose of those who hold with me:-
25 The adjustment of riparian rights as between states as to all waters which in the course of
their flow or after joining other waters touch more than one state.
If that were adopted the effect of it would be not to decide whether irrigation is to be
paramount to navigation, or navigation to irrigation, or whether conservation and storage,
are to be paramount to both; but [start page 401] simply to treat the question of the River
30 Murray and its tributaries-and I take these as being, par excellence, the federal rivers-as a
federal matter.
Mr. REID.-Your language is wide enough to include the Queensland tributaries.
Mr. HIGGINS.-Quite so, and we hope that Queensland will be in the Federation
eventually. But this amendment will only give the Federal Parliament power to deal with
35 the colonies in the Federation.
Mr. REID.-To what extent?
Mr. HIGGINS.-It will give absolute power to adjust riparian rights.
Mr. LYNE.-You take the power away from the states altogether.
Mr. HIGGINS.-No. As I understand the question of riparian rights as between the
40 owners on the bank of a stream up high and down below, an owner up high has a right to
use the waters in any way he thinks fit without let or hindrance, provided he does not
infringe upon the equal rights of the owner down below.
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Mr. REID.-That is not the law as between states.
Mr. HIGGINS.-No. The difficulty which the New South Wales representatives have,
and which have been so ably stated by Mr. Carruthers, with the responsibility and
knowledge which he possesses as Minister of Lands, is that they feel that, owing to the
5 peculiar conditions of the Australian climate, they must make some use of the waters of
these rivers. My amendment would not prohibit them from making use of any of the waters
of those rivers provided they did not infringe upon the equal rights of South Australia and
the other colonies by diminishing the flow.
Mr. REID.-You know that South Australia, as a matter of law, has no possible
10 jurisdiction over the waters of the Darling.
Mr. HIGGINS.-That is so.
Mr. REID.-And although they have no jurisdiction, and, therefore, no legal rights, you
ask us to give up the legal rights we possess, and to jeopardize our vital interests of water
conservation.
15 Mr. HIGGINS.-I think as between friendly states you ought to be equally just in your
dealings with those who occupy lands high up the river and those who occupy lands below.
It is quite true that South Australia has not got an army with which she could go and
besiege the Parliament House of Sydney to compel the New South Wales Parliament to do
a certain thing.
20 Mr. REID.-What grievance has she got?
Mr. HIGGINS.-Supposing that New South Wales were the owner in fee simple of all the
land along the Darling in New South Wales, and that South Australia were the owner in fee
simple of all the land along the Murray down below where it runs into the Southern Ocean,
there is not the slightest doubt that South Australia would be able to get an injunction to
25 prevent New South Wales from using the waters of the Darling so as to diminish
substantially the normal flow.
Mr. REID.-Where would such an injunction be got?
Mr. HIGGINS.-I am assuming that they are owners in fee simple. Of course, I do not
speak with the responsibility Mr. Carruthers feels as Minister of Lands having to administer
30 a most complex law. I speak as a private member of the Convention, whose only desire is
to get a speedy determination of this dispute. I ask how can South Australia submit to a
condition of things such as was so frankly and so fairy stated by the honorable member
(Mr. McMillan), who asserted that New South Wales is entitled to take every drop of the
water of the Darling for its own purposes, without making any arrangement with South
35 Australia?
Mr. MCMILLAN.-I simply said that the right must be somewhere.
Mr. HIGGINS.-The honorable member was, as usual, perfectly logical and correct. If
the New South Wales claim amounts to anything, it amounts to what the honorable member
stated.
40 [start page 402]
Mr. BARTON.-Is not that the law?

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Mr. HIGGINS.-If you were private owners it would not be the law, but inasmuch as
South Australia has no power to enforce its claim, you must come to an agreement.
Mr. BARTON.-Is it not the law now?
Mr. HIGGINS.-All that South Australia asks is to be treated as the owner above the
5 stream should treat the owner below. However, I have explained my position, and, as one
who has no interest in this matter, I do not feel justified in detaining honorable members
longer. I shall move, however, if sub-section (31) be struck out, and there be need for the
amendment, that these words be put in its place:-
The adjustment of riparian rights as between states as to all waters which in the course of
10 their flow or after joining other waters touch more than one state.
Assuming that the committee are unwilling to go to the extreme course-I do not call it
extreme-of leaving this matter absolutely to the Federal Parliament, I think that a
compromise such as that provided for by the words of my other amendment might be
adopted. The effect of my other amendment is to assert for South Australia the undoubted
15 right she would have at law, if there were a law applicable to the circumstances. If you
secure the navigability of the river to South Australia, she will eventually be able to use the
water to which she is entitled as she thinks fit. The honorable member (Mr. Carruthers) has
shown that New South Wales is interested in the way in which South Australia uses these
waters, and that by the widening and deepening of the mouth of the Murray the course of
20 the river may be very greatly affected. Why then should not New South Wales leave to the
Federal Parliament the control of the mouth of the Murray, so as to insure that the interests
of New South Wales shall not be injured? However, we all understand how our minds are
made up now, and therefore I would suggest that we should drop out subsection (31), and
adopt my proposed amendment in its place.
25 Sir JOSEPH ABBOTT (New South Wales).-I think that the representatives of New
South Wales will agree with me that the proposal of the honorable member (Mr. Higgins) is
worse than any suggestion which has come from South Australia. South Australia, I
believe, does not care a fig about the navigability of the River Darling, except so far as the
keeping open of the river for the purposes of trade is concerned. So far as I can ascertain,
30 the South Australian Government, up to the present time, have done nothing to utilize the
surplus water of the Murray for the purpose of rendering its lands more valuable than they
were previously. I have heard something said about village settlements, which probably
could be sustained with a few gallons of water per week or per month; but, with the
exception of Renmark, I know of no other place in South Australia where an effort has been
35 made to render land more valuable by the use of water in irrigating it.
Mr. HOLDER.-The South Australian irrigation settlements have large areas under
irrigation.
Sir JOSEPH ABBOTT.-The representatives of South Australia say-"We must preserve

our rights as against New South Wales." They are to be able to use these waters as they
40 think proper; but we are not to use them except for the purpose of navigation.
Mr. GORDON.-That is not contended.
Sir JOSEPH ABBOTT.-That is the effect of every proposal which I have heard. In
Adelaide I did not object to the Darling being handed over for the purposes of navigation, if
it was insured that there would be no interference with the tributaries of that river. It was
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proposed then, by the representatives of South Australia, that the Darling should be handed
over to the Federal Parliament. I have not the slightest objection to that [start page 403]
being done if we are to be allowed to utilize the streams which flow into the Darling, or
which are created by the Darling in flood time, for our own purposes. But if we are to be
5 told that we are not to conserve these waters, by whose use millions of acres of land
may be rendered valuable, but must allow them to flow down into the river, and if
that be an essential condition of federation, I, for one, will oppose federation as
strongly as it is in my power to do so. If we are to give up these rights and get nothing for
them and I do not see how anything could compensate for the loss of the right to conserve
10 these waters at the very source-I shall oppose federation. Let me take as an illustration of
my position, the case of the Lachlan, which begins to flow near Goulburn, within 120 miles
of Sydney, and runs to Balranald, losing itself in ordinary seasons in a swamp known as the
Reeds, and ultimately emptying into the Murrumbidgee. Are we to be told that the people
in Goulburn, 400 or 500 miles away, are not to interfere with any of the streams in their
15 district, because by doing so they would be interfering with the navigability of the rivers
lower down? I say that that is a monstrous proposition. I admit with regard to the whole of
the Darling country that New South Wales has done very little to produce settlement there.
In the early days the whole of the country was settled by South Australians and Victorians,
and very little of the capital which went there came from New South Wales. The natural
20 flow of trade from the district has always been to South Australia. But if we in New South
Wales chose to act in that selfish spirit with which we are charged, how easy it would be
for us to interfere with the navigability of the river. I have represented in the New South
Wales Parliament, for ten or twelve years past, an electorate through which the Darling
flows, and during that time I have never lost an opportunity of impressing upon the
25 Government the necessity of rendering the river navigable. For what purposes? For the
purposes of trade. I think I am before both free traders and protectionists, because I have
always urged that trade should be allowed to flow where it is most profitable to the
producer to send it. I have gone so far as to urge the construction of a line of railway from
Hay to Deniliquin, and I have urged the opening up of the Darling, although I knew fall
30 well that none of the trade of the district would go to Sydney, but that it would go to South
Australia. I have always recognised that if our producers can benefit, no matter to how
small an extent, by sending their produce to a neighbouring colony, it is to our interest to
enable them to do so. If we wanted to be selfish, all we should have to do would be to wait
for one flood to come down, and there would be no navigation afterwards. Honorable
35 members can hardly conceive what the Darling is. I have seen it, even when steamers have
been trying to get up and down, a mere gutter, not broader than this chamber and at other
times I have known it to be absolutely dry. I have seen boats loaded with goods for Bourke
stuck for twelve months at Wentworth, and for nearly eighteen months at Wilcannia. That
was before we had a railway to Bourke. If we liked to be selfish all we need do is to say-
40 "We will not keep this highway open." New South Wales has never dealt as generously
with the Darling as she should have done. In the olden days we used to pay £50 a mile for
the maintenance and the keeping open of our main roads; but since 1864 or 1865, when
Captain Cadell began the snagging of the Darling, we have only spent about £60,000 upon
the river, with the exception, of course, of what has recently been spent on the construction
45 of a weir at Bourke. That is through the whole course of 1,250 miles. Well, if we had spent
on the Darling even the amount that was granted for the maintenance of a first-class road,
instead of having spent £60,000 on that river from 1864 or 1866 to the present, we would
have spent over [start page 404] two millions of money on the Darling. I have never been
able to impress my views on this subject upon those in authority in Sydney, but I say that
50 we pay too dearly for the trade of our remote districts, and that it will be very much better
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for us to let that trade drift away to its natural outlet, if by doing so we can benefit our own
settlers. If we can enable those people, by sending their produce to other colonies rather
than forcing them to send it to Sydney, to get more money for their produce, that will be a
benefit to New South Wales which New South Wales ought to be satisfied with. But when
5 we are charged with selfishness about this Darling River, when we are told that we are
greedy about it, and it is shown by Mr. Carruthers that we have never taken anything like
the water that has been taken out of our rivers for the purposes of an irrigation scheme,
which, as far as Victoria is concerned, has been an absolute failure-
Mr. DEAKIN.-You are quite under a misapprehension them. First of all, much of the
10 water flows back again, and there is little loss on account of any diversions we are making.
Sir JOSEPH ABBOTT.-That is something uncommon.
Mr. DEAKIN.-It is a fact, nevertheless. And our irrigation scheme is not a failure.
Sir JOSEPH ABBOTT.-I am very glad to hear that your irrigation scheme is not a
failure. Most people in New South Wales have pointed to it as an absolute failure, and as
15 successful only in places where the rainfall is sufficient without irrigation.
Mr. DEAKIN.-Thousands of people have been maintained on our lands during the last
few years who would have been ruined but for irrigation.
Sir JOSEPH ABBOTT.-I am very glad to hear it. Your scheme of irrigation has been
held up in New South Wales as an object-lesson against costly irrigation works. Now, as I
20 said before, I am not concerned about the navigation of the river. I would willingly be one
of those to keep up that river as a highway, not for the convenience of the people of South
Australia, but for the benefit of those of our own producers the natural outlet for whose
produce is South Australia. But when we are told that we are not to interfere with our rivers
and tributaries in New England, and with our streams 120 miles above Sydney, and that the
25 whole colony is to be condemned with regard to these waters, which it has never attempted
to utilize, whatever the result may be, I would never be a party to any such concession as is
now demanded. I will be delighted if any scheme be proposed by which this matter can be
settled. I think that possibly South Australia has been treated discourteously with regard to
her proposals for utilizing the water of the river, and that at times South Australia has been
30 treated contemptuously in reference to the correspondence on the subject and therefore I do
not wonder that they are irritated.
Mr. LYNE.-That is not our fault.
Sir JOSEPH ABBOTT.-I know that it is not our fault; but I also know that South
Australia has been so treated. I have heard it said that it would have been very much better
35 for our own colony if the district of the Darling River had been left to the blackfellow
instead of being opened up to settlement. I do not agree with that view, because we get
enormous sums out of the trade of that district as the entries of the Custom house will
show. I think that we shall be sacrificing the interests of New South Wales too much if the
navigability of the rivers is to be maintained at the expense of every stream throughout the
40 colony.
Mr. HOWE.-We do not ask for that; we never asked for that.
Sir JOSEPH ABBOTT.-But the control of the navigability of the Darling River carries
with it the control of every stream that flows into the Darling. What is the good of the
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South Australian representatives saving-"We never asked [start page 405] for that," if the
rivers are to be kept navigable down to Adelaide under the authority of the Federal
Parliament? To say to New South Wales-"You have no right to make thew reservoirs or
weirs because you are interfering with the navigability of the Darling and Murray," is to
5 make a claim which New South Wales cannot concede. The term is too, broad and
comprehensive for us to accept. But if the representatives of South Australia can come to
any middle course which they can show us to be just and fair, I am sure many of us will be
willing to agree to it. If they will clearly show me, for one, that they do not propose to
interfere with the feeders of the Darling River to any extent, and to take the control of those
10 feeders from the state, they will find me, at all events, voting with them for the maintenance
of the navigability of the Darling.
END QUOTE
.
15 QUOTE
Mr. REID.-I am coming to that point presently. But the navigability of a stream which is
not navigable except for irregular periods is a vague expression. The control and duty of
preserving the navigability of a stream in such a case becomes a very serious one, and the
old difficulty, which Mr. Isaacs has made an honest endeavour to get rid of, remains.
20 Seeing that difficulty, Mr. Isaacs has added to his amendment this provision:-
But so that no state shall be prevented from using any of the waters of such rivers for the
purposes of conservation and irrigation to such extent as, in the opinion of the Inter-State
Commission-
And "Inter-State Commission" introduces an element of uncertainty at once as to whether

25 such a commission will exist.
Mr. TRENWITH.-Substitute Federal Parliament.
Mr. REID.-I think that would be better. We will regard that as an open question. Mr.
Isaacs' amendment goes on to state-
as, in the opinion of the Inter-State Commission, is not unjust or unreasonable, having
30 regard-
Having regard to what?
the needs and requirements of any other state for such purposes.
There the fairness of Mr. Isaacs' proposal unintentionally breaks down, because the needs
and requirements of New South Wales are boundless. It is not the just rights, the fair rights,
35 the riparian rights; it is "the needs and requirements of any other state." Even if I were in
the position of being a representative of South Australia, I should consider the rights of my
colony were put in a very vague position by that proposal.
Mr. ISAACS.-That is controlled by the words "not unjust or unreasonable."

Mr. REID.-The honorable member's proposal says-"having regard to the needs and
40 requirements," not, as I would suggest, "having regard to the riparian rights possessed by
other states."
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Mr. ISAACS.-That would mean nothing at all.
Mr. REID.-That is exactly the point. I am so glad I have got my friend to admit that. The
latter part of the honorable member's proposal is a most ingenious cloud of words, intended
to deprive people in New South Wales of the use of water for irrigation and conservation
5 on the only basis they possess it at present-their just rights-and to make their just rights
subsidiary, not to the just needs and rights of any other state, but "to the needs and
requirements of any other state for such purposes."
Mr. KINGSTON.-Would the insertion of the word "just" meet the difficulty?
Mr. REID.-No, it would not.

10 Mr. HIGGINS.-That is the best test you could have.
Mr. REID.-The difficulty would be met if you put in the words "the just rights," or "the
riparian rights," of any other state for such purposes.
Mr. WISE.-Or "conserving the just rights of New South Wales."

Mr. REID.-I do not mind which. With great respect, I was trying to get from Mr. Isaacs
15 what he is really driving at, and with his customary candor, he has at once informed me that
everybody dealing with a state which has absolute right, and possession too, is asking that
state to subordinate its water conservation, or irrigation to the just rights or just means and
requirements of another state, which has no bearing at all on the Murrumbidgee and the
Darling. I admit that they have on the Murray.
20 Mr. ISAACS.-The Murrumbidgee and the Lachlan are not included in this.
[start page 444]
Mr. REID.-If the honorable member will exclude the Darling and the Murrumbidgee
from this proposal, there is not the slightest difficulty, because our friends from South
Australia have rights in the Murray. We are the first to admit that they have the fullest
25 riparian rights in connexion with the Murray. We admit that. Let it be understood, once
for all, that New South Wales engages in no controversy on that point-that we absolutely
admit the rights of South Australia, so far as the River Murray is concerned. And, more
than that, we are willing to agree to any proposal which comes from my friend Mr. Isaacs,
or from any other representative in this Convention, to make the just rights of South
30 Australia in the River Murray as clear and indefeasible as possible. Therefore, let us at once
narrow down the discussion to the crucial point-the Darling and the Murrumbidgee. We, as
to those rivers, take up the ground that the law gives us.
Sir GEORGE TURNER.-Is the Murrumbidgee included? Is it not the Darling that is in
question?
35 Mr. WISE.-The Murrumbidgee is more navigable than the Darling.
Mr. REID.-We rest our case as to the Darling and the Murrumbidgee on the simple
ground which the law gives us, and therefore we thank no one for it.
Mr. HIGGINS.-No, but because there is no law. That is what you rest on.
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Mr. REID.-Surely the honorable member will admit that a state has a right to its own
territory.
Mr. HIGGINS.-Yes.
Mr. REID.-Very well; the Darling and the Murrumbidgee are part of the territory of New
5 South Wales.
Mr. HIGGINS.-There is no law which gives you the flowing water of any of those
rivers.
Mr. WISE.-Absolutely.
Mr. REID.-There is only the law of right and, possession.

10 Mr. WISE.-There is more than that.
Mr. BARTON.-Where is the law that diminishes our right?
Mr. REID.-I should like Mr. Higgins to recollect that we are just now not in some
dreamy court of equity, where we prose about rights that are never found anywhere except
by equity authorities; we are dealing with solid legal rights, absolute rights, state rights,
15 recognised by every authority in the world.
Mr. HIGGINS.-That begs the whole question.
Mr. REID.-Well, if the honorable member can quote a single authority which shows the
contrary, I will listen to him.
Mr. HIGGINS.-I thought that you scorned authorities.
20 Mr. REID.-I did not say I scorned authorities; I scorn the interjections of the honorable
member, that is all.
Mr. HIGGINS.-Because there is no law between South Australia and New South Wales,
you claim to grab all the water.
Mr. REID.-No, because there is a law which gives us an absolute right to the
25 Murrumbidgee and the Darling. In the interests of the people to whom we have sold the
land in fee simple, if for no other purpose, we must vindicate our right to the water of those
rivers. One of the aspects of this matter is entirely lost sight of. New South Wales has sold
enormous quantities of land, based on the rights which the people possess in this water
under the New South Wales law and Government. Millions of money have been received
30 by the New South Wales Government for land sold within the water-shed of the
Murrumbidgee, and the owners of that land have all the right of that Government in those
waters as defined at present under the law. It is not a light question for us to nullify the
things we have sold-frontages to the rivers. Supposing we were willing to hand over those
rivers tomorrow to the Federal Parliament as far as the power of irrigation and water
35 conservation went, we would change the position of our land-owners in many parts of New
South Wales very seriously. We [start page 445] are bound to respect their rights as well as
our own State rights in this matter. But what I wish honorable members to make up their
minds about is this: I can quite understand, when they have a reasonable chance of
appropriating something that does not belong to them, some people would try to get it, but
40 when the person from whom it is to be got is not asleep, and knows his rights, it must be
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remembered that the chance, of getting it is very slight; so any attempt on the part of this
Convention, or any other body under Heaven, to get New South Wales to give up her
absolute ownership in the River Darling and the River Murrumbidgee must fail. That being
so, I am prepared to consent to all the incidents which federal powers will bring. I admit
5 that on those general words, as put so ably and forcibly by the leader of the Convention,
about navigation and shipping, and the regulation of commerce among the states, we may
have given up powers to the Federal Parliament far beyond those which we may wish to
give up, but we are giving them up, on equal terms; we are giving them up for legitimate,
for vital, for necessary federal purposes. We only give them up as every one else gives up
10 something; but this attempt to single out, in this Convention, the state rights of New South
Wales for special adjudication must fail, because the tribunal is not complete. Now, I
certainly do not go all the way with Mr Barton in his view, which of course, he only bases
on these decisions because it happens that no decision touches the immediate point which
we are on, but I think the solution of such a question on the general words of sub-section
15 (1) would go necessarily to the highest tribunal of the empire, where all our local interests
or feelings, whatever they my be would not have any voice in the decision. The matter
would be decided, simply on a dry question of law, by a tribunal thousands of miles away
from the conflicting interests. To-day, I am perfectly satisfied, in the interests of federation,
to give up to the federal power the right to go along the Murrumbidgee and the Darling-to
20 do what? Not to take possession of them; but, as the policeman goes along the street, in
order to see that in our management of our own property we act according to law; in order
to see, for instance, that in the management of those rivers we do not so manage them as to
place the enterprise of South Australia or Victoria upon a different footing from that of our
own enterprise. With all respect to the views which way be held, my views of these general
25 words in sub-section (1) just amount to this-that those words do not give the physical
control of the waters of the rivers concerned, that they simply give the, power to look on,
and if anything is done upon those rivers derogating from freedom and equality of
commerce, the right to come forward and say that that thing shall not be done.
Mr. ISAACS.-That, very possibly, will be the decision of the court.
30 Mr. REID.-Well, I do not wish to gain any vote on this question by disguising my own
views on the matter. My own opinion is that those general words would only have that
effect.
Mr. KINGSTON.-Which effect?

Mr. REID.-The effect of giving the Federal Parliament, if it chose, to legislate on the
35 subject, power to prevent our use of those rivers of New South Wales in the interests of
New South Wales traders, as opposed to the interests of all other Australian traders. In
other words, that they would secure equality of commerce on those rivers. For that federal
purpose, I heartily hand over every pint of the waters of the Murrumbidgee and the Darling
to the Federation, to see that all the colonists of all the Australias, and indeed the citizens of
40 the world at large, shall be absolutely equal and free upon those waters. That is where I
propose to stop.
Mr. KINGSTON.-But not to give them any power to maintain the navigability of those
rivers?
[start page 446]
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Mr. REID.-The honorable member must see that in the case of rivers which are not
always navigable
Mr. KINGSTON.-I only wish to find out what you want.
Mr. REID.-That is the whole trouble. Here we have the River Darling, which runs for
5 1,300 miles, and then becomes, not dry exactly, but certainly unnavigable. If we were to
give to any tribunal on earth the power of maintaining the navigability of the River Darling
we would absolutely put every irrigation scheme along the banks of that river in such a
position that it would be worthless-
Mr. HIGGINS.-How do you show that?

10 Mr. REID.-I find that my honorable friend's interjections do not generally tend to
enlighten what I am saying, so I disregard them.
Mr. HIGGINS.-May I ask the right honorable gentleman this question?

END QUOTE
And
15 QUOTE
Mr. SOLOMON.-The honorable member's amendment says that the rights of the
riparian states, which are not interpreted, shall be preserved, and that the navigability of the
Murray and its tributaries shall be preserved. The last two lines of his innocent amendment
adds-
20 But subject to the state powers over the waters thereof for local conservation and use.
Those latter words seem to me to put the whole thing back to the position at which it
started. What are state powers? Have we all come here as representatives of the various
colonies to adhere strictly not only to the letter of the law as to assumed or imaginary
rights, but to stick to those state powers that we think have been given to us by our original
25 charter? Or have we come here with some idea of federation? Is there any sentiment of
federation whatever in the representatives of New South Wales in reference to this.
question? We have [start page 473] heard from them over and over again the idea of
trusting to some extent the Federal Parliament, but here, in this particular case, we have
heard all through, from the commencement to the finish of this debate, but one thing from
30 New South Wales-that they will not budge a single inch; and not only do they suggest that
they will not agree to a fair and reasonable compromise such as is proposed by the
Attorney-General of Victoria, but also that subsection (31) of clause 52 as it now stands
should be eliminated from the Bill, because subsection (1) of the same clause covers the
whole ground.
35 Mr. BARTON.-It covers a lot more.
Mr. SOLOMON.-I am really surprised at the leader of the Convention and other legal
members, and, with some temerity, I venture to question their genuineness in the
interpretation they are giving to the Convention of the meaning of subsection (1). It seems
to me exceedingly strange that, after fighting about this sub-section (31), which, at least,
40 preserves the navigation of the Murray from where the river first bounds Victoria and New
South Wales, we should be told it is all covered by sub-section (1). But if subsection (1)
means all that these learned gentlemen of the law have told us, why is it that we have heard
so little about it until the last moment, when they are cornered?
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Mr. BARTON.-That is not the fact. I have all along said that the proper course was to
abolish this sub-section, and stick to sub-section (1).
Mr. SOLOMON.-Will the leader of the Convention or the Premier of New South Wales
say that sub-section (1) means as much, or anything like as much, as sub-section (31)?
5 Mr. BARTON.-It means more, because it gives you everything that sub-section (31)
gives you, except the use of the waters, and it secures you a great deal more in the way of
navigation, because it takes the navigatory power over the whole of the Commonwealth.
Mr. SOLOMON.-A very wide meaning may be given to sub section (1), but almost all
the legal gentlemen of the Convention-perhaps I was wrong in saying all-have argued right
10 through that subsection (1), which in very broad language gives power to the Federal
Parliament for the regulation of trade and commerce with other countries and among the
other states, covers the ground in reference to rivers. Very few of those honorable members
have taken that ground until the last few days. It has been their refuge after every other
argument has failed. Take this particular sub-section, which may be interpreted in the future
15 by the Federal Judiciary, which, we hope, will have to interpret the Constitution we are
now framing, as covering everything and giving full rights between the states, in such a
way as to equitably deal with all the states in regard to their commerce and the navigation
of their rivers-there is hardly a member of the Convention who will not admit that there is a
very strong element of doubt as to whether sub-section (1) will ever be interpreted by the
20 Federal Judiciary in such a way as to conserve the interests of South Australia. There are
some honorable members, I am sorry to say, who are willing to accept this interpretation,
who are willing to give away the little bit of consideration that the representatives of South
Australia have fought for right through-that consideration in sub-section (31) which gives
to the federal authority, without any doubt, without any fear of misconstruction, the control
25 and regulation of the navigation of the River Murray, and the use of the waters thereof from
where it first forms the boundary between Victoria and New South Wales to the sea. They
would give away that one right-that one little bit of substance-for a mere shadow, which
has been presented to them by some eloquent, earnest, and undoubtedly clever legal
gentlemen who occupy seats in this Convention. Whether the amendment of Mr. Isaacs will
30 or will [start page 474] not be accepted I do not know. I shall certainly give my vote for his
amendment-with some slight alterations perhaps-but I do earnestly appeal, not only to
honorable members representing South Australia, but also to other honorable members, not
to let slip sub-section (31) until we are absolutely assured that we have something equally
as definite, equally as clear in its interpretation, to place before the people who sent us here.
35 If the representatives of South Australia were to go back to that colony with this particular
sub-section eliminated, especially after this Bill has been before the Parliament of that
colony, without any suggestion that that sub-section covers the whole ground, and to say
then to the people-"We have given away sub-section (31), which certainly gave you-
The control and regulation of the navigation of the River Murray, and the use of the
40 waters thereof from where it first forms the boundary between Victoria and New South
Wales to the sea;
and we have accepted in its place subsection (1), which gives an indefinite and a very
questionable control of the commerce, and we take that as a full interpretation," I fear very
much that South Australians would hesitate before they accepted a Constitution so framed.
45 The honorable member (Mr. Carruthers) has told us, in a style peculiarly his own, that it
would be better for New South Wales to buy out the whole of the trade of South Australia
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than to give way one inch in reference to the navigation of the waters of the rivers. Of
course we know that New South Wales could buy out the whole of the trade of South
Australia. Probably she could purchase South Australia in fee simple, and then Victoria,
and the balance of her unused funds this wealthy colony could invest in consols, and reduce
5 the taxation on her people. All this might be done by New South Wales. We do not want
them to purchase the trade of South Australia, we do not want them to give anything but
what is just and federal and right; and the representatives of South Australia have not asked
for anything but what is just and fair, and have shown their idea of justice and their federal
spirit by proposing from start to finish that the whole of this question as to the rights of the
10 colony having the river passing through its territory lower down than the Darling should be
distinctly and clearly placed under the control of the Federal Parliament. We might very
well contrast this attitude of South Australia and her representatives, in regard to a question
of this kind, with the attitude of the representatives of New South Wales all through in this
particular debate. It has been one continuous cry-"We have the rivers, they pass through our
15 territory; we hold them, and we will stick to them." It has not been a question of whether
this particular sub-section which is submitted or that subsection will suit New South Wales.
It has been a question with the representatives of New South Wales that they have their
claws on the rivers, and intend to stick to them as far as they possibly can. But in this one
important point-and undoubtedly it is a very important point to South Australia-New South
20 Wales will not consent even to, grant the small concession demanded as to the keeping
open of the navigation of the rivers to South Australia. Now, what are the arguments used
by the Minister of Lands for New South Wales, in reference to this particular question of
irrigation? At first we heard from that honorable gentleman and others that the question of
irrigation in New South Wales was one of paramount importance, that they had thousands,
25 if not hundreds of thousands, of acres of land which might be rendered fertile by using the
waters of the Darling and of the Murrumbidgee for the purpose of irrigation.
Mr. CARRUTHERS.-Not by me. You are quoting somebody else.
Mr. SOLOMON.-By other members of the delegation from New South Wales.
Undoubtedly the first argument placed before this Convention, and reiterated [start page
30 475] by member after member representing New South Wales, was that irrigation was of
immense importance to that colony. I think honorable members will hear me out that that
was the first ground taken. But the Minister of Lands for New South Wales, who should be
the one to know to what uses the lands of that colony can best be put, tells us to-day that the
question of irrigation is not of so much importance, because there have been arguments
35 over and over again from other members of the Convention that irrigation by pumping has
not been a success throughout Australia, but that it is in order to supply the millions or
hundreds of thousands of starving sheep and cattle in New South Wales with water in dry
seasons that they desire to retain the control of these waters absolutely.
Mr. CARRUTHERS.-Without which you would have no trade at all down the Murray.
40 Mr. SOLOMON.-Then again, the honorable member told us that these waters will be
absolutely returned to the Murray, or almost all of them, in another direction. I do not
understand this shifting of ground. First we have the question of irrigation works with a
view to agricultural settlement, with a view to adding to the fertility of the country, but it is
well known, as has been pretty well shown by previous speakers, that irrigation by
45 pumping has so far throughout Australia proved to be a bitter failure, to the cost of Victoria
and South Australia, with their experimental settlements at Mildura and Renmark. So far
from enabling the settlers to profitably occupy the land, and to compete with California and
p 461 9-3-2009
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other places in the growth of fruits and so forth, irrigation has been an absolute failure. The
distance of the settlers on the Murray from the markets, and the cost of from 25s. to 30s. an
acre for irrigation by pumping, have precluded the possibility of their competing with
California in these matters. We know that not only these two settlements but that other
5 settlements on the Murray which have been established by the South Australian
Government have been absolute and utter failures. The representatives of New South Wales
have retreated from that particular ground altogether. They do not require the waters of
these rivers for the purpose of irrigation, for the purpose of agricultural settlement, but for,
the support of the pastoral industry in the pastoral country. Will any honorable member
10 with colonial experience tell me that he knows of pastoral country being profitably
occupied, of sheep or cattle being profitably grown, in irrigated country, except in some of
the northern and north-western parts of Queensland, where the irrigation has been by
gravitation from artesian bores? With that exception, I think, I may safely challenge any
honorable member to show me where the occupation of pastoral country, especially in the
15 present state of the market for pastoral produce, has been rendered profitable by irrigation
by pumping. What are the conditions of the country on the borders of the Murray which
they are going to irrigate? Are the levels such as to permit of irrigation by gravitation
except at a tremendous cost?
Mr. CARRUTHERS.-I never referred to irrigation at all. I referred to water conservation
20 and the supply of water in the creeks for the stock to drink.
Mr. SOLOMON.-Precisely; water conservation for the supply of stock over a vast area.
This water has to be conserved in natural lakes, which are dry in most seasons. The water is
to be carried from these lakes over miles of country. I have seen sketches of what is
proposed by the New South Wales Government. They propose to carry the water over
25 stretches of dry country for miles and miles. Will the honorable member say seriously that
he believes pastoral occupation can be profitably conducted under such circumstances?
Mr. CARRUTHERS.-I did not relate such ridiculous circumstances.
Mr. SOLOMON.-Unfortunately, those are the circumstances. Having retreated [start

page 476] from the position that the water was necessary for irrigation for agricultural
30 settlers, honorable members say they must have this water for the benefit of the pastoral
country.
Mr. CARRUTHERS.-What does the trade of South Australia consist of except the
carrying of the wool from this pastoral country, and the wool cannot be grown on the
sheep's back unless there is a water supply.
35 Mr. SOLOMON.-At the present prices it would not pay to grow wool under such
circumstances, and such an experiment would be disastrous to the people of New South
Wales. If this Convention prevents the possibility of such an experiment being made it will
confer a benefit upon the people of New South Wales. It has been tried elsewhere, and
never without failure. The honorable member said that this would not decrease the flow of
40 water in the Murray; that the water will be afterwards returned to the Murray with little
loss.
Mr. CARRUTHERS.-I referred to a particular place.

END QUOTE
.
p 462 9-3-2009
p463
QUOTE
Clause 115.-(Provisional government of territories.)
Mr. BARTON (New South Wales).-There is a question as to whether the word

"provisional" should remain. Where the territory is not part of an existing state, of course
5 the Parliament might raise that territory into a state after a certain term of
government; but when the territory is part of an existing state that can only be done
by the consent of the state or its Parliament. As to these territories the word
"provisional" is probably not an incorrect description, but the question arises whether it is a
necessary word. The administration and government of a territory, are words quite
10 sufficient to describe the process as it goes on. It might not be wise to use this word
"Provisional," implying an entirely temporary government, because there might be
territories which, after they became part of the Commonwealth, might not for many years,
if at all, become states.
Mr. HIGGINS.-The word is not used in the Constitution of the United States.
15 Mr. BARTON.-I fancy it is not. I think it was only introduced in the Bill of 1891. I beg
to move that the word "provisional" be struck out.
Amendment suggested by the Legislative Council of New South Wales-

Omit the words "any territory surrendered by any state to and accepted by the
20 Commonwealth, or."
The amendment was negatived.
The CHAIRMAN.-There is another amendment suggested by the House of Assembly of

South Australia, to add at the end of the clause the following words:-
No federal territory shall be alienated in fee simple, nor shall it be leased for a longer
25 period than 50 years, except upon payment of a perpetual rent, which shall be subject to
periodical appraisement at intervals of not more than ten years.
Mr. GLYNN (South Australia).-I promised the honorable member who moved this
amendment in the South Australian Assembly to amend it in a direction that he agreed
would be desirable. As it stands, I believe it is in substance the amendment moved in
30 Adelaide by the honorable member (Mr. Wise); but it would prevent an exchange of land. It
also introduces two forms of leases-one for 50 years, and the other in perpetuity. I beg to
move-
That the amendment be amended by leaving out all the words after "fee simple," with the
view to insert the following words:-"except by way of exchange for other territory, nor
35 leased, except in perpetuity at its fair annual rent, subject to periodic appraisement at
intervals of not more than fourteen years, in a manner to be determined by Parliament."
The amendment will amount to this: That there is to be no alienation in fee simple, and
any alienation must be in the form of a lease in perpetuity, at a rent to [start page 699] be
periodically appraised, in a manner to be determined by Parliament.
40 Mr. HIGGINS.-Suppose it is not Crown land at all?

p 463 9-3-2009
p464
Mr. GLYNN.-It applies to federal territory.
Mr. HIGGINS.-It might be federal territory, and yet part of it might be owned by private
individuals.
Mr. GLYNN.-That is a question affecting the original amendment, which I merely wish
5 to amend. After the federal capital is decided upon, the Federal Parliament might have a
large quantity of land which might not be used for building, the leasing of which might in
the future yield an enormous amount of rent, which could be applied in diminution of
taxation.
An HONORABLE MEMBER.-Let the Federal Parliament deal with that.

10 Mr. GLYNN.-Unless we put in this provision, goodness knows when the Federal
Parliament might adopt the principle. I am not speaking on the principle at present; I
believe in it, but I am not going to re-argue the question.
Mr. BROWN (Tasmania).-This is one of the numerous questions which might very well
be left to the Federal Parliament. It opens up the whole question of perpetual leasing, which
15 might be discussed for months. This is clearly a question for the Federal Parliament to
decide. The various colonies will be represented in the Federal Parliament on this question,
as on others which have been discussed here at very great length. The representatives of the
different colonies will have an opportunity of airing their theories about the occupation of
land, and it would be a waste of time to discuss the question now. I have not taken part in
20 past discussions, for the very reason that I am now giving why we should not discuss this
question. It seems to me that we have spent a great deal of time in deliberating upon
questions which might very well have been left for the decision of the Federal Parliament.
It seems to me to be specially appropriate that we should leave this subject to the Federal
Parliament. No doubt the honorable member (Mr. Glynn) is quite earnest in his desire to
25 establish the theory which he holds as to the occupation of land, but I hope that he will be
content to leave it to be dealt with hereafter, and that he will not ask us to enter upon such a
very wide discussion.
Mr. Glynn's amendment was negatived.

The amendment suggested by the House of Assembly of South Australia was negatived.
30 The clause, as amended, was agreed to.
Clause 116 (Alteration of limits of states) was agreed to.
Clause 117-A new state shall not be formed by separation of territory from a state without
the consent of the Parliament thereof, nor shall a state be formed by the union of two or
more states or parts of states, or the limits of a state be altered, without the consent of the
35 Parliament or Parliaments of the state or states affected.
Mr. WALKER (New South Wales).-As I have already remarked, I hope that the leader
of the Convention and the Drafting Committee will see their way to alter this clause so as to
provide for a contingency which I should be sorry to see arise. The event of Queensland
coming into the Federation will depend upon Her Majesty's prerogative being
40 maintained with regard to the division or separation of that colony. At present Her
Majesty can sub-divide that colony upon a requisition from the inhabitants. We should, if
possible, continue that power, so that if Queensland should come into the Federation,
p 464 9-3-2009
p465
Northern and Central Queensland could, by petition to Her Majesty, have that portion of
the colony, if they so desire, separated into another colony, and at the same time remain
within the Commonwealth. I will not detain the committee, because, on this matter, I am
only putting forward a suggestion. I do not propose to move an amendment. I think I am
5 not equal to framing an amendment in legal phraseology, but I believe the leader of the
[start page 700] Convention is perfectly competent to speak on this subject, having been
interviewed, to my knowledge, by the chairman of the Separation Committee in
Rockhampton, from which committee, by-the-bye, the Convention received a petition in
Adelaide setting out the peculiar position of Central and Northern Queensland. I, therefore,
10 ask Mr. Barton if he will kindly see whether it is possible to draft a clause by which
Queensland may more readily come into the Commonwealth than I fear she otherwise
would do?
Mr. BARTON (New South Wales).-This is a very prickly subject, because if you
endeavour to keep alive the present power of delimiting and subdividing Queensland
15 without the consent of its Parliament, and import this into the Constitution, the danger
arises whether, if you secure the assent of either Northern and Central Queensland to the
Constitution, you may not alienate a large majority in Southern Queensland. Again, the
difficulty would arise, and I confess it is still a difficulty, that if you keep in this
Constitution a provision which necessitates the assent of the Parliament of a colony before
20 that colony can be subdivided, that gives the majority in Southern Queensland powers over
the minority in Central and Northern Queensland which they do not wish to be denied, and
it might make the Constitution distasteful to them. As far as I am concerned, I do not like to
handle the subject. It may be that before much time has elapsed Queensland will have got
rid of this difficulty and will have agreed to some form of separation.
25 Mr. FRASER.-They are getting rid of it now.
Mr. BARTON.-The way of dealing with this question that my honorable friend (Mr.
Walker) proposes is, I am afraid, not a way of getting rid of the difficulty. I will make him
this promise: I will draft for him some such provision as will meet his views in reference to
this matter. I will not move the amendment myself, but if it is the wish of the Convention to
30 recommit the clause later on there will then be an opportunity for him to move its
insertion.
Mr. WALKER.-I thank the honorable member.
The clause was agreed to.

END QUOTE
35 .
I will quote certain parts about the WATER and RIPARIAN RIGHTS issue as to show it is not
just made up by me.
.
QUOTE
Mr. WISE.-Each citizen is entitled absolutely to use all the water that falls on his own
land.
END QUOTE
45 .
p 465 9-3-2009
p466

QUOTE
Mr. BARTON.-It would be the same as federalizing our lands.
5 Mr. OCONNOR.-It would, because the value of the land is inextricably mixed up with
the value of the water supply to it.
Mr. HIGGINS.-All conditions would apply to lands; all circumstances affect their value.
END QUOTE
.
QUOTE
Dr. COCKBURN.-We are not "previously separate states."
Mr. WISE.-Not separate? I wish we were not.

Dr. COCKBURN.-No; we are all parts of one empire.
15 Mr. REID.-I wish I could think so when we send goods over your border. We find that
we are two bodies then.
Mr. WISE.-Mr. Clark's paper proceeds:-
under a Constitution which establishes a Judiciary with power to adjudicate controversies

between the several states, it thereby submits the validity of an its conduct which affects the
20 rights of citizens of the other states in the Federation to the decision of the Federal
Judiciary, which is required to adjudicate by the known and settled principles of
international law or municipal jurisprudence, as the particular case may demand. (See 6
Wheaton, page 380.)
Now, it will be observed that in that position there is no statement that all that is meant is
25 an actual legal right. The question is whether that which is done affects the neighbouring
states.
Sir GEORGE TURNER.-Do you admit that the Federal Court will allow South
Australia to have a share of this water?
Mr. WISE.-I say this: That if South Australia drained all our water, whether by opening
30 the bar of the Murray or by establishing big irrigation works, to the injury of the settlers in
our territory, New South Wales or any settler within our territory could obtain an injunction
from the Supreme Court to restrain her from doing so; and vice versa.
Mr. GLYNN.-Is that something new conferred by the Constitution?

Mr. REID.-You are always after some thing new.
35 END QUOTE
.
Hansard 11-2-1890
QUOTE
UNION OF THE COLONIES.
40
Discussion oh Sir Henry Parkes' motion, in favour of an early union under the Crown of all
the Australasian Colonies (proposed the previous day), was then resumed.
p 466 9-3-2009
p467
END QUOTE
.
QUOTE
Dr. COCKBURN.-
5 There is another matter in which, I think, without much difficulty we can exhibit the federal
spirit in detail-a question which greatly concerns the colony of South Australia-I mean the
question of navigation and riparian rights of the Murray waters. That is a matter on [start
page 47] which I think there is an opportunity for the colonies adjoining the Murray to
exhibit the true federal spirit, and I trust that the colony of New South Wales will very soon
10 see its way to meet the wishes of South Australia in this matter. We have been pressing for
a long time now for a Conference between the three colonies concerned to consider the
matter, because hitherto no basis of agreement has been arrived at, and I do trust that the
federal spirit which has prevailed amongst the Colonies in regard to other matters will, in
this instance also, have its due effect.
15 END QUOTE

QUOTE
Mr. REID.-I do not like to refer to a certain burning question, although it has ceased to
20 be so burning now. But take the case of the rivers. Irrigation is within the sovereign
powers of a state. As to navigation, the same subject is within the sovereign powers of
the Commonwealth. In administering the respective laws, things may be done which
on one side or the other may be considered to be wrong. As the Bill at present stands, if
the law of the state with reference to irrigation conflicts, and is inconsistent with the law of
25 the Commonwealth with reference to navigation, it is simply sufficient to point out to the
court that the state law is inconsistent, and down goes the state law, apart from any element
of equity or fairness. And, although there might be an opportunity to so adjust the
respective claims as to do justice between them without injuring either, none of these
considerations would come in. It would only be necessary to point to the Commonwealth
30 law, and to show that the state law was inconsistent with it.
Mr. HIGGINS.-It must be a valid Commonwealth law.

Mr. REID.-Yes, but a valid Commonwealth law may in the interests of navigation
prevent irrigation. It may absolutely prevent any water conservation. I do not suppose
such a thing would ever happen, but I only refer to it by way of illustration. If it did
35 happen the aggrieved state, on which a terrible injury would be inflicted, has to
appear before the High Court to complain of this.
END QUOTE
.
And
40 QUOTE Mr. REID.-
If the Commonwealth legislate so as to prevent, in the interests of navigation, water
conservation-a thing we do not conceive of, but which may be used as an illustration-
then the state would go to the High Court and complain of the action of the law of the
Commonwealth. The state would contend that that Commonwealth law abridged the
45 rights of states in regard to water conservation, as section 52 expressly provides that
the rights of the state to a reasonable use of the water shall not be abridged. The state
would come into court complaining that the law of the Commonwealth had destroyed
the special provision made in section 52; and the court would then have to look at the
Commonwealth law, and then at the state law. There might be a state law sanctioning
p 467 9-3-2009
p468
a work of water conservation, and there might be a Commonwealth law forbidding

water conservation in that part of the colony on the ground that the interests of
navigation required that the whole of the water should be kept in the river at certain
times of the year, or all the year round. The High Court, under section 101, would
5 find that the state law was inconsistent with the Commonwealth law, and that the
Commonwealth law was inconsistent with the state law. What is the provision in
section 101? The section reads-"When a law of a state is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid." If the words are added which I propose to add, the
10 question would assume a different complexion. My [start page 2271] proposal is that
at the end of the clause the words be added-"Laws made by a state concerning
matters over which the Commonwealth has no power to legislate excepted." With this
amendment the High Court would find that a law on water conservation, being on a
subject on which the Commonwealth has no right to legislate, would not be subject to
15 the terms of this section.
END QUOTE
.
Again
QUOTE
20 With this amendment the High Court would find that a law on water conservation,
being on a subject on which the Commonwealth has no right to legislate, would not be
subject to the terms of this section.
END QUOTE
.
25 One will find however that this remains subject to RIPARIAN RIGHTS, as the Framers of the
Constitution also made clear that no one owns the water!
.
QUOTE
30 Mr. WISE.-My honorable friend and I have not often differed. On one occasion, I
believe, we did, and on that occasion I was right. Without occupying further time, I accept
what I believe to be the decision of the Convention. With the desire to reserve exclusive
provincial control over the matters over which control exists to-day, I suggest as an
amendment the insertion of these words:-
35 Nothing in this Constitution shall affect the exclusive right of each state to legislate
upon the subjects of water conservation and irrigation within its own territory.
Now, we are told by South Australia that that right does not exist to-day. If it does not
exist there is a very easy way to test it. Let an application be made to-morrow in the Equity
Court, through my honorable friend (Mr. Higgins), for an injunction to restrain the water
40 trust of Goulburn, on the ground that it has no power to divert any of that water which
naturally would otherwise flow past the territory of South Australia; or let the application
be made to the Privy Council. The amendment which I suggest is designed to preserve, not
only to us, but to our neighbours, whatever rights either may have. If the representatives of
South Australia could, by application to the Imperial Parliament, get the powers of the
45 Legislature of New South Wales or Victoria so altered as to deprive them of making use of
water for this purpose, that right is preserved by the amendment I suggest. All that is
preserved is the present exclusive right.
END QUOTE
p 468 9-3-2009
p469
And
QUOTE
Mr. WISE.-It is all a matter of surrender, but there is no surrender in respect of these
water rights by any colony. That is to say, the right to control navigation is a right which is
5 surrendered by every colony, not by one at the expense of another. And if we do desire
honestly to keep irrigation separate as a matter of [start page 588] provincial concern, what
can be the objection to making that statement definitely in the Constitution? My objection
to the previous amendment was that it attempted to lay down a hard-and-fast rule for the
guidance of all future time, for the guidance particularly of the Federal Parliament, when
10 we could not possibly forecast the necessary physical conditions, which might determine
the relative importance of the two questions of irrigation and navigation. But if we have
refrained from that, and if we are simply making an assertion that things are to remain as
they are, then much of the objection I had is removed. The objection I have to the present
amendment is that it is a serious interference with provincial rights. It provides that no state
15 or citizen shall be prevented from taking water. It seems to me clear that this being an
Imperial Act, passed by the Imperial Parliament, the result would be an absolute destruction
of the right of any provincial Parliament to legislate over its own waters. As the law now
stands, a man may not take water as he pleases; he maybe prevented, because he must pay
regard for the rights of other riparian owners. If we put this provision in the Constitution,
20 which will be an Imperial Act, that no citizen is to be prevented from taking water, we
abrogate the common law entirely.
Mr. ISAACS.-Strike out the words "or citizen."
Mr. WISE.-That would remove that part of my objection. It is a mere matter of drafting.
It appears to me that the form of the amendment, as I suggest it, makes it much more clear
25 that the intention of the committee is simply to leave things as they are.
Mr. SYMON.-What is your amendment?
Mr. WISE.-My amendment is as follows:-
Nothing in this Constitution shall affect the exclusive right of each state to legislate upon
the subjects of water conservation and irrigation within its own territory.
30 Mr. ISAACS (Victoria).-I rather favour the amendment submitted by the Premier of New
South Wales, with this exception, that I think the words "or citizen" should be struck out.
Mr. REID.-I am quite agreeable.
Mr. ISAACS.-A great deal of difficulty will be cleared away by the excision of those
words. It will leave the matter in this position: That, by reason of Mr. Glynn's addition,
35 there will be no doubt, I take it, that the Federal Parliament will have a right to legislate as
to the navigability of these rivers.
Mr. SYMON.-No; only in so far as relates to the maintenance of the cardinal principle of
the Constitution-the freedom of trade and commerce.
Mr. ISAACS.-That is quite right, but, according to the whole of the decisions in
40 America, this provision will leave it absolutely to the discretion of the Federal Parliament
to say how far the control of the waters is necessary for that purpose. There is no power in
the United States to say that you have gone too far. It is quite right to state that they are
p 469 9-3-2009
p470
only to legislate as to the navigability of the rivers for the purposes of trade and commerce,
but the question of the extent of the control to be assumed by the Federal Parliament is a
political one, as the courts have decided time after time.
Mr. SYMON.-Do you think the control of the freedom of trade and commerce, which is
5 the basis of the Constitution, ought to be cut down at all? It is a little too late to raise this
issue.
Mr. ISAACS.-I am saying that if you give the power to the Federal Parliament with
regard to trade and commerce it ought to be complete, but I say, as I said beforehand for the
reasons I gave the other day-that we must place in the forefront the question of irrigation
10 for the purpose of production.
END QUOTE
And
QUOTE
Mr. SYMON.-Why cannot you trust the Federal Parliament?
15 Mr. ISAACS.-Mr. Wise has raised a very important question as to whether any [start
page 589] individual could appeal to the Supreme Court in the absence of any federal
legislation to compel the removal of obstructions? I want to refer to a very late decision of
the Supreme Court of the United States, which, to my mind, goes to show most
conclusively that that cannot be done. The case is that of the Willamette Iron Bridge
20 Company v. Hatch, which was decided in 1887, and is reported in vol. 125 United States
Reports, at page 1. I am quoting now from page 8:-
The power of Congress to pass laws for the regulation of the navigation of public
rivers, and to prevent any and all obstructions therein, is not questioned. But until it
does pass some such law, there is no common law of the United States which prohibits
25 obstructions and nuisances in navigable rivers, unless it be the maritime law, administered
by the courts of admiralty and maritime jurisdiction. No precedent, however, exists for the
enforcement of any such law; and, if any such law could be enforced (a point which we do
not undertake to decide), it would not avail to sustain the bill in equity filed in the original
case. There must be a direct statute of the United States in order to bring within the scope
30 of its laws, as administered by the courts of law and equity, obstructions and nuisances in
navigable streams within the states.
The matter seems to be absolutely clear. Other decisions are referred to in this case, and it
is established in the United States that until Congress does legislate there is no power by
which the courts can enforce the removal of obstructions.
35 Mr. SYMON.-Is there any decision in the United States or anywhere else to the effect
that a dam for irrigation would be an obstruction?
Mr. ISAACS.-I am not aware that there is a precise decision, but I have no doubt that
any abstraction of water from a river which reduced its navigability would be held to be an
obstruction to navigation. You can obstruct navigation by taking water away. In fact, that is
40 the most effectual means of doing it. It seems to me that some such provision as that which
the Premier of New South Wales has introduced is necessary, unless we are going to say
that we are willing to abandon the claims of irrigation.
Mr. REID.-That is the one point.
p 470 9-3-2009
p471
Mr. ISAACS.-It is. If we are going to abandon the claims of irrigation, leave the matter
as it stands. If we are not going to abandon the claims of irrigation-if we are going to give
the people water to enable them to utilize the land in the most profitable way, perhaps in
small settlements, as in parts of America-then we should insist on inserting some such
5 provision as this. With the omission of the words "or citizen" the amendment will, I think,
meet the whole case. It means that no state shall be prevented by any law of the Federal
Parliament from taking any water it may require for its own use for conservation or
irrigation. I regret that the amendment is not coupled with the other qualification which I
desired to have added to it, but I intend to support it, because it acknowledges and enforces
10 the right of irrigation. I am very sorry that the addition has not been made to it which, in my
opinion, is necessary, to give complete and ample justice.
Mr. TRENWITH (Victoria).-It seems to me that the proposal now before us makes
things worse than they have been at any time during the discussion. The amendment the
Premier of New South Wales has been compelled to make proves the injustice of the whole
15 proposal. He has been induced to strike out the words "or citizens." Clearly if we enter into
this Federation on friendly terms the state becomes to the Federal Parliament what the
citizen is to the state Parliament. If it is improper-and I agree that it is, that a citizen
within a state should use some portion of a stream in such-a manner as to injure some
others below him on that stream, it is equally wrong that a state should use some
20 portion of a stream in such a manner as to injure some other state below it on that
stream.
Mr. WISE.-Each citizen is entitled absolutely to use all the water that falls on his
own land.
[start page 590]

25 Mr. TRENWITH.-If the water that runs on to his land flows from other lands, and
passes on from his lands to other lands again, all the parties along the stream have an equal
right in regard to the use of it. Nobody at either end can act so as to prejudice the other.
Suppose, for the sake of argument, that a stream has been running through a person's land,
which is of no use to him; he considers it to be a nuisance, and he dams it back; he would
30 be liable for causing damage to those people. The honorable member (Mr. Wise) says that
his amendment is to leave things as they are. I respectfully submit to him that that is not the
case. It is to state distinctly in this Constitution that each state has a natural right,
enforceable by law in future, to legislate as it chooses with reference to the waters that run
into other states. Now at present, although that right is claimed, it is very vigorously
35 contested, and I am one of those who take the liberty to contest it. At present we have an
appeal to the Imperial authorities, but if we get another Imperial Act with this declaration in
it, that each of the states may legislate absolutely if they choose, without regard to the
interests of other states, we shall have lost that appeal which we now possess to the
Imperial authorities.
40 Mr. GLYNN.-Validating an act which at present may be illegal.
Mr. TRENWITH.-It seems to me, in view of the extraordinary length of this discussion,
and the extraordinary legal intricacies developed in connexion with it, that it would be
better to leave the Constitution in this respect a blank page than adopt such an amendment
as is here suggested; that, badly off as under some circumstances some portions of the
45 continent dependent upon the Murray undoubtedly are at present, it would be immensely
p 471 9-3-2009
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worse if we adopted either the amendment of the honorable member (Mr. Wise) or that
moved by the Right Hon. the Premier of New South Wales.
Mr. REID.-What is your view about irrigation?
Mr. TRENWITH.-I think irrigation is all-important. It is highly probable that it will be

5 immensely more important that navigation. But if it is important to New South Wales, it
also is to South Australia and Victoria. If, as I contend, there do exist water conditions in
these three colonies in connexion with which each have an interest, and to a certain extent
an equal interest, there must be created, either in regard to navigation or irrigation, some
equitable central authority which can decide when conflict arises upon the justice of the
10 case, according to all the conditions and facts before them. If we were independent states,
as I ventured to point out the other day, we should have the right, in the event of wrong or
injustice, to resort to arms. That is an extremely undesirable thing, which I hope will never
happen, but when honorable members talk about legal rights between separate states, with
all deference I say that they are talking absurdity. There can be no legal rights between
15 separate states, because there is no international court, no tribunal, to which they can refer a
claim with reference to those legal rights. All the rights that separate states possess is the
right that is contained in their strong arm; if they are strong enough to maintain what is
absolutely unjust they can do that. To illustrate my view, I will assume that instead of New
South Wales being the stronger, as it undoubtedly is, it were the weaker state as compared
20 with South Australia. I will assume that it proceeded to do something which was perfectly
correct and just, but which South Australia objected to. If they were separate states, with no
other power to intervene, South Australia could by force of arms demand that New South
Wales should do what South Australia desired; but no one would call that a right except the
right of conquest. It is very much in the nature of the right of conquest that a claim is made
25 on behalf of New South Wales, that is, that it is in the stronger position. It [start page 591]
has never had to fight for that position, but it is strong enough to fight if necessary, and
therefore claims the right. But when New South Wales talks about legal rights or moral
rights in that contention, I venture to say that it is talking absurdity. We are here as persons
representing the various states, eager to arrive at a decision that shall be friendly to start
30 with, that shall be just and equitable in all its incidence, having right to stand upon, and
what we call our national rights at present. If it happens, in the use of some of the
conditions by which we find ourselves surrounded, that one state works injury to another
state, though we may be strong enough to do it, it is repugnant to every sense of right and
justice to say we shall do it. Taking the illustration that I elicited from the honorable
35 member (Mr. Wise) that there does lie inherent in the various states the right to dam up
every billabong and tributary of the Murray to such an extent as to leave it a dry channel, I
say, unhesitatingly, it does not exist; and that if it were exercised an appeal to the Imperial
authorities would restrain the persons who acted in pursuance of such a claim. They would
not permit the colony of New South Wales to reduce the Murray to a dry gully. If they
40 would, what is the position of New South Wales in connexion with it? When New South
Wales has more water than it wants, it will say to South Australia-"Find a passage for this
water to the sea." When New South Wales wants all the water, it will say to South
Australia, without considering its interests-"The river shall be left dry, it shall be of no use
to you; there shall be no water for you." Is that a just or equitable attitude to assume?
45 Mr. REID.-Is it not a clumsy cure for that to put irrigation at the mercy of navigation?
Mr. TRENWITH-I agree with the honorable member, and I never sought to do that. I
never sought to put one at the mercy of the other. As I have said, we are about to create a
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Constitution, under which we hope a nation shall be built, which will go on developing, and
the necessities of which may become such that we can form no conception of them. If we
wish that to be so we should create under the Constitution a power to establish a tribunal
which shall deal equitably with the conditions which shall arise. We should not be guided
5 by anything we see now as to how disputes shall be settled, but we should be guided by the
exigencies of the various colonies at the time when the settlement is called for. That is all I
have ever contended for. That is what, I think, ought to be done. The whole question with
regard to the control of the rivers in which two or more colonies are interested-from the fact
that they flow from one to the other, and all the questions in connexion therewith, either as
10 to irrigation or navigation, without saying which shall be paramount-should be placed
under federal control; so that in the future, if conditions have altogether changed, if conflict
of interests should arise, and it should be alleged that one colony is acting in a manner
prejudicial to the other and unfairly, the federal tribunal, Constituted upon a fair and right
basis, and having a number of impartial persons upon it, should be able to say with
15 authority what is the right and equity of the case, and what should be done.
Mr. SYMON (South Australia).-I only wish to interpose for one moment between the
division and the speech of my honorable friend. And I wish again to thank my honorable
friend (Mr. Trenwith) for his very vigorous and very lucid exposition of principles which
appear to me to be impossible to be controverted. But I do not wish to enter into these large
20 questions at this particular moment. The whole of the discussions good deal of which I
have been exceedingly sorry to listen to-has proceeded under an entire misapprehension of
the position of things under this Constitution. Honorable members seem [start page 592] to
think that there is something hid somewhere within the four comers of this instrument as it
now stands which declares that navigation is to be deemed superior or paramount to
25 irrigation. There is not one single word from beginning to end of this Bill, as we now hold
it in our hands, which can possibly be construed to have that effect. Now, that is what I
wish to impress on honorable members-not one single syllable, from beginning to end of
this Bill, which can be construed to have the effect of making irrigation subservient to
navigation.
30 END QUOTE
.
Albeit CLIMAT CHANGE may not have been an issue at the time of federation (were they
lucky?) nevertheless it is clear that the rivers were dry for 2 or 3 years already then. And we are
talking about more then 100 years ago!
35 .
QUOTE
The CHAIRMAN.-We now have to go back to clause 52, sub-section (31).
[start page 376]
40 Clause 52-Sub-section (31).-The control and regulation of the navigation of the River
Murray, and the use of the waters thereof from where it first forms the boundary between
Victoria and New South Wales to the sea.
Mr. GLYNN (South Australia).-In order to give some definiteness to the discussion of
this river question, I think I will now propose the amendment which I have prepared. I may
45 say that it is one that takes to some extent the character of a compromise, and one which I
think should recommend itself to the good sense of the representatives of New South
Wales, as I believe it will also secure the sympathy of the other members of this
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Convention. What I, at all events and I am sure my South Australian colleagues also desire
is that whatever solution we arrive at will have the effect of being a fair compromise. I may
remind honorable members that, in speaking upon the question formerly, I made a
suggestion that the Federal Parliament might have power to maintain and improve
5 the navigability of the Rivers Murray and Darling, and to apportion on the principle
that regulates riparian rights between individuals the surplus waters thereof. I am going
now to make a suggestion which will not go quite as far as that. I think we are reasonably
entitled, on the principle of the comities that regulate opposing interests between nations,
and allow full ownership of inter-state streams, to the fall terms of the amendment which I
10 suggested on a former occasion: That is, to maintain, and in the interests of the Federation-
of New South Wales as well as South Australia and Victoria-to improve, the existing
navigability of the Rivers Murray and Darling; because the improvement of those rivers
would be of exceedingly great use in conserving the waters for the purpose of irrigation in
New South Wales, and would raise the river to a permanent level of 4 feet. Sometimes
15 zero is reached for as long as twelve months. In 1886 the navigation of the Darling was
only possible for two days; and if honorable members will look at the map which I had
prepared some four months ago, and which is now in the appendices of the New South
Wales Convention, they will see that the navigation of the Darling sometimes stops for
two years, and is sometimes continuous for two or three years. There is ample water
20 passing down for an average permanent level of 4 feet being maintained in the water of the
Darling, as well as securing a considerable surplus supply for irrigation. The proposal I
made was a fair one in the interests of New South Wales, as well as Victoria and South
Australia-that power should be given to the Federal Parliament to hit upon some system of
keeping up the navigability of the river, and also utilizing the waters of the Murray and the
25 Darling for irrigation. That can be done effectively by some joint system of looking. Now,
New South Wales may object for some reason or another to giving the Federal Parliament
power to improve the river, but I say that New South Wales cannot reasonably object to
empowering the Federal Parliament to keep up the existing navigability of the river, nor can
they object, to some sort of a ban being placed upon the power of New South Wales to
30 destroy the natural navigability from month to month of that river. The proposal which I am
going to ask the committee to consent to is that the existing navigability shall from time to
time be maintained, and that when the three riparian colonies agree upon a system of
improvement the Federal Parliament shall have power to carry it out.
END QUOTE
35 .
It should be understood that the Commonwealth of Australia is a POLICAL UNION, that is
created by STATUED LAW and which is not a sovereign state and has no sovereign Parliament
but has a constitutional Parliament but is the sovereign of all lands within its possession. As
such, it has no powers to amend the Constitution which created it.
40 The colonies were DOMINIONS (which they still are) but under the terms of the
Commonwealth of Australia Constitution Act 1900 (UK) became known as States which no
longer enjoyed their sovereign Parliaments to amend their own Constitutions but became
Constitutional Parliaments that that as like the Commonwealth could only submit to the electors
a proposal to amend its constitution. Therefore, since federation any amendment to a State
45 Constitution can only be validly done if approved by a State referendum. If the state electors veto
the proposed amendment then it fails.
.
This is also relevant considering that purportedly Queensland amended its set up as that by 1987
legislation moved the Governor no longer appears to be under the Crown, but now basically is a
50 public servant. Under a Sovereign parliament this kind of set up might perhaps be acceptable but
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under a Constitutional Parliament one as separation of powers in that then the Executive the
Judiciary and the Parliament are separate identities and the Crown albeit in title being part of the
executive, and the Parliament it cannot be subject to the Executive or the Parliament.
.
5 The Governor is and must remain to be the LEGAL LINK with the British Crown. A governor
who basically acts as some parliamentarian secretary is no longer a legal link to the Crown and I
view that all and any purported legislation given royal assent in fact is ULTRA VIRES because
it fails to comply with the basis of the Federal Constitution that it must be under the British
Crown.
10 .
While I understand that the Queensland Parliament somehow went to a Queensland Constitution
Act 2001 and then back to the 1876 Constitution Act 1867 and then again back to the
Queensland Constitution Act 2001 (or something to that kind of scenario) for purposes of trying
to get rid of the Crown, etc, the truth is that any amendment since federation not approved by the
15 State electors is and remains to be ULTRA VIRES. As such the 30 October 2007 decision as to
FEE SIMPLE by the High Court of Australia in my view is one of utter worthless status
because unless the High court of Australia did appropriately consider the constitutional status of
each and every purported amendment to the Queensland Constitution as in force at the time of
federation it would have failed to appropriately consider all relevant matters.
20 .
Neither do I view that the creation of a so called Brigalow corporation and the movement of
Crown land to this corporation could be deemed to be constitutionally valid.
.
It would also be an absurdity for the State of Queensland or any of its organs to be listed as a
25 corporation under the crown and yet operate as a State without a Crown. Under the federal
Constitution a State cannot but be under the British Crown! Not some Queen of Danmark, Queen
of Norway, Queen of Belgium, Queen of The Netherlands, Queen of Australia, or whatever
because the Framers of the Constitution made it very clear it was and remains to be under the
British Crown! (See below also)
30 .
While the United States became independent of the British Crown nevertheless the Supreme
Court held that the Magna Charta is still applicable as it is embedded in its constitution.
.
Canada and New Zealand both became colonies as the federation but the Commonwealth of
35 Australia specifically didn’t because the Framers of the Constitution didn’t desire to follow that
kind of system but wanted to keep the colonies (now States) as sovereign entities (other the n for
the legislative powers handed over to the POLITICAL UNION called Commonwealth of
Australia, and as such the Westminster Act was fooled in that regard also as to hold that the
Commonwealth of Australia was a dominion where clearly it was not.
40 .
QUOTE
Mr. HOLDER.-We do not want to deprive New South Wales of any such power. We
wish to leave that colony as free as ourselves to use her rightful share of the water for any
45 purpose she pleases. Who is to determine what is the rightful share? The Federal
Parliament.
END QUOTE
.
50 QUOTE
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" I say it ought to be upset at once and at the very earliest point. As soon as ever you
find it has gone beyond the bounds you ought to say-"This thing is illegal." Otherwise
you will leave to the Ministry of the day these powers of which you are so careful,
giving them to a majority of the States and to a majority of the people. You would
5 allow the Ministry of the day to exercise a suspending power as to whether it would
enforce a law or not, which is most dangerous.
END QUOTE
.
Seems that the Commonwealth of Australia therefore has every constitutional power to regulate
10 water usage, and determine what is reasonable use to protect NAVIGATION but no more than
that!
.
National Australasian Convention) (Chapter 33 of the CD)
15 QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),
there has been [start page 1856] a considerable change. Two matters in that sub-section
seem to me to deserve attention. First, it is provided that all taxation shall be uniform
20 throughout the Commonwealth. That means direct as well as indirect taxation, and
the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
should like the Drafting Committee to consider whether saying the tax shall be uniform
would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
25 the same weight on the same class of property, wherever it is found. It affects all kinds of
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to
be imposed might be held to be unconstitutional, or, in other words, illegal, if it were
not absolutely uniform.
30 END QUOTE
Again;
QUOTE
It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not
35 absolutely uniform.
END QUOTE
.
Because of this the need for an Inter-State Commission was recognised in Section 101 of the
Constitution.
40 .
QUOTE
Mr. HIGGINS.-
45 My suggestion is this: It is now put to us that we must make the appointment of the
Inter State Commission obligatory.
END QUOTE
And
QUOTE
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p477
Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of

Parliament.
END QUOTE
.
5 The Inter-State Commission was created where it could then make decisions to what may suit
best for the States concerned , subject to any ruling by the High Court of Australia, and not
bound as the Commonwealth of Australia as to for the “whole of the Commonwealth”.
As such, river navigation would be best handled by the Inter-State commission, in that respect.
.
10 BACK TO THE WATER ISSUE
.
The issue of property rights is a considerable one if one has FEE SIMPLE to a property. The
rights of a property owner with FEE SIMPLE under the current POLITICAL UNION system
versus that of a reformed republican or monarchistic confederation would be horrendous.
15 .
QUOTE
Mr. WISE.-Each citizen is entitled absolutely to use all the water that falls on his own
20 land.
END QUOTE
.
As to handing over legislative powers in regard of water to the Commonwealth of Australia!
.
QUOTE
Mr. BARTON.-It would be the same as federalizing our lands.
Mr. OCONNOR.-It would, because the value of the land is inextricably mixed up with
30 the value of the water supply to it.
Mr. HIGGINS.-All conditions would apply to lands; all circumstances affect their
value.
END QUOTE
.
35 So, be careful not the state but you own water that falls on your land and let them not give it
away to the Commonwealth!
.
au.messages.yahoo.com/news/politics/139615
Agenda 21 is a UN (United Nations) plan to strip FEE SIMPLE from property owners and to
40 then have the landholdings managed by public authorities. Also to have special taxation put in
place against landowners to pay a tax that would nullify any profit making.
Under the current constitutional system this is not possible. The Commonwealth of Australia
cannot, albeit it may ignore this, enter into any kind of treaty for which it has no legislative
powers. The Framers of the Constitution made clear that they did not desire to federalise Crown
45 land. More over, they also made clear that the rain that’s false on the land of the landowner was
for him to own. As such COMMON LAW rights of FEE SIMPLE are embedded in the
constitution. They also embedded in the constitution the principle of RIPARIAN RIGHTS as
was then already applicable in Europe. The extensively debated this and made clear that by
Federation the High Court of Australia could adjudicate to the riparian rights of the respective
50 States governing rivers that crossed the territorial boundaries of states. As such, they excluded
p 477 9-3-2009
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any legislative powers by the Commonwealth or the States as in fact they also made clear that the
States had no powers to legislate as to the water usage as it belonged to all persons. Section 100
of the Constitution was to provide for the Commonwealth to legislate as to maintaining the
navigation of rivers but to such extend that it allowed reasonable use by landowners of the river
5 water.
.
As such farmers are entitled to build dams on their land and to collect water freely provided they
do not interfere with the natural streams on their lands that eventually goes into rivers. Rainwater
that by a farmer is collected into dams clearly belongs to the farmer as much as rainwater
10 collected by a property owner in a city belongs to the property owner. While some states have
legislated as to the usage of water that falls on their roofs, in truth it is unconstitutional and of no
legal force.
.
As for the rights of citizens;
15 .
QUOTRE
right which a person has as a British subject-the right of personal liberty and
20 protection under the laws-is secured by being a citizen of the States. It must be
recollected that the ordinary rights of liberty and protection by the laws are not among the
subjects confided to the Commonwealth.
END QUOTE
.
25 That is why so called ADMINISTRATIVE DETENTION is unconstitutional for the
Commonwealth to engage in because it is only for the States to enforce Commonwealth law!
.
However, when it comes to the issue of Queensland and perhaps other States having allegedly
gotten rid of the Crown, then those States are clearly in conflict with what is embedded in the
30 federal Constitution because the rights of a citizen under the British Crown cannot be denied by
any State. A state that claims to be without the Crown clearly cannot provide the rights and
entitlements provided for within the federal constitution and therefore the Federal Constitution
actually is an obstacle to any State to get rid of the British Crown.
.
QUOTE Sir SAMUEL GRIFFITH:
There must be some method, and we suggest that as a reasonable one. With respect to
amendments of the constitution, it is proposed that a law to amend the constitution
must be passed by an absolute majority of both the senate and the house of
40 representatives; that, if that is done, the proposed amendment must be submitted for
the opinion of the people of the states to be expressed in conventions elected for the
purpose, and that then if the amendment is approved by a majority of the conventions
in the states it shall become law, subject of course to the Queen's power of
disallowance. Otherwise the constitution might be amended, and by a few words the
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commonwealth turned into a republic, which is no part of the scheme proposed by

this bill.
END QUOTE
Again;
5 QUOTE
Otherwise the constitution might be amended, and by a few words the commonwealth
turned into a republic, which is no part of the scheme proposed by this bill.
END QUOTE
.
QUOTE Sir EDWARD BRADDON.-
consider the great amount of time, trouble, and expense it would take to make any
15 alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
20 .
QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
25 one of those instances which should make us very careful of following too slavishly the
provisions of the United States Constitution, or any other Constitution. No doubt in putting
together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
30 degree applicable. But it is for us to consider, looking at the history and reasons for these
provisions in the Constitution of the United States, whether they are in any way applicable;
and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of every word that we put in this Constitution, and that we should have no
word in it which we do not see some reason for. Because there can be no question that in
35 time to come, when this Constitution has to be interpreted, every word will be weighed and
an interpretation given to it; and by the use now of what I may describe as idle words which
we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
40 END QUOTE
.
QUOTE Mr. BARTON.
45 regard to Commonwealth citizenship, not having defined it, we may be enabling the
p 479 9-3-2009
p480
END QUOTE
.
QUOTE
5 Sir JOHN DOWNER.-
It is said we have sought to establish a Constitution by analogy to the House of Lords
and the House of Commons in England. But we know that there is no analogy, or, if
there were an analogy, we should have to consider what would be a very solemn and
serious question-whether we should have federation or a general amalgamation.
10 Mr. MOORE.-Unification.
Sir JOHN DOWNER.-I hate the word "unification," and will not use it. I have said
before that there is much to be said for amalgamation. I can understand that there
might be an immense amount of money saved by amalgamation in the way of carrying
on the government of the country, and there might be an immense amount of force
15 from the head of the Commonwealth which you cannot get from the partial
disintegration which is involved even in federation. But it is not our mission to
establish an amalgamation of these colonies. We are here under Bills passed by our
various colonies, and there is a claim for federation, and not a claim for merging the
colonies in one common concern.
20 END QUOTE
.
If therefore the Constitution didn’t allow for the Commonwealth of Australia to be turned into a
republic, which is nonsense in itself because it is not a State but a POLITICAL UNION and one
does not claim that the EU (European Union) is a republic then the term “sovereign parliament”
25 clearly is no longer applicable to any State (formally colony) and/or the Commonwealth of
Australia.
.
QUOTE Sir EDWARD BRADDON:
30 If the hon. member's amendment is to include the power of punishment it will scarcely be
necessary. The effect of the decision of the Privy Council to which my hon. friend has
alluded must be read in connection with the Constitutions of the several colonies, which
were affected at the time of the pronouncement of these decisions. In New South Wales,
and I think in Tasmania, what exists at the present time is a Legislature as distinct from a
35 Parliament. A Sovereign Parliament has punishing power. A Legislature which is created
by Act of Parliament, and with the equivalent powers conferred upon it, as they are
conferred by section 8, has, in the case of New South Wales and Tasmania, no power
except such as can be gathered from the necessary implication of the words of the
Constitution. In the present instance we have passed a clause which states that the [start
40 page 758] privileges, immunities, and powers of the Federal Parliament shall be those
declared by the Parliament, and until a declaratory Act is passed the privileges, immunities,
and powers of the House of Commons will be accepted. The power of punishment exists in
the House of Commons, and the same power would exist in the Parliament of the
Commonwealth under clause 8. An outrage committed within the walls of the Federal
45 Parliament could be punished in the same way as in the House of Commons. If a man
ventured to throw a stone into the Imperial Parliament, though unfortunately the thrower is
not always caught, it would be contempt of Parliament, and that would be a matter to be
p 480 9-3-2009
p481
dealt with by the Commons according to the powers, privileges, and immunities it
possesses.
END QUOTE
And
5 QUOTE
Mr. BARTON: It is the point to which I think the hon. member was anxious to come.
What we have done is to adopt a clause giving the Federal Parliament power to pass
Standing Orders for the con- [start page 759] duct of their business, and so that there should
be no doubt the power has been taken in the widest possible words. The House of
10 Commons does not make its Standing Orders by reason of its powers, privileges, and
immunities, but by virtue of its inherent powers as a sovereign Parliament. The Standing
Orders are for the internal regulation of the House of Commons, but my friend would like
to say that the Federal Houses may make Standing Orders for any matter it may deem
necessary. This would have the effect of passing laws without the royal assent. I ask my
15 friend if the clause as it stands is not sufficient.
END QUOTE
.
QUOTE
20 Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
same sense as a federal judge is, the same circumstances remain in part; but where
you will have a tribunal constantly charged with the maintenance of the Constitution
against the inroads which may be attempted to be made upon it by Parliament, then it
25 is essential that no judge shall have any temptation to act upon an unexpected
weakness-for we do not know exactly what they are when appointed-which may
result, whether consciously or not, in biasing his decisions in favor of movements
made by the Parliament which might be dangerous to the Constitution itself. My
friend Mr. O'Connor points out that the most important questions that may arise may be
30 those between the States and the Commonwealth, the validity of State laws, and the validity
of Commonwealth laws which may overlap or override them. Those very questions which
the Senate exists to prevent may be arising and embarrassing the Constitution. The Senate
will have to exercise its powers to prevent overlapping of that kind, but if it fails to exercise
its authority power must be present in the court to adjust matters. You may easily conceive
35 a case in which there might be a desire to reward a judge for past services, and with the
view that he may be insensibly influenced in regard to future cases. I do not think a judge
should have anything to expect in that way.
Clause as read agreed to.

END QUOTE
40 .
QUOTE
Mr. HIGGINS.-There might be a Bill passed decreeing that the honorable member (Sir
John Forrest) and his Ministry in Western Australia should be suspended by the neck until
45 they were dead. I am not sure that in that extreme case Her Majesty would refuse to give
her consent. I believe that with tears in her eyes and with much regret she would give her
consent to such a law. The consent of the Queen to an ordinary Act of Parliament is given,
p 481 9-3-2009
p482
very properly under constitutional government, almost as a matter of course. It is only in

those cases where there is any interference with the rights of states or with other British
subjects that there is ever a refusal to give assent.
END QUOTE
5 .
QUOTE
Mr. REID.-I do not wonder at the ejaculations which are evoked by such a phrase as "the
will of the people," and yet, in solemn truth, every line of every law we have got in this
10 country is written on the statute-book in and by the authority of the people of this country.
And, although that is a basic principle of our Constitution, we find that, on this occasion,
when an honorable member seeks to give even the States House a right to pass by the
House of Representatives and go straight to the people of the states, as well as of the nation,
under conditions [start page 762] which prevent a chance in the Constitution, unless a
15 majority of the states agree to it, objection is raised to the adoption of that course. Now, I
admit, considering the structure of this Constitution which permits of this reference to the
people, and which compels a reference to the people, that if there were no provision in this
clause that there should be a reference to the people, a very serious question would
concurrently arise, one of vital principle, a vital issue between the referendum and party
20 government, or what some think proper, constitutional government. If that question arose,
I confess I should have much greater respect from those who differ from me, but under this
particular clause that question does not arise, because the principle of the referendum is
already there, because the thing must go to the people on the clause as it at present
stands. Now, since that is so-since a law amending the Constitution can only come into
25 force after reference to the people, and if there is a national majority, and a majority of the
states-since that is the ultimate appeal and the safeguard provided against unfair or hasty
legislation, I say that there never was a more legitimate opportunity for members of this
Convention who do not believe in the referendum at all, but who see it here in this clause
END QUOTE
30 .
We must look at the Federal purpose intended by the Framers of the Constitution and how the
politicians/High Court of Australia abuses/misuses/manipulates it powers.
35
QUOTE Mr. ISAACS.-
Constitution,
END QUOTE
40 .
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been
45 made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
END QUOTE
p 482 9-3-2009
p483
.
QUOTE Captain RUSSELL:
Therefore, what we want is not the unification of Australasia, but a federation into
5 which all portions of Australasia may be drawn.
END QUOTE
.
As a CONSTITUTIONALIST I am concerned as to the misconception that appears to be
generated by the High Court of Australia regarding States powers, etc.
10 .
QUOTE Mr. DEAKIN.-
. In this Constitution, although much is written much remains unwritten,
15 END QUOTE
.
As a CONSTITUTIONALIST I have extensively researched the true intentions of the Framers
of the Constitution as to the unwritten part. The Framers of the Constitution were concerned that
the Constitution would be manipulated by lawyers far too much if more wording were to be used
20 and as such sought to narrow the usage of wording and by this force lawyers to take head of what
they debated as being the intention of the Framers of the Constitution! When after more then 100
years of Federation the judges of the High Court of Australia are still divided amongst the 7 of
them as to what the Constitution actually stands for then this in itself should be alarming.
.
QUOTE
We have been sent here by our various parliaments to frame a constitution under the
Crown-under the Crown, bear in mind. That is the idea which has been put forward in
30 every speech that has been made. I presume, then, that the members of the Convention are
prepared at once to give the go-by altogether to the idea of imperial federation. So long as
we remain in our present position as individual colonies, we are imperially federated,
and we can be imperially federated in no stronger manner than in connection with
our relation to the mother country. We are as much imperially federated as the people
35 living in the cities of London, Liverpool, Manchester, or other large centres of population.
We are a portion of the British Crown, joined together by the most solemn ties and
obligations; and we have to bear the brunt of any misfortune which may fall upon us
in connection with any attack upon our shores by reason of our enemies being the
common enemies of England. We have already made certain provision, partially of a
40 federal character, to assist the Imperial Government in the protection of our shores from
without; but let us set our faces as a young nation-if I may use the word "nation" in
advance-against standing armies; let us set our face once and for ever against the
creation of anything like a military despotism. We are met here under the Crown, and
I must say that, as one possessing a slight tinge of republican notions, as one who sees
45 that the future of Australia is to be what was prophesied of it fifty years ago, by poets
who have written of what the future of Australia is to be-having a certain tinge of
republicanism in my nature, the result naturally of my being a descendant of an
Englishman, I was surprised to find a gentleman occupying a position under the
Crown proposing what 100 years ago would have been simply regarded as high
p 483 9-3-2009
p484
treason. Why, the other day the hon. member, Mr. Munro, made a proposal with regard to
one phase of the question which made me ejaculate, "One strand of the painter has gone."
END QUOTE
.
5 Again;
QUOTE
Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the
10 same sense as a federal judge is, the same circumstances remain in part; but where
you will have a tribunal constantly charged with the maintenance of the Constitution
against the inroads which may be attempted to be made upon it by Parliament, then it
is essential that no judge shall have any temptation to act upon an unexpected
weakness-for we do not know exactly what they are when appointed-which may
15 result, whether consciously or not, in biasing his decisions in favor of movements
made by the Parliament which might be dangerous to the Constitution itself.
END QUOTE
.
In my view, the Queensland parliament purportedly having legislated that the Courts are under
20 the government would be an iunconstitutional inroad upon the separation of judicial powers and
cannot be with legal force. It would be UNCONSTITUTIONAL and so ULTRA VIRES.
.
A judiciary under a Constitutional form of Parliament/government can only exist if there is a
independent arbitrator and not one under either.
25 .
QUOTE
In the preamble honorable members will find that what we desire to do is to unite in one
30 indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we
35 are going to create under that Union. The second part of the preamble goes on to say that it
is expedient to make provision for the admission of other colonies into the Commonwealth.
40 END QUOTE
.
Because the Commonwealth of Australia was created as a POLITICAL UNION and not as an
INDEPENDENT COUNTRY it has no standing to be a member of the United nations. Forget
about the nonsense that somehow Billy Hughes as Prime Minister did get some declaration
45 because a Prime Minister is not above the Constitution and as such cannot single handily alter the
meaning and/or the application whatsoever.
.
QUOTE
p 484 9-3-2009
p485
question-and the Constitution gives it no power to legislate in regard to that question-the
5 for our schools," and thus they might wink at a violation of the Constitution, while no
provisions for the amendment of the Constitution? Why should we not say that the
10 people at all? Why not leave this matter to the Ministers of the day? But the proposal
END QUOTE
.
15 EITHER WE HAVE A CONSTITUTION OR WE DON’T
.
WHAT THEREFORE IS VERY CLEAR IS THAT THE COMMONWEALTH SEEKS
TOTAL CENTRALISED POWERS SO AS TO BE ABLE TO ROB YOU AND ME OF
ANY OF OUR PROPERTY RIGHTS.
20 .
After all as I have already extensively published in my previous books published in the
INSPECTOR-RIKATI® series about WATER, UN membership, etc, the commonwealth has
no powers in that regard. As the Framers of the Constitution made clear “external affairs” was
limited to the powers elsewhere given to the commonwealth in the constitution and not as like
25 the High Court of Australia in the Tasmania Dam case purported to include all kind of treaties.
The Commonwealth does however has constitutional legislative powers dealing with infra
structure of ports where it relates to navigational rivers Also, despite the Victorian Patrick
litigation disaster case the Commonwealth was given legislative powers as to waterside workers,
as the Framers of the constitution held that they should be under federal industrial relations laws.
30 As such, it must be clear that the Commonwealth has no conception of what its powers really are.
Anyone who has a stream running on his property that subsequently runs into a navigational river
then is prohibited to obstruct the water flow. Any taking of water is under Federal law of Section
100 of the Constitution. Any water that falls on the land however is the ownership of the
landholder.
35 .
What people therefore has to understand is that currently the terms of the constitution and so also
the embedded principles prevent the commonwealth to squander your and mine FEE SIMPLE
RIGHTS but if the so called INDEPENDENT NATION were to be accepted as a legal reality
then we all can be stripped of our FEE SIMPLE rights (common law rights to property and how
40 we can dispose of them) and then you may just discover to have robbed yourself and your
descendants of your financial security as well as of a secure place of abode.
.
HANSARD 27-1-1898 Constitution Convention
QUOTE
45 Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
END QUOTE
.
Then consider Hansard2-3-1898 Constitution Convention Debates;
50 QUOTE
p 485 9-3-2009
p486
The Constitution empowers the Federal Parliament to deal with certain external affairs,
among which would 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 the citizens of the Commonwealth, because the
5 Federal Government, in the exercise of its power, [start page 1753] could only act for
and on behalf of its citizens.
END QUOTE
.
Currently, the states themselves are not independent sovereignties because they are and remain to
10 be under the Crown of the United Kingdom. Thos who desire to have an independent country
may have to consider if it is worth it to be subjected to the United Nations AGENDA 21, that
seeks to rob us of our FEE SIMPLE rights.
.
15 QUOTE Mr. THYNNE:
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
20 legislatures, existing under the constitution.
END QUOTE
.
It is well overdue judges of the High Court of Australia came to understand that they do not and
never had any judicial powers to amend the Constitution!
25 .
QUOTE
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
the only laws which can apply are laws for the peace, order, and good government of
30 the commonwealth.
END QUOTE
.
The High Court of Australia already has sought to undermine this by declaring that the
Commonwealth is not restrained by the term “for peace, order and good government” as another
35 example of the tyranny it allows to be beset upon us.
.
More over, the High Court of Australia has even gone that far with its utter and sheer nonsense
as to state that, put it in my own words, the Commonwealth can legislate to have you or me put
to death without any trial! At least if you consider the following then it must be clear that this
40 statement is not dealing with DUE PROCESS OF LAW but that somehow the idiotic statement,
as I would describe it to be, from the High Court of Australia would allow babies put to death.
.
QUOTE 070520 posting
45 I am very disturbed to find the following of a quotation to have found this discussion;
QUOTE
p 486 9-3-2009
p487
of Magna Charta and the Bill of Rights as fundamental documents which control
governments, but they do not.
END QUOTE
5 And
QUOTE
likes. As it is said, some authorities could legislate to have every blue-eyed baby killed
if it wanted to.
10 END QUOTE
.
The US Supreme Court handed down its decision that the Magna Charta does apply to the US
Constitution.
15 Lets now consider what the High Court of Australia stated in;
Transcript of High Court Appeal
Essenberg v The Queen B55/1999 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA
20 Essenberg v The Queen B55/1999 (22 June 2000)

QUOTE
McHUGH J: But is not the problem you face that the Magna Carta and the Bill of
Rights of 1688 are not documents binding on Australian legislatures in the way the
Constitution is binding on those legislatures? Any legislature acting within the powers
25 allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta
and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern
Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta
which, I suppose, is really the heart of your argument, it is really more a statement of
political ideals. They are not constitutional documents in the sense that the Australian
30 Constitution and the United States Constitution are.
END QUOTE
.
Well, the US Supreme Court has (since the publication of my book on 30-9-2003,
INSPECTOR-RIKATI® on citizenship)) clearly ruled that the Magna Charta is applicable to
35 the US constitution. Now, lets see what the Framers of the Constitution stated during the
Constitution Convention Debates;
.
40 QUOTE
Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in
the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a
right of action for tort in certain cases, but I do not think that this extended right of action
has ever been given in any of the colonies. Conditions justifying actions for damages
45 against the Crown, however, are almost as frequent as actions for breach of contract. In
Canada a man sued the Crown for damages received in connexion with a railway accident,
but he was debarred of remedy there, although he suffered serious injury, because of some
defect in the railway laws not conceding this right. The position has been laid down in
regard to the Queen in the case I have already mentioned, that-
p 487 9-3-2009
p488
Where the land, or goods, or money, of a subject have found their way into the possession
of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot
be obtained, compensation in money; or when a claim arises out of a contract, as for goods
supplied to the Crown or to the public service-the Crown is bound to refer a petition of
5 right to the courts for decision, because it is provided by Magna Charta that justice
cannot be denied, sold, or delayed. By this action, similar rights of action are given to the
subject against the Crown in cases in which the subject can maintain a claim against
another subject.
END QUOTE
10 .
QUOTE Mr. DEAKIN.-
15 END QUOTE
.And
QUOTE Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
20 reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
intend to enter into any detailed examination of, or any elaborate apology for, the
25 Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this new Magna Charta for their acceptance and confirmation, and I
can conceive of nothing of greater magnitude in the whole history of the peoples of the
30 world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king.
This new charter is to be given by the people of Australia to themselves.
END QUOTE
.
35 Again;
QUOTE
the Crown is bound to refer a petition of right to the courts for decision, because it is
provided by Magna Charta that justice cannot be denied, sold, or delayed.
END QUOTE
40 .
Therefore it must be clear that the Framers of the Constitution held that the Magna Charta
applied to the Constitution and it is not for the judges to then seek to amend the Constitution by
their own judgment to deny this to be applicable.
.
45 As much as the Magna Charta is applicable likewise so the Bill of Rights.
.
There is however another disturbing element to what the judges stated;
.
p 488 9-3-2009
p489
Essenberg v The Queen B55/1999 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA
QUOTE
GUMMOW J: Now these words, "for peace, order and good government" are words of
5 expansion, not contraction, you see - they are not words of limitation.
McHUGH J: They do not limit the powers. In fact they arguably have no legal effect
whatever, and that is the doctrine of this Court. We do not make a decision as to whether
the law is for the peace, for the order, for the good government. It is assumed that if
Parliament makes it, it is, and the real question is, is it a law with the same respect to trade
10 and commerce in other countries or whatever the relevant law of Parliament relies on, but
this Court has never attempted to say that a law, on the subject of trade and commerce,
for example, is not "for peace, order and good government". It is, in effect, a
parliamentary expression rather than a legal expression. It does not limit Parliament's
power; it is said to expand them.
15 MR ESSENBERG: I am not really sure I understand that.
END QUOTE
.
Now lets see what the Framers of the Constitution stated, as set out more extensive in the
document “for the peace order and good government-1-Hansard.doc” in Chapter 034O
20
QUOTE
Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page
25 559] They are taken from the Federal Council Act of Australasia, and were inserted by
the imperial authorities after consideration and in substitution for more limited words that
were proposed by the Convention that met here in 1883. Finding those words there, and
considering that the powers of the federal parliament are only to make laws for the peace,
order, and good government of the commonwealth, it was thought perfectly safe to adopt
30 them.
Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for
a British port, say London, having a British register, until she actually arrives in
Great Britain, the laws of the commonwealth are binding upon her, and not the laws
of Great Britain?
35 Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for
the peace, order, and good government of the commonwealth, will apply to her on her
voyage. For instance, if it was necessary to send a prisoner to England, only such
provisions as are essential for the laws of the commonwealth outside the 3-mile limit
could possibly apply.
40 END QUOTE
And
QUOTE
the only laws which can apply are laws for the peace, order, and good government of
45 the commonwealth.
END QUOTE
.
p 489 9-3-2009
p490

QUOTE Mr. BARTON:
That was the Convention which had, I think, to be called in consequence of the New
5 Guinea affair. Sir Samuel went on:
Finding those words there, and considering that the powers of the Federal Parliament
are only to make laws for the peace, order, and good government of the
Commonwealth, it was thought perfectly safe to adopt them.
Sir Samuel Griffith's reply to that interjection was;
10 No; but laws of the Commonwealth, limited to laws for the peace, order, and good
government of the Commonwealth, will apply to her on her voyage. For instance, if it was
necessary to send a prisoner to England, only such provisions as are essential for the laws
of the Commonwealth outside the three-mile limit could possibly apply.
That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly
15 affect any law of the Imperial Parliament with which they may be in conflict, but so far as
they are not in conflict they will be applicable to a ship on her voyage for the preservation
of those laws of the Commonwealth which it is necessary to have enforced.
END QUOTE
.
QUOTE
Amendment suggested by the House of Assembly of Tasmania:
Omit the words "for the peace, order, and good government of the commonwealth,
25 lines 3, 4, and 5."
The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was
made in the legislature of Tasmania at the instance of the Hon. A.I. Clark. That gentleman
has furnished these reasons for the amendment, and, perhaps, in justice to him, I ought to
read them:
30 These words are copied from the several acts of the Imperial Parliament providing for the
establishment of legislatures in the various Australian colonies, and are perfectly
appropriate when used in reference to the establishment of the legislature which is to
possess plenary legislative powers, and have unlimited jurisdiction on all questions relating
to the protection of life and property, and the enforcement of contractual rights of every
35 kind; but it is very doubtful if they ought to find a place in connection with the definition
and delegation of limited legislative powers which do not include matters relating to the
daily protection of life and property, or to enforcement of private rights and obligations in
general. It is true that they find a place in the 91st section of the British North America Act,
which establishes a federal convention for Canada; but the primary object of that act is to
40 limit the powers and jurisdiction of the provincial legislatures, and to vest the residuum of
legislative authority in the Dominion of Canada in the federal parliament. The words in
question may, therefore, fitly find a place in that act, and they were relied upon in the case
of "The Attorney-General of Canada versus the Attorney-General of Ontario, which was
decided by the Privy Council last year[L.R.A.C. 1896] to uphold the act of the Dominion
45 Parliament, which had been challenged on the ground that it had encroached upon the
p 490 9-3-2009
p491
domain of the provincial legislatures. That decision, in its effect, appears to me to be, an
argument against the insertion of the words in question in connection with the definition
and delegation of the legislative powers of the parliament of the commonwealth, because
they might, in some unforeseen and unexpected controversy, afford ground for an
5 argument in favour of the jurisdiction of the parliament of the commonwealth in matters
which the several states might claim to be wholly within their own legislative powers. It
cannot be contended that they are required for the purpose of giving the parliament of the
commonwealth full power to legislate with regard to all the subjects mentioned in the sub-
sections of section 52; and, if they are not required for that purpose, they must inevitably
10 encourage the contention that they are inserted [start page 1037] for some additional
purpose. But, if their insertion in not intended to add in any way to the powers of
parliament, in relation to the matters mentioned in the sub-sections of section 52, then they
violate the canon of drafting, which requires that no unnecessary words should be used in
giving expression to the intention of the legislature. They are very properly inserted in
15 section 53, because that section confers upon the parliament of the commonwealth plenary
and exclusive powers in regard to the several matters mentioned in the sub-section of that
section. But their presence in section 52 tends to create a resemblance in the scope of the
powers conferred by the two sections, whereas it would be much more desirable to make
the difference in the purport of each section as apparent and emphatic as possible.
20 I have read these reasons through very carefully, and I have been unable to discover
that any of the evils which my hon. and learned friend, Mr. Clark, fears may be
expected from leaving these words as they are. The powers are powers of legislation
for the peace, order, and good government of the commonwealth in respect of the
matters specified. No construction in the world could confer any powers beyond the
25 ambit of those specified.
The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration of
the leader of the Convention the question whether the words which the legislature of
Tasmania have proposed to omit might not raise the question whether legislation of the
federal parliament was in every instance for the peace, order, and good government of
30 the commonwealth. Take, for instance, navigation laws. Might it not be contended that
certain navigation laws were not for the peace, order, and good government of the
commonwealth, and might there not be litigation upon the point? We are giving very full
powers to the parliament of the commonwealth, and might we not very well leave it to
them to decide whether their legislation was for the peace, order, and good
35 government of the commonwealth? Surely that is sufficient, without our saying
definitely that their legislation should be for the peace, order, and good government
of the commonwealth. I hope the leader of the Convention will give the matter full
consideration with a view to seeing whether these words are not surplusage, and whether,
therefore, they had better not be left out of the bill altogether.
40 The Hon. E. BARTON: The suggestion of the hon. member will be considered by the
Drafting Committee.
END QUOTE
.
45 Again;
QUOTE
Surely that is sufficient, without our saying definitely that their legislation should be
for the peace, order, and good government
p 491 9-3-2009
p492
END QUOTE
.
HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of
5 QUOTE
Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make
laws for the peace, order, and good government of the Commonwealth with respect to
a large number of matters that are set out. This is a power that is without limitation.
END QUOTE
10 .
It should be understood that while it was stated
This is a power that is without limitation.
It is within the limits of being for for the peace, order, and good government!
As such as long as it is within the scope of “for the peace, order, and good government” the
15 legislative powers is unlimited.

QUOTE Mr. DEAKIN.-
20 . In this Constitution, although much is written much remains unwritten,
END QUOTE
And
QUOTE Mr. DEAKIN.-
25 liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
30 intend to enter into any detailed examination of, or any elaborate apology for, the
35 can conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
40 END QUOTE
.
In my view judges such as Gummow J and McHugh J ought to have a retraining as to what is
constitutionally appropriate as I do not believe they have a clue what is applicable. Again, the
document “for the peace order and good government-1-Hansard.doc” has extensively set out
45 how it was being used, including some opposition and a submission from Tasmania to have it
taken out as there should be an unlimited power, but it was made clear, that unlimited power
would exist within the confines of laws being for the “order, peace and good government” and
in the end this was retained in the Constitution! I for one wonder how on earth judges of the
High Court of Australia do not comprehend this!
p 492 9-3-2009
p493
.
As a "CONSTITUTIONALIST" (not some lawyer who is brainwashed) I condemn any one, in
particularly judges, to undermine the constitutional system that exist in the POLITICAL
UNION being the Commonwealth of Australia.
5 The Commonwealth of Australia, as like the European Union, is created by Statue and
itself has no common law. Hence, any jury that were to be involved in federal hearings must be
drawn from a State.
Common law rights that exist are because of the colonies (now States) and passed on to the
Commonwealth when it was granted the listed legislative powers.
10 As author of the INSPECTOR-RIKATI® books in regard of constitutional and other matters I
have set out extensively how I succeeded and defeated Federal Government lawyers after a 5-
year legal battle on all constitutional issues I raised!
The Commonwealth of Australia Constitution Act 1900 (UK) was an act to create a
15 "POLITICAL UNION" and the States (colonies) who partly federated retaining all legislative
powers regarding "CIVIL RIGHTS" as it was their constitutions that were based upon the
provisions of the Magna Charta, Bill of Rights, Habeas corpus, etc.
the States however have no free hand in destroying COMMON LAW rights such as FEE
SIMPLE, the following will also make clear that the Framers of the Constitution intended to
20 have CIVIL RIGHTS and LIBERTIES principles embedded in the Constitution;
QUOTE Mr. CLARK.-
25 citizen is entitled to claim that the federal government shall take under its protection and
secure to him.
END QUOTE
.
Therefore, while the commonwealth itself was not given any legislative powers as to deal with
30 COMMON LAW rights such as FEE SIMPLE it was however given the right to protect
citizens against any State that were to pursue a removal or intrusion into FEE SIMPLE common
law rights, as they are fundamental rights and liberties of the Magna Charta.
.
Also consider;
35 Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95 Criminal
Law and Procedure - Statutes - Human Rights - Telecommunications - Law Reform [1995]
NSWSC 154 (14 November 1995)
QUOTE
"It is well established that the Court should not impute to the legislature an intention to
40 interfere with fundamental rights, freedoms or immunities; such an intention must be
clearly manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15;
(1994) 179 CLR 427 at 436-437. ... The close link between the fundamental right to be
secure against trespass and the right to privacy is illustrated by the observations by Lord
Scarman in Morris v Beardmore (1981) AC 446 ... Parliament itself has ... recognised, in
45 the context of telecommunications, the fundamental importance of protecting individual
privacy, although also recognising that the value of privacy can be over-ridden where it
conflicts with other significant community values, provided that detailed safeguards are
observed. The recognition and protection of privacy in the Intercept Act, in my view,
justifies a restrictive approach to the construction of the statutory exceptions to the
50 prohibitions on interception. ... where there is a genuine doubt as to whether the statutory
p 493 9-3-2009
p494
language authorises the use of intercept information for a particular purpose, that doubt
should be resolved in favour of a narrow, rather than a broad construction of the statutory
authorisation."
END QUOTE
5 .
For this it must be obvious that there has been an ongoing manipulation by politicians and judges
of the High Court of Australia alike, after all the judges are appointed as recommended by the
Government of the Day, and so those who aligning more closely with the Government of the Day
more then likely be appointed as to slowly undermine the principles embedded in the
10 Constitution by statements such as about every blue eyed babies being killed by order of
legislation, then we the People must ensure that this agenda is not completed. We the People are
the owners of the Constitution!
.
Again;
15 .
QUOTE Mr. DEAKIN.-
20 END QUOTE
And
QUOTE Mr. DEAKIN.-
25 reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
30 Constitution which we have been engaged in framing. But, sir, no man can remain
35 world than this question upon which we are about to invite the peoples of Australia to
.
40
.
In the Commonwealth of Australia, judges are appointed to the High Court of Australia
regardless lacking any competence in constitutional matters, in fact they may never have
practiced in constitutional matters, and in one incident a judge actually refused to hand down a
45 judgment other then to state he didn't have any knowledge in the constitutional matter before the
court and for this would abstain from handing down a judgment.
.
QUOTE Mr. THYNNE:
p 494 9-3-2009
p495
The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
are the complete legislative power of the whole of these colonies, and they shall be so.
From [start page 106] them will rise, first of all, the federal constitution which we are
5 proposing to establish, and in the next place will come the legislative powers of the several
colonies. The people will be the authority above and beyond the separate legislatures,
and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
states, they will be charged with the full power and dignity of the state, and it is from them
10 that we must seek the giving to each of those bodies that will be in existence concurrently
the necessary powers for their proper management and existence. Each assembly, each
legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst
within the authority conferred upon it by the constitution, but invalid and
15 unconstitutional if they go beyond the limits of such authority.
END QUOTE
.
QUOTE
20 Mr. CARRUTHERS:
to understand.
END QUOTE
.
25 Again the utter and sheer nonsense;
QUOTE
of Magna Carta and the Bill of Rights as fundamental documents which control
30 governments, but they do not.
END QUOTE
And
QUOTE McHugh J;
35 likes. As it is said, some authorities could legislate to have every blue-eyed baby killed
if it wanted to.
END QUOTE
.
Therefore, if we already have judges of the High Court of Australia talking about this kind of
40 nonsense contrary to what the constitution stands for then one has to be extremely concerned as
to what else they have installed if they can get with what I consider treasonous conduct?
.
The issues are far reaching as to change the status from POLITICAL UNION to a republic and
the now leader of the Opposition Malcolm Turnbull did however not reveal this when he was
45 pushing for a REPUBLIC. One ought to ask; Why not? Neither did the monarchist reveal
anything of this either. As such both parties were out for their own hidden agenda but not the
least concerned about what is in the peoples interest.
.
50 QUOTE
p 495 9-3-2009
p496
Mr. DEAKIN.- In this Constitution, although much is written much remains

unwritten,
END QUOTE
And
5 QUOTE Mr. DEAKIN.-
10 whom it will embrace and unite.
END QUOTE
And
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about
15 to commit to the people of Australia a new charter of union and liberty; we are about
to commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
20 new charter is to be given by the people of Australia to themselves.
END QUOTE
And
QUOTE
Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
25 as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making
30 a Constitution of this kind, enable any Government or any Parliament to twist or
infringe its provisions, then by slow degrees you may have that Constitution-if not
altered in terms-so whittled away in operation that the guarantees of freedom which
it gives your people will not be maintained; and so, in the highest sense, the court you
are creating here, which is to be the final interpreter of that Constitution, will be such a
35 tribunal as will preserve the popular liberty in all these regards, and will prevent,
states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
.
QUOTE
Mr. WISE (New South Wales).-The only class of cases contemplated by this section
are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
45 which the criminal law of the state was in conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
50 the trial of criminal offences, and I do not at all view with the same apprehension that
p 496 9-3-2009
p497
possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
be that a law passed by the Federal Parliament was so counter to the popular feeling of a
particular state, and so calculated to injure the interests of that state, that it would become
5 the duty of every citizen to exercise his practical power of nullification of that law by
refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
method which has never been known to fail, if the law itself was originally unjust. I
think it is a measure of protection to the states and to the citizens of the states which should
10 be preserved, and that the Federal Government should not have the power to interfere and
prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
END QUOTE
.
15 Therefore the right of the courts and so the public as juries to nullify laws is embedded in the
Constitution where the jury holds that the law is unjust.
.
"The jury has a right to judge both the law as well as the fact in controversy." -John Jay, 1st Chief
20 Justice United States supreme Court, 1789
"The jury has the right to determine both the law and the facts." -Samuel Chase, U.S. supreme
Court Justice, 1796, Signer of the unanimous Declaration
The jury has the power to bring a verdict in the teeth of both law and fact." -Oliver Wendell
Holmes, U.S. supreme Court Justice, 1902
25 "The law itself is on trial quite as much as the cause which is to be decided." -Harlan F. Stone,
12th Chief Justice U.S. supreme Court, 1941
"The pages of history shine on instance of the jury's exercise of its prerogative to disregard
instructions of the judge..." -U.S.vs Dougherty, 473 F 2nd 113, 1139, (1972)
"You have a right to take upon yourselves to judge of both, and to determine the law as well as the
30 fact in controversy." -(State of Georgia vs. Brailsford, et al, 3 Dall 1)
"The JURY has an unreviewable and unreversible power...to aquit in disregard of the instructions
on the law given by the trial judge..." -U.S.vs Dougherty, 473 F 2nd 1113, 1139, (1972)
"The opinion which gives to the judges the right to decide what laws are constitutional and what
not, not only for themselves in their own sphere of action, but for the legislative and
35 executive also in their spheres, would make the judiciary a despotic branch." -Thomas
Jefferson
.
40 In the Abbott case the Supreme Court of Victoria sought to deny the application of
NULLIFICATION, yet every day magistrates and at times juries do dismiss charges regardless
of the evidence showing a guilt because it is held that in the circumstances no conviction should
take place.
.
45 It is a legal process that existed in the colonies prior to federation and found its way into the
constitution by being embedded in the Constitution as a principle and no Parliament or court can
deny this. No jury can be forced to hand down a finding of GUILTY where it refuses to do so.
Regardless of the power hungry judges seeking to dictate juries that they can only decide upon
facts and not law, constitutionally it is clearly embedded that the juries can decide on both
50 FACTS and on LAW. As such each and every time a judge instructs a jury otherwise he/she
p 497 9-3-2009
p498
effectively himself/herself is in contempt of Court by deceiving the jury as to their rights.

Obviously, judges would not want to see juries not to convict people who are deemed in breach
of unjust laws as then they can manipulate further the removal of COMMON LAW rights such
as FEE SIMPLE.
5 .
What must be clear is that the Framers of the Constitution did more then just provide a written
Constitution as they were smart enough to embed in the Constitution legal principles of
fundamental rights and other civil rights that could not be removed by amending the Constitution
unless the Parliament specifically asked the electors to remove all fundamental rights and civil
10 right by approving a referendum for this. I think they would have, so to say, hope in hell for this
and so they have embarked upon a comprehensive scheme to circumvent the constitutional
constrains by p having judges accepting a substitute constitution using the Australia Act 1986
regardless that none of it has any constitutional value and as such has no legal force.
.
15 How do I know you may ask? Well, I took the Crown to task by placing it all before the courts
and the County Court of Victoria upheld each and every submission without reservation by
ruling in my favour against the Crown, without any of the Crowns lawyers (State and/or federal)
having made any attempt to challenge the numerous issues I had raised in the Section 78B
NOTICE OF CONSTITUTIONAL MATTERS. As such, all the Crowns lawyers were
20 defeated comprehensively and being it VCAT, magistrates or other tribunal/courts they all have
to accept the decision being one of a legal decision where there is a DIRECT and
COLLATERAL ESTOPPEL against the Crown.
.
Even in Wakim HCA 27 of 1999 the High Court of Australia made clear that albeit there can be
25 no estoppel against the constitution on the other hand the parties cannot re-litigate the same
issues again. As such the Crown is permanently bound by the Courts ruling where it never even
made any attempt to appeal the ruling because after all, they had not presented any material
before the court for it to adjudicate upon any conflict in submissions.
The Crown (in right of the States and in rights of the Commonwealth) did not take the
30 opportunity to challenge my submissions while it had been given the opportunity since 2002 to
do so and by this in the 5-year legal battle was comprehensively defeated.
.
This included that the Commonwealth is not a country but a POLITICAL UNION and that the
United Nations has no power to override the Constitution.
35 .
It therefore should be clear that no matter what the Commonwealth may agree upon with the
United nations it is not relevant to us as we are not bound by it.
.
It cannot legislate as to subjects of property laws, COMMON LAW rights such as FEE
40 SIMPLE because it may have made some treaty with the UN as in the first place it has no legal
standing to be a member of the UN regardless of its claim to be a founding member, and it
cannot obtain legislative powers that specifically was denied by the Framers of the Constitution.
.
As I placed before the Court and neither challenged by the Crown, that the 2001 and 2004 federal
45 elections were ULTRA VIRES and so NULL AND VOID as it failed to comply with
constitutional requirements, and hence for this also I was not required and neither could vote. As
the Court upheld my cases against the Crown then effectively there was no validly elected
Members of Parliament either and so Ministers of the Crown after their three month
appointments no longer validly could hold their appointment as Ministers.
50 .
p 498 9-3-2009
p499
Further, the Framers of the Constitution made clear that all parliaments upon federation would
become “CONSTITUTIONAL PARLIAMENT” and no longer could amend their own
constitutions without a State referendum.
.
QUOTE
10 no longer supreme. Our parliaments at present are not only legislative, but
15 instead of parliament being supreme, the parliaments of a federation are coordinate
20 sole arbiter and interpreter of the constitution.
QUOTE
.
Referendum results
3 September 1988
25
Question 3
A Proposed Law: To alter the Constitution to recognise local government.
30 Do you approve this proposed alteration?
The Constitution recognises government at the Commonwealth and State levels but makes no mention of local
government. Constitution Alteration (Local Government) 1988 sought to give such constitutional recognition to local
government.
Result
35 State Number on Ballot papers For Against
Informal
Rolls issued % %
New South 3 564 856 3 297 246 1 033 364 31.70 2 226 529 68.30 37 353
Wales
40
Victoria 2 697 096 2 491 183 882 020 36.06 1 563 957 63.94 45 206
Queensland 1 693 247 1 542 293 586 942 38.31 945 333 61.69 10 018
45 South 937 974 873 511 256 421 29.85 602 499 70.15 14 591
Australia
p 499 9-3-2009
p500
Western 926 636 845 209 247 830 29.76 584 863 70.24 12 516
Australia
Tasmania 302 324 282 785 76 707 27.50 202 214 72.50 3 864
5
Australian 166 131 149 128 58 755 39.78 88 945 60.22 1 428
Capital
Territory
10 Northern 74 695 56 370 21 449 38.80 33 826 61.20 1 095

Territory
---------------------------------------------------------------------------------------------------------------------
Total for 10 362 959 9 537 725 3 163 488 33.61 6 248 166 66.39 126
071
15 Commonwealth
Obtained majority in no State and an overall minority of 3 084 678 votes.
Not carried
20
.
At the time of federation “Local Government” was the “State Government” and the “Central
Government” being the “Federal Government”.
25 .
The three levels of Government existing being;
1. United Kingdom Parliament
2. The colonial Parliament for the legislative powers they retained and the Commonwealth
as a separate parliament for the legislative powers it was provided with.
30 .
.
Versus
.
35 STATE GOVERNMENT/LOCAL GOVERNMENT
.
Versus
.
MUNICIPAL COUNILS/LOCAL GOVERNMENT
40 .
GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
45 with a “STATE PARLIAMENT”.
.
p 500 9-3-2009
p501
of Government.
.
Governments.
15 Government.
is and remains to be a constitutional powers reserved for the State Parliaments. See also Hansard
20 2-3-1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so
far it purports to define/declare “CITIZENSHIP” is ULTRA VIRES.
25 government would not be able to deal with this appropriately. Why you may ask? Because
“CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
30 interested can always read my various books published in the INSPECTOR-RIKATI® series.
The usage of the term “local government” during the Constitution Convention Debates were

35
The Federal Government cannot have it both ways, argue it has constitutional rights to
doesn’t suit it.
40 What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as
45 (judgments) while those politicians in the Parliament know next to nothing as to what is
constitutionally permissible or not.
50 do not comprehend how matters are constitutionally then what are they talking about?
p 501 9-3-2009
p502
Please note the comments below, including an e-mail to Mr. Kevin Rudd.

5 .
QUOTE Mr. DEAKIN.-
I believe, by the Bill which will shortly grant Western Australia the local government
which all Australasia has long wished her, to confine the new colony to the territory south
10 of the 26th parallel, while the territory north of that is to be governed by Western Australia
under the control of Ministers in England.
END QUOTE
And
QUOTE Mr. DEAKIN.-
15 With regard to work which might be better done by a Federal Government than by the
separate Governments of the colonies, it is questioned whether, when the Convention
comes to consider all the issues raised (which I do not enter into), it will not be decided that
the larger part of the work should be left to the local Governments. It is argued that public
works, for instance, would be more satisfactorily carried out by the local Governments
20 than by a Government more removed.
END QUOTE
And
QUOTE Mr. DEAKIN.-
But what is clearer is, that the great cable and mail lines between this continent and the old
25 world would inevitably pass under the control of the Federal Government. There is one
land line already across the continent of Australia, which it might be necessary to hand over
to the Central Government, And there is a cable projected towards North America, which
will greatly affect the interests of the inhabitants of Australasia and the Pacific islands and
our countrymen across the sea.
30 END QUOTE
And
END QUOTE Mr. DEAKIN
Leaving these details, which I have only ventured to touch upon in a fragmentary way, and
sympathizing with the strong stand made by Mr. Playford on the supposition that the
35 powers and privileges of the different local Governments were to be assailed, and being as
prepared as he is to do my utmost in their defence, I believe that we would act idly unless
we admitted from the first that in the creation of a Federal Legislature and a Federal
Executive we meant them to be the organs of a Sovereign state-a state which would not be
a figment or shadow, nor exist only on the sufferance of the local Parliaments, but which
40 would draw its authority straight from the people of the different colonies, obtaining from
them the plenary powers to be exercised by it within certain limits. The great lesson taught
by Mr. Bryce in his magnificent work is that the strength of the United States Government
lies in this, that although it is a Federal Government, under which each State of the Union is
theoretically and actually independent in respect to all concerns of local life and
45 legislation, it has nevertheless sovereign authority in that it is gifted with powers which act
directly and immediately on every citizen of the entire country. It is not dependent on any
state for one cent of its revenue, nor upon state officers for any act of administration , nor
upon State Courts for any decision in its favour. Except that the state legislators elect the
members of the Senate there is no connexion between the states and their Central
50 Government. The Union is not concerned to have their support, nor does it seek their aid
p 502 9-3-2009
p503
for the forces it maintains. It is a Sovereign state acting directly, without any
intermediary, upon the citizens from which it springs. (Hear, hear.) I am glad that view
is concurred with. I am glad to think that we shall see a Sovereign state in Australasia
which will be able to act directly through its judiciary, and in other ways, on every citizen
5 within its borders, and be in every respect and in all its powers the equal of any state in the
world. Were we to aim at crippling, maiming, or enfeebling the local Legislatures, we
would aim at doing something not only wholly unnecessary for our purpose, but something
which would actually injure the Federal Government we are seeking to establish. There
should be and must be nothing antagonistic between a Federal Government supreme in its
10 sphere and local Governments supreme in their spheres. It is perfectly true that there must
be a division of authority, that some of the powers of the local Governments will have to be
transferred to the Federal Government, but the judges of the powers to be given to either
body must not be either the local Governments with their jealousies, or the Central
Government with its ambitions. The judgment must come from those whom both exist only
15 to serve-from the people themselves. So far both the local and central authorities must
be regarded as on the same platform, because as it is in the national interest that there
should be a differentiation of the powers of Government into central and local
Governments so in settling that division only national interests ought to be considered.
What we have to study is how to give the central authority all the powers which can be best
20 exercised by such a body to the distinct advantage of the whole of the people. Those
powers it ought to have; but it is not to be [start page 27] entitled to acquire them in such a
way as would enfeeble the different local Governments, on whose healthy life its
successful existence must largely depend. As well might it be attempted to enfeeble
municipal institutions in order to aggrandize Parliament, the fact being that parliamentary
25 Government depends very much for its smooth and easy working upon the smooth and easy
working of the minor local bodies. There are an infinite number of issues which no
central Parliament could deal with, but which necessarily belong to the local
Legislatures, and which they should be able to deal with in the present manner. For my
part, I think we should seek to strengthen the local Legislatures by every possible means.
30 We should, as Mr. Playford says, leave them every power it is possible for them to exercise
in the interests of the whole community. If more power can be given them for that purpose
than is conceded elsewhere, let it be granted, but let us give the Central Government just
as emphatically a full and unfettered power so far as the interests of the whole people
demand it.
35 END QUOTE
.
QUOTE
Mr. PLAYFORD: And that it would be given back to the various local governments in
40 proportion to the population of their respective colonies. If we consider for a moment that
the federal government must have an executive, and will have to provide the necessary
payment for the federal forces, for the federal executive, and for various other matters, we
must see that they will have to derive a revenue in some way or other; and the most
difficult question, I think, which the members of the Convention will find, when they come
45 to deal with it, will be the adjustment of that financial part of, if I may so call it, the trouble
between the federal government on the one hand, and the local governments on the
other. It may be necessary that, in certain instances, we should be paid back by the federal
government a proportion of the money that we, as local governments, derive from
customs. The
50 END QUOTE
p 503 9-3-2009
p504
.
QUOTE Mr. DEAKIN.-
Now, a few words as to the bounties. The Federal Parliament, representing the federal
5 people, will be as sensitive to the appeals of the people for assistance as any local
Parliament has been. The great federal industries of Australia-fruit-growing, dairying,
agriculture, and horticulture-will be no less an object of concern to representatives in the
Federal Parliament than they have been to representatives in the various local Parliaments
indeed, the improved circumstances and more independent position of the Federal
10 Government will allow them to deal with the development of these industries with a more
liberal hand than the local Governments can deal with them.
END QUOTE
And
QUOTE
15 Mr. TRENWITH.-
We find, within the area of our state Legislatures, that we have local interests continually
presented to Parliament from various parts of the respective states. In Victoria we have a
most complete system of local government, under which particular localities legislate for
their local requirements, and manage very largely their local concerns in regard to roads
20 and bridges, and so forth. They are continually coming to Parliament asking for some
special concessions. Very often these special concessions involve the expenditure of large
sums from the general revenue, but yet we find that whenever these requests are made they
are almost invariably passed with the greatest possible rapidity. Parliament is always
inclined to act generously to sections of the community over which it has to govern, and we
25 have a right to assume that when we have created a Federal Parliament, and local
considerations from any of the states are submitted to it, it will treat them in much the
same manner as the state Parliament treats matters from municipal councils within
the area of their government now.
END QUOTE
30 Again;
QUOTE
Parliament is always inclined to act generously to sections of the community over which it
has to govern, and we have a right to assume that when we have created a Federal
Parliament, and local considerations from any of the states are submitted to it, it will
35 treat them in much the same manner as the state Parliament treats matters from
municipal councils within the area of their government now.
END QUOTE
.
QUOTE
Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne and
Metropolitan Board of Works praying that the Convention would preserve the right of the
Queen's Australian subjects to appeal to the Privy Council, and moved that it be received
45 and read.
The motion was agreed to.
The CLERK read the petition, as follows:-
p 504 9-3-2009
p505
To the Right Honorable the President and the Members of the Australasian Federal
Convention, in session assembled.
The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That
your petitioner is a body corporate created by Act of the Parliament of Victoria, composed
5 of representatives elected by the councils of the city of Melbourne and the municipal
councils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said
colony, which comprises an area of about 160 square miles, with a population of more than
451,000, who will be responsible for rates to be levied by your petitioner.
That the principal duties assigned to your petitioner are to manage and extend the water
10 supply of the said metropolis, and to undertake the sewering and draining thereof.
That in relation to the former of the said duties your petitioner is charged with liability
to the Government of Victoria for a sum of £2,359,156, the balance of money lent for
construction of the waterworks by creditors who are mostly resident in Great Britain. And
for extension of the said works, and to sewer and drain the metropolis, your petitioner has
15 borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in
the United Kingdom.
END QUOTE
.
As such the second level is divided between State and Commonwealth legislative powers and
20 only one can have legislative powers as the moment the Commonwealth exercised its legislative
powers the States no longer could do so, not even amend their existing legislation. Neither
would this be needed because by the Constitution any conflict of legislation would be for the
State legislation to be the loser.
What however never seemed to have been understood was that for federal purposes colonial
25 legislation would not be defeated by Commonwealth legislation but the commonwealth would be
bound to legislate as not to diminish the rights of citizens they had under colonial legislation.
Hence, the Framers of the Constitution devised Section 41 that allowed State’s to amend their
own internal legislation and where this was done under the federal compact, women who not
previously had franchise rights would by the State providing for this attain instantly the right
30 within Section 41 in the Federal level.
.
Where “MUNICIPAL COUNCILS” are not recognised by the Constitution and a referendum
for this failed then without State referendums no municipal council can claim so called “Local
Government” powers because not even the 1902 amendment of the NSW Constitution to provide
35 for “Local Government” (meaning municipal council by-laws, etc.) was approved by the lectors
of the State of NSW because no State referendum was held for this.
I am not aware any state actually had its Constitution amended as such by approval of the state
electors by State referendum and as such I view that all and any municipal council by-laws are
unconstitutional and by this ULTRA VIRES and so likewise its trespass upon how a person who
40 has FEE SIMPLE does with its property. In my view, any court seeking to enforce any decision
made by a so called local council would be of no legal force.
.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to
45 tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
Indeed, the principle is often stated, in broad and sweeping language, that fraud destroys
p 505 9-3-2009
p506
And
5 of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land,
The general rule is that an unconstitutional statute, though having the form and name
10 unconstitutionality dates from the time of its enactment, and not merely from the date
purports to settle just as it would be had the statute not been enacted.
15 duties, confers no rights, creates no office, bestows no power or authority on anyone,
operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the
20 No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
.
25 35 "Common expressions such as: 'The Courts have declared a statute invalid'," says Chief
Justice Latham,
QUOTE
"sometimes lead to misunderstanding. A pretended law made in excess of
30 disregard it. Naturally, he will feel safer if he has a decision of a court in his favor, but
valid
40 until a court pronounces against it - and thereafter invalid. If it is beyond power it is
invalid
35 ab initio."
END QUOTE
.
(See also Folder 28 re Residual Assco Group v Spalvins & Ors A5/2000 (11 May 2000) High
Court of Australia Transcripts)
40 .
In HCA 27 of 1999 Wakim;
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte

Amann; Spi [1999] HCA 27 (17 June 1999)
QUOTE
45 Re Brown & Ors; Ex Parte Amann & Anor
1. So far as Mr Amann is concerned, I agree with Gummow and Hayne JJ that there is no
basis upon which this Court can properly refuse to issue a writ of prohibition. I am unable
to agree, however, that the Court should refuse prohibition to Mr Gould either on
p 506 9-3-2009
p507
discretionary grounds or by reason of res judicata or issue estoppel. Those doctrines are
common law doctrines. As this Court made plain in Lange v Australian Broadcasting
Corporation[98], the common law cannot be at odds with the Constitution and must
conform with it. Notwithstanding our decision in Gould v Brown[99], which concerned
5 Mr Gould, the Court is now, by a substantial majority, of the opinion that the
Corporations Act 1989 and the Corporations (New South Wales) Act 1990 cannot
constitutionally invest State judicial power in the Federal Court of Australia. The orders
made in Gould v Brown have no constitutional effect. For constitutional purposes,
they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the
10 Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown.
No doubt, as Latham CJ said of invalid legislation[100], "he will feel safer if he has a
decision of a court in his favour". That is because those relying on the earlier
decision may seek to enforce it against Mr Gould.
2. Where a litigant has unsuccessfully challenged a legislative provision on constitutional
15 grounds and a later decision reverses the earlier holding, the Court has the discretion
whether to extend time to allow the litigant once again to challenge the legislation.
Ordinarily in those circumstances, the discretion should be exercised in favour of the
citizen. Cases may arise where it is unfair to the defendant to allow a fresh challenge to
occur having regard to the lapse of time and a change of circumstances on the part of the
20 defedant. But such matters are not decisive in the present case. Furthermore, the liberty of
Mr Gould is involved. And it would be incongruous for the Court to quash orders against
Mr Amann but not against his fellow director, Mr Gould.
END QUOTE
.
25 CCV-No CR-05-02140 of 2005 No S02604146 15-11-2006 Page 36
QUOTE:- Gaudron J (Wakim, HCA27\99)
“..However, the judiciary has no power to amend or modernize the Constitution to
give
effect to what Judges think is in the best public interest. The function of the judiciary,
30 including the function of this Court, is to give effect to the intention of the makers of
the
Constitution as evinced by the terms in which they expressed that intention. That
5 necessarily means that decisions, taken almost a century ago by people long dead, bind
the people of Australia today even in cases where most people agree that those decisions
35 are out of touch with the present needs of Australian society.”
END QUOTE Gaudron J (Wakim, HCA27\99)
And
QUOTE Gaudron J (Wakim, HCA27\99)
":.. The starting point for a principled interpretation of the Constitution is the search for
40 10 the intention of its makers"
END QUOTE Gaudron J (Wakim, HCA27\99)
.
Scuderi v Morris [2001] VSCA 190 (29 October 2001 (Folder 1)
QUOTE
45 In order to resolve this appeal and to determine the relevant principles, we have had to
look at a considerable number of additional reported decisions as well as a variety of
text books, many of which we have had to find for ourselves with the invaluable assistance
of the researchers engaged by the Court.
END QUOTE
p 507 9-3-2009
p508
.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979)
QUOTE
Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and
5 Webb J. said that "it is a deep-rooted principle of the law that before anyone can be
punished or prejudiced in his person or property by any judicial or quasi-judicial
proceeding
he must be afforded an adequate opportunity of being heard."
END QUOTE
10 .
Therefore, any tribunal/court that intends to canvass the issue of FEE SIMPLE has to observe
the 19 July 2006 ruling by the County Court of Victoria and its implications. Because the Court
albeit having issued orders that the cases were upheld did not and in fact refused to issue a
REASON OF JUDGMENT. Obviously because of the numerous constitutional issues raised by
15 me then before the court, being a potential a so to say time bomb. Nevertheless the case itself,
involving all material that was filed before the Court was in fact published on 6-7-2006 in the
book titled;
.

20 A book on CD on Australians political, religious & other rights
.
Hence for the Reader to become aware what was before the Court the Reader can consult copies
held in libraries such as the National Library of Australia at Canberra and the State Library of
25 Victoria, where the Reader doesn’t wish to purchase a copy from the publisher.
.
Therefore, before any tribunal/court deals with enforcement of purported laws/by-laws it must
then first address the issue of JURISDICTION as if it has no valid law/by-law to be enforced
then the tribunal/court cannot invoke jurisdiction either.
30 .
Constitutionally “Local Government” being “Municipal Councils” do not exist and as such their
by-laws are in my view a NULLITY and have no legal status to be enforced and as such I view
anyone can disregard them and no court can invoke jurisdiction to enforce them.
.
35 There is no level of “Local Government” within the Constitution (Federation) that provides for
Municipal council legislation as such.
.
EITHER WE HAVE A CONSTITUTION OR WE DON”T
.
40 PLEASE NOTE; Further matters regarding State constitutions will be raised below after dealing
first with the sovereignty of States versus Commonwealth.
.
As for the native title issue, etc we may consider the following and realise that while New
Zealand’s representative Capt Russel did acknowledge that New Zealand had dealt with native
45 title he was concerned that Australian colonies did not do so and this may be an issue to New
Zealand when federating as to the Federal government being able to manage issues regarding the
“Aboriginals” (Maori’s) in new Zealand.
.
p 508 9-3-2009
p509

QUOTE Mr. DIBBS:
We, in Australia-federated Australia, I may take it, because the matter is one which
5 applies to the whole-have no enemies within our borders; we have no Indians to
dispute with us the possession of the soil; we have no powerful Maori race, to fight, as
was once the case in New Zealand, for the territory the right to which belonged to the
Maoris themselves.
END QUOTE
10 And
QUOTE Mr. DIBBS:
All we want to do is to make every man who is either a native of the soil, or one of
ourselves by reason of his taking up his residence amongst us, prepare to resist
possible invasion from without.
15 END QUOTE
.
QUOTE Sir SAMUEL GRIFFITH:
20 Of course it is necessary for the purposes of the commonwealth that it should have the
control over all means of communication. Another provision to which I desire to call
special attention is No. 30, which reads thus:
The exercise within the commonwealth, at the request or with the concurrence of the
parliaments of all the states concerned, of any legislative powers with respect to the affairs
25 of the territory of the commonwealth, or any part of it, which can at the date of the
establishment of this constitution be exercised only by the Parliament of the United
Kingdom or by the Federal Council of Australasia, but always subject to the provisions of
this constitution.
We are aware, sir, that there are many things now upon which the legislatures and
30 governments of the several Australian colonies may agree, and upon which they may desire
to see a law established; but we are obliged, if we want that law made, to go to the
Parliament of the United Kingdom, and ask them to be good enough to make the law for us;
and when it is made we will obey it. I contend, for myself, as I have had an opportunity of
saying before, that after the federal parliament is established anything which the
35 legislatures of Australia want done in the way of legislation should be done within
Australia, and then parliament of the commonwealth should have that power. It is not
proposed by this provision to enable the parliament of the commonwealth to interfere
with the state legislatures; but only, when the state legislatures agree in requesting such
legislation, to pass it, so that there shall be no longer any necessity to have recourse to a
40 parliament beyond our own shores when once this constitution has been passed by the
Parliament of the United Kingdom. With respect to these subjects, it is not proposed to
give the parliament of the commonwealth exclusive jurisdiction; they will have
paramount jurisdiction; but it is proposed that, until they exercise those powers, the
existing laws shall remain [start page 525] in force, and that, until they choose to make
45 laws to the contrary, the state legislatures may go on exercising their existing powers.
It is only when the federal parliament comes to the conclusion that it is necessary to make
laws on those matters that the powers of the states will be excluded, and then only to the
extent to which the federal legislature chooses to exercise its functions. In addition to the
p 509 9-3-2009
p510
powers to be exercised in that way, not interfering with the existing rights of states until the
federal legislature thinks it necessary to do so, it is proposed to give some exclusive powers
to the legislature of the commonwealth. One of them is to deal with the affairs of people of
any race with respect to whom it is deemed necessary to make special laws not applicable
5 to the general community; but so that this power shall not extend to authorise
legislation with respect to the aboriginal native race in Australia and the Maori race
in New Zealand.
I am sorry that my late colleague and co-delegate for Queensland, Mr. Macrossan, is not
here to express his opinion on that proposal. I am satisfied, notwithstanding that during all
10 his political career he was a representative of northern constituencies in Queensland-
constituencies where the question of black labour was a burning one-that he would have
most cordially supported the proposal, and would have insisted upon the necessity of that
power being given to the legislature of the commonwealth of Australia, and not to the
legislature of any particular state, because the introduction of an alien race in considerable
15 numbers into any part of the commonwealth is a danger to the whole of the commonwealth,
and upon that matter the commonwealth should speak, and the commonwealth alone.
Mr. DONALDSON: Mr. Macrossan expressed himself to that effect!

END QUOTE
.
QUOTE
Mr. THYNNE: I was unable to attend the committee when this clause was discussed.
We purport here to give exclusive power to the federal parliament to make laws with
25 respect to the affairs of people of any race with respect to whom it is deemed necessary to
make special laws not applicable to the general community. It seems to me that that will
conflict with the powers reserved to each of the several states under clauses 25 and 26,
chapter I, of this bill, where the states have reserved to them the power of excluding from
the franchise any particular race or class of people whom they think it is undesirable should
30 be intrusted with the franchise. We give the states power to make a special law, while in
this clause we give that power exclusively to the federal parliament. I do not know whether
the hon. member in charge of the measure has given this point full consideration.
Sir SAMUEL GRIFFITH: I do not think there is any inconsistency. Each state is
allowed to prescribe who are to be its electors-it may say anything it pleases about that. I do
35 not think that an electoral law saying that only British subjects shall vote can be said to be
a special law applicable to the affairs of the people of any race for whom it is thought
necessary to make special laws not applicable to the general community. I think that
would be rather a far-fetched construction of the provision.
Mr. THYNNE: If a law were passed saying that the natives of the South Sea Islands
40 would not be permitted to exercise the franchise, that would be a special law dealing with
the affairs of that race, and not applicable to the general community. The state is given
power to do that in one part of this bill, while in this part that power is reserved exclusively
to the federal parliament. I think there is a conflict between the two provisions.
Mr. DEAKIN: There is another point I think the hon. member, Sir Samuel Griffith,
45 should look into. That is, whether the exclusive power contained in the 1st sub-clause
would not prohibit any individual colony from dealing with such a question in the interim
p 510 9-3-2009
p511
until the commonwealth thought it necessary to take action in the matter? Would it not be
as well to leave power to any state to deal with such questions until the commonwealth
undertook to legislate, as in other cases?
Sir SAMUEL GRIFFITH: I think this should be an exclusive power on the part of the
5 federal parliament.
Mr. DEAKIN: But only when the commonwealth exercises it!
Sir SAMUEL GRIFFITH: Then it would not be an exclusive power.
Mr. DEAKIN: It would become exclusive so soon as the commonwealth thought fit to
exercise it!
10 Sir SAMUEL GRIFFITH: So it will be with every other power which the
commonwealth takes into its hands. The intention of the clause is that if any state by any
means gets a number of an alien race into its population, the matter shall not be dealt with
by the state, but the commonwealth will take the matter into its own hands.
[start page 703]

15 Mr. DEAKIN: There is great force in the hon. and learned member's argument as to that
being the proper thing to do; but, until that is done, will the state have power to take action?
Suppose the commonwealth does not interfere, will it be said that the states shall be
prohibited from doing that which they can do at present? I agree with the hon. and learned
member that the commonwealth should possess the exclusive power if it chooses to
20 exercise it; but is it not undesirable in a bill for the constitution of the commonwealth to
impose a disability on the states?
Sir SAMUEL GRIFFITH: What I have had more particularly in my own mind was the
immigration of coolies from British India, or any eastern people subject to civilised powers.
The Dutch and English governments in the east do not allow their people to emigrate to
25 serve in any foreign country unless there is a special law made by the people of that country
protecting them, and affording special facilities for their going and coming. I am not sure
that that applies to Japan. It might apply to the Government of China, but I do not know
whether it does. I maintain that no state should be allowed, because the federal parliament
did not choose to make a law on the subject, to allow the state to be flooded by such people
30 as I have referred to.
Mr. GILLIES: Would this clause prevent any state from making a law on the subject
until the federal parliament did so?
Sir SAMUEL GRIFFITH: Yes, and I maintain that it ought to be so.

Mr. GILLIES: Who, except the federal parliament, is to determine to what race this
35 applies?
Mr. ADYE DOUGLAS: It seems to me that in giving this exclusive power you are
doing what you do not intend to do. Suppose that people of an alien race from India or
China went to Queensland, and the commonwealth did not choose to pass a law dealing
with the matter, not being interested in that particular question, is the state parliament not to
40 make a law to exclude those aliens? It seems to me that by putting in the word
"exclusively" you are doing what you do not intend to do, and you are giving no power to
p 511 9-3-2009
p512
any state, when invaded by a foreign race, to protect itself. It cannot do so, because the
exclusive right rests with the commonwealth.
Mr. WRIXON: I do not think that the point put by Mr. Deakin has been sufficiently met.
He has no objection whatever to the federal parliament dealing with this subject. The point
5 is whether until the federal parliament touches the matter the hands of the states are to be
tied altogether.
Mr. GILLIES: I do not think they are!
Mr. WRIXON: Exclusive legislative power is given to the federal parliament. That
would exclude the states.
10 Mr. GILLIES: The hon. member has not noted the point which I made. The clause says:
The affairs of people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community.
I say that, until the federal parliament deals with that, and determine the race to
whom it is applicable, you cannot tell what race it is. They have to make a special law
15 to deal with the matter.
Mr. WRIXON: The practical result of that is, that the state can do nothing until the
federal parliament acts. That ought to be met by giving the state power to act, the matter to
be taken out of the hands of the state the moment the federal parliament takes it up.
Mr. CLARK: The argument is the other way. This exclusive power can only be
20 exercised with regard to a race respecting whom it is deemed necessary to make special
laws. Who is to deem it necessary? The federal parliament; and it must [start page 704]
give evidence by legislation that it has deemed it necessary, and until it does that the
exclusive power does not exist. The state can proceed to legislate on the matter until the
federal parliament gives evidence that it has considered the subject and come to a
25 conclusion upon it.
Mr. FITZGERALD: Is that conclusion agreed to by the hon. and learned member in
charge of the bill?
Sir SAMUEL GRIFFITH: I am disposed to think that that is right. I did not think so a
few minutes ago, but I am impressed by the argument!
30 Mr. DEAKIN: It is at least open to contention. The words-
The affairs of people of any race with respect to whom it is deemed necessary to make
special laws not applicable to the general community-
might as well apply to the colony as to the federal parliament. The clause deals with the
parliament of the commonwealth throughout, but in this particular part it uses the
35 impersonal reference "to whom it is deemed necessary." If that is amended by saying "to
whom the parliament of the commonwealth deem necessary," I shall be satisfied, as it will
remove all doubt. We ought to make the intention clear.
Clause verbally amended by the insertion of the words "affairs of the" before the word
"aboriginal"' in the 1st sub-clause.
p 512 9-3-2009
p513
Clause, as amended, agreed to.

END QUOTE
.
Hansard 11-2-1890 THE PROCEEDINGS OF THE FEDERATION CONFERENCE
5 QUOTE Captain RUSSELL.-
There is no reason why Australia should not adopt that which is best from every kind of
Constitution in forming the Union. Then the question comes, can Australasia at the present
moment join in this, federation? Though I believe that the feeling in all the colonies of
Australasia is most kindly one towards the others, and though there is a desire that their
10 interests should be identical, it would be absurd to deny the fact that when circumstances
are so different as between the sister colonies of New Zealand, Fiji, and Australia, it is
impossible to say at this moment that the people of the two former colonies would at once
join in any scheme of federation. There are very many points in which the colony which I
represent would be glad to join in happy concord with the continental colonies, but to say
15 absolutely that that colony would be prepared, at any rate for the next few years, to merge
its young manhood in the more mature life of the Australian Colonies would be to lead the
Conference to believe what I cannot hope. We have many interests in common, but it is
probable we should not at once submit ourselves to a Government in which we should have
so unimportant a part. Mr. Clark, the Attorney-General for Tasmania, remarried, when
20 addressing the Conference to-day, that with every distinct physical environment there
comes a distinct national type. With a population of 700,000 people in New Zealand,
dwelling in an island where the climate is dissimilar to a very great extent from that of
Australia, which has been colonized in an entirely different manner, and, speaking
colloquially, having had a very much rougher time than the colonies of Australia, we are
25 likely to develop a very complete individuality-a distinct national type. We have had to
struggle against not only a more boisterous climate than Australia, but against a dense
vegetation; and we have had to carve our homes out of the wilderness, which, though
marvellously prolific end fertile, nevertheless marks a country in which self-denial has had
to be practised by its [start page 42] settlers to an extent of which the people of the
30 Australian continent have no conception. Not only have the settlers had to struggle against
the forces of nature, but against a proud, indomitable, and courageous rice of aborigines.
That native race has been treated in a manner so considerate that the condition of no other
native and savage race on the face of the globe can be compared to it. Their right to their
lands was recognised from the first. I do not boast that our public men were more pure in
35 spirit than those of other countries, but as the colonization of New Zealand was effected
originally through missionary zeal, through that, to a large extent, our hearts and policy
were softened. But in addition to this feeling, the natives could defend their own interests
and look down the sights of a rifle better than any other savage people. They were many,
and the white settlers were few, and when our hearts were not softened by the missionary,
40 we were controlled by the thought of the Maoris' numbers, and of their rifles. Therefore we
recognised their right to their own land, and instead of confiscating it we admitted their
claim to its full possession, administration, and disposal. Members of the Conference may
perhaps ask, why am I giving this short historical sketch? It bears materially upon the
question of federation. The whole of New Zealand politics for years hinged almost entirely
45 upon the native question. That question destroyed more Governments than anything else in
New Zealand. All turned upon the necessity for keeping the natives at peace, and yet
obtaining enough of their lands to further colonization. I am happy to say, and I thank God
for it, that the day is past in which there is any probability-nay, any possibility-of another
native war occurring. But one of the important questions in New Zealand politics for many
50 years to come must be that of native administration, and were we to hand over that question
p 513 9-3-2009
p514
to a Federal Parliament-to an elective body, mostly Australians, that cares nothing and
knows nothing about native administration, and the members of which have dealt with
native races in a much more summary manner than we have ventured to deal with ours in
New Zealand-the difficulty which precluded settlement for years in the North Island might
5 again appear. It is extremely improbable that hostilities would again break out between the
natives and the white settlers, but the advance of civilization would be enormously delayed
if the regulation of this question affecting New Zealand was handed over to a body of
gentlemen who knew nothing whatever of the traditions of the past.
END QUOTE
10 .
QUOTE Captain RUSSELL:
The reason why I think we should have a system of federation as loose as possible is
15 this: that all the more outlying portions of Australasia must be allowed to work out their
own destinies. When you think that we, in our own colony, have what may be termed a
foreign policy, inasmuch as we deal with an alien race, that we have laws very materially
affecting them, that the questions of native title are matters of very grave moment, and
that any interruption in our relations with those people might be of the most serious
20 importance to the colony, I think you will agree with me that we shall require to see that
we have a safeguard in all such respects as these before we submit ourselves to a federal
authority. And so, in the colonies of northern Australia, you yourselves may yet find that
you have difficulties unforeseen to cope with, It is true that the native races of the more
settled portions of Australia have given you but little trouble, and you have dealt with
25 them summarily, but possibly when you go to northern Australia you will find there a
race more resolute and more difficult to deal with.
Mr. PLAYFORD: No!

Captain RUSSELL: Of course I must bow to the wisdom and experience of those who
have already had to deal with them; but be that as it may, if New Guinea is ever to become
30 a part of Australasian federation, there, at any rate, is a people that will require to be dealt
with most carefully. Yet I have heard no member of the Convention speak on that subject.
There is nothing in these resolutions contemplating the possibility that there will be a
foreign race to deal with. But consider this difficulty, which I merely outline to you. The
great and all-pervading question that occupies men's minds in all parts of the world at the
35 present moment-it is undoubtedly doing so now in Australia, and it is a question more
advanced in my own colony than here-is the great social question-what is termed the social
upheaval, and I venture to say that every colony must be left to deal with a question like
that. It is a matter for social dealing. It is a matter with which men will deal rather
through municipalities than through a great federation in advancing, what I believe it
40 is necessary we should advance, the true liberties and freedom of the people.
Therefore, what we want is not the unification of Australasia, but a federation into
which all portions of Australasia may be drawn.
END QUOTE
.
45 In my view there is insufficient and failure of appropriate training in constitutional matters before
a person is appointed to the High Court of Australia. With MABO we had what I consider an
inventive High Court of Australia dreaming up a new kind of property entitlement that was not
known before and more over went against the intentions of the Framers of the Constitution and
above all beyond the legal jurisdiction of the High Court of Australia.
p 514 9-3-2009
p515
The High Court of Australia’s judicial powers being limited to INTERPRET the intentions of
the Framers of the Constitution and not fancy full create their own kind of constitution.
.
QUOTE
5 It would be simply monstrous that those who are born in England should in any way
be subjected to the slightest disabilities. It is impossible to contemplate the exclusion
of natural-born subjects of this character; but, on the other hand, we must not forget,
that there are other native-born British subjects whom we are far from desiring to see
come here in any considerable numbers.
10 END QUOTE
.
While the High Court of Australia in its 1996 Sue v Hill case referred to Heather Hill being as
person not entitled to be in the Senate, the truth is that the High Court of Australia no longer
remained to be the GUARDIAN OF THE CONSTITUTION as the Framers of the Constitution
15 intended it to be but rather went along with the politicasl motives of the Commonwealth and
possibly likely also the political and other motives of the judges themselves. In the 1982 Pochi
case, the so called Australia Act 1986 didn’t exist yet the High Court of Australia nevertheless
referred to the issue of “Citizenship” and more then likely because of the 1948 Naturalisation and
Citizenship Act. The fact that this was unconstitutional was not apparently an issue for the
20 judges.
.
QUOTE
Mr. OCONNOR.-I know that there are circumstances under which you can do it, but we
25 all know that there are circumstances under which, although you may have the clearest
possible claim against a person, you cannot sue him, from the difficulty of the citizen of
one colony suing a citizen in the courts of another colony.
Mr. HIGGINS.-Is there any difficulty about trusting the Federal Parliament in this
matter?
30 [start page 1756]

END QUOTE
And
QUOTE
Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick,
35 and I trust that it will be carried. I cannot conceive that in the adoption of legislation on this
subject Parliament would do aught else than make the definition uniform and of general
application. If there was any necessity for making that clear, the insertion of the words
"uniform citizenship of the Commonwealth" would accomplish that, but I hardly think it is
necessary. I am impressed with the importance of taking power as occasion arises to
40 define what shall constitute citizenship of the Commonwealth; and the Bill at present
is altogether deficient in regard to giving any power to the Commonwealth Parliament
to legislate on this subject. It seems to me it is a very difficult matter, and one with which
we should not attempt to deal here, but rather should refer it to those who, when necessity
arises to adopt some legislation on the subject, will have all the facts before them, and may
45 reasonably be supposed to be able to make the best provision for the purpose in connexion
with the subject. My honorable friend (Mr. Glynn) referred to the principle which he said
obtained, I think, in Germany, where only native-born Germans, or those who are
naturalized in the empire, are admitted to the privileges of citizenship. I asked in the course
p 515 9-3-2009
p516
of his remarks how would that apply to citizens of the Commonwealth. It is a very difficult
thing to deal with. If you provide that only those shall be citizens of the Commonwealth
who were born in it or have been naturalized, you will undoubtedly be putting too strict a
limitation on citizenship. It would be simply monstrous that those who are born in
5 England should in any way be subjected to the slightest disabilities. It is impossible to
contemplate the exclusion of natural-born subjects of this character; but, on the other
hand, we must not forget, that there are other native-born British subjects whom we
are far from desiring to see come here in any considerable numbers. For instance, I
may refer to Hong Kong Chinamen. They are born within the realm of Her Majesty, and
10 are therefore native-born British subjects.
END QUOTE
And
QUOTE Mr. SYMON.-
You have given the Federal Parliament power to deal with the question of aliens,
15 immigration, and so on, to prevent the introduction of undesirable races. Under that
provision you enable the Federal Parliament to legislate within certain limits, and in a
certain direction. Under that they may, within those limits, take away, or they may
restrict, the rights of citizenship in a particular case. That is what we intend them to do.
I am not going to give carte blanche to the Federal Parliament to say who shall and
20 who shall not be citizens. The object of all who are represented here is that the Union
of these states is of itself to confer upon the citizens of the states the rights of citizens
of the Commonwealth.
Mr. HIGGINS.-You may depend upon it that the states will see that this is kept up.
Mr. SYMON.-I agree with the honorable member, and I also think it is unlikely that the
25 Commonwealth will seek to derogate from it, but I will not place a power in the hands of
the Commonwealth which will enable them to derogate from it, and if that is not done it
will 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 the
citizenship of the Commonwealth. When you have immigration, and allow different
30 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 they
come here.
Mr. SYMON.-That is a point I do not wish to deal with. But they become citizens of
35 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?
END QUOTE
And
40 QUOTE
Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will
come under the operation of the law, so as to be a citizen of the Commonwealth, who
would not also be entitled to be a citizen of the state? There ought to be no opportunity for
such discrimination as would allow a section of a state to remain outside the pale of the
45 Commonwealth, except with regard to legislation as to aliens. Dual citizenship exists,
but it is not dual citizenship of persons, it is dual citizenship in each person. There may
p 516 9-3-2009
p517
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but
one only is a citizen of the Commonwealth. That would not be the dual citizenship
meant. What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say,
I am a citizen of the state and I am also a citizen of the Commonwealth; that is the
5 dual citizenship. That does not affect the operation of this clause at all. But if we introduce
this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those who
say that it is putting on the face of the Constitution an unnecessary provision, and one
which we do not expect will be exercised adversely or improperly, and, therefore, it is
much better to be left out. Let us, in dealing with this question, be as careful as we possibly,
10 can that we do not qualify the citizenship of this Commonwealth in any way or exclude
anybody [start page 1764] from it, and let us do that with precision and clearness. As a
citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be
prepared to trust it, the right of depriving me of citizenship. I put this only as an
15 argument, because no one would anticipate such a thing, but the Commonwealth
Parliament might say that nobody possessed of less than £1,000 a year should be a citizen
of the Federation. You are putting that power in the hands of Parliament.
Mr. HIGGINS.-Why not?

20 rest this Constitution on a foundation that we understand, and we mean that every
with regard to one particular set of people who are subject to disabilities, as aliens,
25 our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
END QUOTE
And
QUOTE Mr. BARTON (New South Wales).-
30 Now, each citizen of a state is, without definition, a citizen of the Commonwealth if
there is such a term as citizenship to be applied to a subject of the empire.
END QUOTE
And
QUOTE
35 Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to
objections from members of the Convention. I am inclined to think that the Convention is
right in not applying [start page 1765] the term "citizens" to subjects residing in the
Commonwealth or in the states, but in leaving them to their ordinary definition as subjects
of the Crown. If, however, we make an amendment of this character, inasmuch as citizens
40 of the state must be citizens of the Commonwealth by the very terms of the Constitution,
we shall simply be enabling the Commonwealth to deal with the political rights of the
citizens of the states. The one thing follows from the other. If you once admit that a
citizen or subject of the state is a citizen or subject of the Commonwealth, the power
conferred in these wide terms would enable the Federal Parliament to deal with the
45 political rights of subjects of the states. I do not think the honorable member intends
to go so far as that, but his amendment is open to that misconception.
Mr. HOWE.-Trust to the Federal Parliament.
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Mr. BARTON.-When we confer a right of legislation on the Federal Parliament we trust

them to exercise it with wisdom, but we still keep as the subject of debate the question of
whether a particular legislative right should be conferred on the Federal Parliament. When
you give them the right then you may trust them to exercise it fully.
5 Mr. HOWE.-And wisely.
Mr. BARTON.-If the honorable member's exclamation means more than I have
with the lives, liberty, and property of all the persons residing in the Commonwealth,
10 "Trust the Federal Parliament" would mean unless it was limited by the consideration I
have laid down. I am sure Dr. Quick will see that he is using a word that has not a
Constitution. He will be giving to the Commonwealth Parliament a power, not only of
15 narrowest limits, so that the citizenship of a state might be worth nothing; or of
extending them in one direction, and narrowing them in another, so that a subject
heels. Under the Constitution we give subjects political rights to enable the Parliament to
20 of electors. It is that qualification of electors which is really the sum and substance of
political liberty, and we have defined that. If we are going to give the Federal Parliament
defined it, we may be enabling the Parliament to pass legislation that would really
25 ducks and drakes with it. That is not what is meant by the term "Trust the Federal
Parliament."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of
the British Empire. Have we not done enough? We allow them to naturalize aliens. That
30 is a power which, with the consent of the Imperial authority, has been carried into
legislation by the various colonies, and, of course, we cannot do less for the
Commonwealth than we have done for the colonies.
Mr. KINGSTON.-Such legislation is only good within the limits of each state.
35 right which a person has as a British subject-the right of personal liberty and
protection under the laws-is secured by being a citizen of the states. It must be
1766] the laws regarding property and personal liberty is still left with the states. We
40 do not propose to interfere with them in this Constitution. We leave that amongst the
reserved powers of the states, and, therefore, having done nothing to make insecure the
rights of property and the rights of liberty which at present exist in the states, and having
also said that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary. It is
45 better to rest there than to plunge ourselves into what may be a sea of difficulties. We do
p 518 9-3-2009
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not know to what extent a power like this may be exercised, and we should pause before we
take any such leap in the dark.
Dr. QUICK (Victoria).-I understood that, under the Federal Constitution we are creating,
we would have a dual citizenship, not only a citizenship of the states, but also a
5 citizenship of the higher political organization-that of the Commonwealth. It seems now,
from what the Hon. Mr. Barton has said, that we are not to have that dual citizenship; we
are to have only a citizenship of the states.
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are
all alike subjects of the British Crown.
10 Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more
Constitution? Mr. Barton was not present when I made my remarks in proposing the clause.
I then-anticipated the point he has raised as to the position we occupy as subjects of the
British Empire. I took occasion to indicate that in creating a federal citizenship, and in
15 defining the qualifications of that federal citizenship, we were not in any way
scope of the Constitution to do that. We might be citizens of a city, citizens of a colony,
or citizens of a Commonwealth, but we would still be, subjects of the Queen.
END QUOTE
20 And again
QUOTE
Parliament to deal with the political rights of subjects of the states.
25 END QUOTE
.
Therefore if the Commonwealth had constitutional powers to define/declare citizenship in 1948 it
could have from then on abolished the States by simply interfering with State electors not being
entitled to vote in State elections by removing their right to franchise. However it must be clear
30 that while the commonwealth was granted powers to naturalise as this was given by the British
parliament to do so on its behalf, it had no constitutional power, indeed specifically was refused
to define/declare “citizenship”! Yet despite this the High Court of Australia in the Pochi case and
numerous other cases never bothered to refuse to enforce unconstitutional legislation and it might
be simple that the judges were incompetent to appropriately interpret the intentions of the
35 Framers of the Constitution.
.
QUOTE
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
40 Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
I ruled this out of order.
45 END QUOTE
.
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QUOTE Sir EDWARD BRADDON.-

consider the great amount of time, trouble, and expense it would take to make any
5 alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
10 .
QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
15 one of those instances which should make us very careful of following too slavishly the
provisions of the United States Constitution, or any other Constitution. No doubt in putting
together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
20 degree applicable. But it is for us to consider, looking at the history and reasons for these
provisions in the Constitution of the United States, whether they are in any way applicable;
and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of every word that we put in this Constitution, and that we should have no
word in it which we do not see some reason for. Because there can be no question that in
25 time to come, when this Constitution has to be interpreted, every word will be weighed and
an interpretation given to it; and by the use now of what I may describe as idle words which
we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
30 END QUOTE
.
QUOTE Mr. BARTON.
35 regard to Commonwealth citizenship, not having defined it, we may be enabling the
END QUOTE
40 .
The appointment of the Governor-General must be through the Home Office (10 Downing
Street) and cannot be by the Commonwealth government because as the Framers of the
Constitution made clear;
QUOTE
45 because I take it that the legal bonds which bind us to the mother-country, to the
great British Empire,
END QUOTE
.
p 520 9-3-2009
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The High Court of Australia may fanciful create different constitutional meanings but to me
without the proper legal connection not a single Commonwealth law is validly enacted. In my
view, the Governor-General then is no more but an impostor.
.
QUOTE
Mr. HOLDER: We want something which shall have two parts, which shall be
democratic in the fact that it is based on the people's will, and that in it every personal unit
of the population shall be recognised and his individuality preserved, and that, on the other
10 hand, shall be a true Federation, in that each State unit shall also have its individuality
preserved and its independence assured. I do not think we can afford to dispense with either
of these two things. We cannot afford to dispense with the guarantee of the personal
individual rights of every citizen of the Commonwealth, nor, on the other hand, can we
afford to dispense with the individual or separate rights or interests of each of the separate
15 States-if my hon. friend Mr. O'Connor prefers that term. We cannot neglect to provide for
their due recognition. The next principle I shall lay down is this: That in dealing with this
federal authority we should confer on it no powers which it cannot exercise more
wisely and well and effectively than the States can exercise those powers. I would even
go a step further, and lay down as the principle which should govern our conduct: To the
20 States all that is local and relating to one State, to the Federal authority all that is national
and inter-State. I wonder whether I can secure the absolute adherence, no matter where it
may lead us, of a majority of this Convention to that principle: To the State everything that
is local and relating to one State, to the Federal power everything that is national and of
inter-State importance. I pass from these two general principles to a discussion of the only
25 other preliminary I shall have to touch, and that is the question of the appointment of the
representative of the British Crown in the person of the Governor-General. I do not take it
that the words of the Enabling Act requiring us to frame a Constitution for a Federation
"under the Crown" bind us in the matter of whether or not we shall elect our own
Governor-General, because I take it that the legal bonds which bind us to the mother-
30 country, to the great British Empire, are chiefly, first the right of veto which the Imperial
authorities have over any Acts our local Legislature may pass, and which the Federal
Legislature may pass, and next the right of the Imperial Legislature at any time to pass
legislation which may affect us, or which may revoke any legislation affecting us. These
are the great legal bonds which bind us to the British Empire. But above all this, the greater
35 and wider, and, to my mind, much more important [start page 145] bonds than the legal
bonds are those of kinship, of language, and of sympathy that must always bind us to the
motherland. The mere appointment by the Crown of the Governor-General is not a real
bond. That this is so is recognised to-day in that we have presiding, now and again, in the
position of Acting-Governor of one or other of these colonies, gentlemen who so preside by
40 virtue of their position upon the legal bench. In the appointment of the Governor we have
only one link, and that link is again and again missing when gentlemen, owing to their legal
position, temporarily occupy the office.
Mr. SYMON: By vice-regal appointment.

Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it
45 is actually called into existence by the absence of the Governor; but we can at this moment,
if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that would
qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is
clear that to that extent it lessens the argument that the main link that binds us to the
mother-country is the appointment of the Governor, and shows that it is an argument which
p 521 9-3-2009
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has not half so much weight as some of the speakers would have us believe. But I take a
very strong position against the election of the Governor-General by the Federation, not
because I believe it would mean losing a link which binds us to England, but that we should
have a man of such power and authority, derived directly from the people, that he would
5 certainly clash with the other powers and authorities we propose to set up under this
Constitution.
END QUOTE
And
QUOTE Mr. LYNE:
10 First of all, he raised the question of the appointment of the Governor-General for the
Federal Executive. Now, I think there is no desire on the part of any large section of
this community to take what I may term the first step towards a severance from the
mother-country, but the first step would be in the election of the Governor-General
instead of allowing his appointment to be made by the Home Government. It is but a
15 small connecting link between the Australasian colonies-between a Federated
Australia and the mother-country-to allow the appointment to be made by the Home
Government; and I should like to know what power that Government would have
over any Governor-General elected in the manner desired.
END QUOTE
20 .
QUOTE
The Hon. J.H. GORDON (South Australia)[3.17]: I think the question of [start page
1077] a lunatic coming from one state to another is a matter for the states themselves.
25 When I had the honor of being Chief Secretary we had great trouble with lunatics coming
from New South Wales to South Australia. It was a constant source of irritation between
the officials of the two colonies. I am bound to say that I think my friends are looking at the
matter from an exceedingly provincial point of view. I admit that the colony of New South
Wales made a fair arrangement, by which there was a small charge, involving no profit to
30 South Australia. We took care of their lunatics, cured them, and sent them back, and,
for all I know, some of them may have become members of parliament.
The Hon. J.H. CARRUTHERS: That shows it is a federal matter!
The 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
35 true that this power 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
legislation. I quite agree with the hon. member, Mr. Gordon, that it is impossible to deal
40 with the question of lunacy apart from the question of the cure and control of lunatics, and
also the law relating to the disposal of the property of lunatics in the different states. It
seems to me to be entirely a matter of state concern. I am quite aware that, in the
interchange of lunatics up to the present time, New South Wales perhaps has not got the
best of the bargain. But that, it appears to me, is a small matter compared with the
45 inadvisability of loading up the commonwealth unnecessarily with the powers which must
be involved in taking charge of this particular department of administration.
END QUOTE
Again;
p 522 9-3-2009
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QUOTE
some of them may have become members of parliament.
END QUOTE
.
5 Seems to me they never left!
I accept that the status of States was as result of the federation and that many principles
embedded in the Constitution are also applicable to the States however, the Commonwealth is
not and never was the governing body over the States merely that is became, so to say, an
appendage for all colonies (now States) to exercise the former colonial powers jointly for so far
10 they were handed over for that purpose.
Whereas the Commonwealth is bound to exercise legislative powers for the “whole of the
Commonwealth” such equivalent does not exist with State legislation. A state has the internal
legislative powers to do as it deems fit. As such, a State can discriminate against parts of its
territories. It can upgrade certain road and ignore others. It can provide certain assistance and
15 deny it to others. In principle the Commonwealth is bound to legislate for equality throughout the
Commonwealth and this does not likewise apply to the States regarding State territories.
As set out below also the Framers of the Constitution were authorised to frame a Constitution but
were not at all authorised to dictate the States (then colonies) what Constitution they had to
accept and interfere with Colonial (Now State) powers. As such, how States conduct their
20 internal affairs is none of the Commonwealth business but can be subject to the principles
embedded in the Constitution.
.
Knight v Bell and Anor M46/2000 (13 September 2002)
QUOTE
25
KIRBY J: I doubt if that is what his Honour said. His Honour would have, no doubt,
said to you that the Federal Constitution, which, in a sense, is a new start, contains
references to the Parliaments of the State - - -
30 MR KNIGHT: Sorry, your Honour?
KIRBY J: - - - and the Parliament of the State includes the Parliament of Victoria.
END QUOTE
And
35 QUOTE
KIRBY J: The State of Victoria is part of the Commonwealth of Australia, and that
is all you have to know. That is in our federal Constitution.
END QUOTE
And
40 QUOTE
KIRBY J: We are not. We are the Commonwealth of Australia, an independent
country.
END QUOTE
And
45 QUOTE
KIRBY J: Queen of Australia.
MR KNIGHT: Well, your Honour, I mean - - -
50 KIRBY J: There is no question about it.

p 523 9-3-2009
p524
END QUOTE
And
QUOTE
KIRBY J: In any case, statements by a judge, even assuming that to be correct,
5 would not make it correct law.
MR KNIGHT: No, they do not, your Honour, but when I wanted the transcript, as
you have seen in the submissions there, that was not available either, so, I mean, it
just goes on and on. 1984 - this is the Australia Act 1986
10 <http://www.austlii.edu.au/au/legis/cth/consol_act/aa1986114/> - 1984, Bob
Hawke signed letters patent. 1986, the Australia Act 1986
<http://www.austlii.edu.au/au/legis/cth/consol_act/aa1986114/> signed by Bob
Hawke. 1986, no referendum - implied jurisdiction out of section 51. Bob Hawke, a
citizen of Israel - section 44 of the federal Constitution. The result of the above facts
15 is that the Australia Act
<http://www.austlii.edu.au/au/legis/cth/consol_act/aa1986114/> contravenes section
128 of the federal Constitution - - -
KIRBY J: Mr Hawke did not sign it into law. Her Majesty the Queen signed it into
20 law in Canberra, in her own person.
END QUOTE
.
QUOTE
25 Sir JOHN FORREST.-I would not move it if it did.
Mr. SYMON.-I hope both Sir John Forrest and myself would be found resisting any
proposal which involved a step in the direction of separation. It appears to me that the real
objection to the amendment is that stated by Mr. Reid, that it really seeks to interfere with
the state Constitutions. This amendment in its first line is to the effect-"In each state of the
30 Commonwealth there shall be a Governor." What right have we, in the Federal
Constitution, to declare that? What right have we to interfere with the Constitutions
of the states, which will remain, practically, independent states within the
Commonwealth? We are not seeking to interfere in any way with the existing state of
things in relation to the head of the Executive. But the proposal would involve us in a
35 difficulty. Having declared there shall be a Governor for the state, the proposal goes on to
prescribe, not that the existing state of things shall continue-subject, of course, to the
Imperial authority, and to the control of the state itself-but that the Governor shall be
appointed for all time under the Constitution, until that is altered, by the Governor-General
in Council. And that we are asked to do without the consent of the state. It is not for this
40 Convention to take a step of that kind. It would be interfering in the highest-and I
venture to think the most improper-degree with the functions of the state, which we
seek to preserve. It is a state interest and a state matter entirely; and, therefore,
without going into the large question raised by Mr. Wise as to the social and other
functions of the Governor, or Lieutenant-Governor, we ought to abstain from taking
45 one step beyond what we are obliged to do in interfering with the existing government
of the autonomous states.
END QUOTE
And
QUOTE
p 524 9-3-2009
p525
Sir JOHN FORREST.-

We have the United States of America, in which Governors are elected. That, of course, I
do not approve of. I think it is not consonant with our ideas of responsible government to
have the chief executive officer appointed by the people. I think friction is more likely to
5 arise under such a system than if you place the Governor in a constitutional position, as we
do, by appointing him as the representative of the Queen.
END QUOTE
Again
QUOTE
10 What right have we, in the Federal Constitution, to declare that? What right have we
to interfere with the Constitutions of the states, which will remain, practically,
independent states within the Commonwealth?
END QUOTE
And
15 QUOTE
we ought to abstain from taking one step beyond what we are obliged to do in
interfering with the existing government of the autonomous states.
END QUOTE
.
20 As such the written text of the Constitution may not reveal certain matters but as a
CONSTITUTIONALIST I detect many of the principles by painstakingly consider the details
contained in the Hansard records of the Constitution Convention Debates.
O’Conner clearly was defeated in what appeared to me con-federalist move to demand that the
States by the Constitution would be required DUE PROCESS OF LAW, and subsequently after
25 becoming a judge of the High Court of Australia it was no wonder to me that the High Court of
Australia then banned the use of the Hansard records of the Constitution Convention Debates,
despite that the Framers of the Constitution had stated that the Hansard records were to be
considered as to ascertain the intentions of the Framers of the Constitution regarding the true
meaning of constitutional text, that basically it went all of the rials because the High Court of
30 Australia to be the GUARDIAN OF THE CONSTITUTION from onset was manipulated by
judges to do precisely anything but this.
For this it is ridiculous to rely upon any High Court of Australia judgment that disregard the true
intentions of the Framers of the Constitution or where the High Court of Australia is reinventing
the Constitution to their own contemporary views, as some alternative to allowing the people
35 their right to decide if the Constitution shall or shall not be amended.
.
An example is the High Court of Australia decision as to ADMINISTRATIVE DETENTION
even so as the quotation below shows it was left to the States to provide accommodation and the
Commonwealth did not have any powers to enforce its own criminal law. As such at most it
40 could apply for a State Court to enforce Commonwealth law.
.
QUOTE
Clause 113.-Every state shall make provision for the detention and punishment in its
45 prisons of persons accused or convicted of offences against the laws of the
Commonwealth and the Parliament of the Commonwealth, may make laws to give
effect to this provision.
Mr. GLYNN (South Australia).-I think the words "or detention" should be inserted after
"the detention." At present the clause reads-"The state shall make-provision for the
p 525 9-3-2009
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detention and punishment in its prisons of persons accused or convicted," &c. We do not
want to punish "persons accused." I beg to move-
That the words "or detention" be inserted after "detention."
The clause will then read-"For the detention or detention and punishment," &c.
5 Mr. BARTON (New South Wales).-I do not think that amendment would quite do. I
could understand the clause being amended so as to make it read-"detention or punishment
of persons accused or convicted." The object of the clause, as it stands, is to keep together
the terms "accused or convicted," so, that the relation, both of accusation and conviction, to
the laws of the Commonwealth may be made clear. The clause only applies to accusations
10 or convictions in respect of laws of the Commonwealth, and, therefore, these words
"accused or convicted" are kept together just before the words "offences against the laws of
the Commonwealth." I think that if my honorable [start page 693] friend (Mr. Glynn)
would alter his amendment so as to make it read "detention or punishment," there can be no
misreading of the clause.
15 Sir JOHN DOWNER (South Australia).-I think the words should stand as they are. You
have to make provision for both things.
Mr. GLYNN.-Not for the punishment of accused persons.
Sir JOHN DOWNER.-Provision has to be made both for detention and punishment. I
think the clause is clear enough as it stands at present.
20 Mr. SYMON (South Australia).-I believe that my honorable friend's (Mr. Glynn's)
feeling is that, by leaving the words as they are, the clause might be interpreted to enable
the federal authorities to demand from the state the detention and punishment of persons
who were not convicted, but I do not apprehend that there is the slightest difficulty on that
score. I do not think any court would interpret the words to mean the punishment of a
25 person accused and not convicted.
Mr. GLYNN (South Australia).-My contention is that, as the clause stands, the words are
to be read conjunctively in relation to the word "accused." The clause says that each state
shall make provision for the detention and punishment of persons accused or convicted.
You must read the word "punishment" in relation to "accused," as well as to "convicted."
30 The clause should read-"For the detention, or detention and punishment, as the case may
be, of persons accused or convicted," &c.
Sir EDWARD BRADDON (Tasmania).-I think the clause might be amended to get out
of the difficulty which has been pointed out. As it stands at present, it provides that the state
shall make provision for the detention and punishment in its prisons of persons accused or
35 convicted. Now, evidently, the detention is for those who have not yet been convicted,
and the punishment is for those who have been convicted, and I think that those two classes
ought to be separated.
Mr. BARTON (New South Wales).-I have an amendment which I think will meet the
case, and enable us to get on. I beg to move-
40 That the clause be amended by striking out the words after "detention" down to
"Commonwealth," and substituting in lieu thereof the words "in its prisons of persons
p 526 9-3-2009
p527
accused of offences against the laws of the Commonwealth, and the punishment of persons
convicted of such offences."
Mr. GLYNN (South Australia).-I would point out that, under the clause as now
proposed to be amended, a state might make provision for whipping persons
5 convicted, but not for detaining them in prison.
Mr. ISAACS.-Detention may be part of the punishment.
Mr. GLYNN.-But the punishment may not be detention, it may be flagellation. Are you
going to allow a state to make provision for the character of the punishment for an offence
against the Commonwealth?
10 Mr. Barton's amendment was agreed to.
END QUOTE
.
NO POWER AS TO CRIMNINALS other then to prosecute through State Courts and so also
15 their detention through State facilities, no Commonwealth Detention Centres! The
Commonwealth can legislate as to Commonwealth offences but cannot enforce it selves it laws
but must do so through State Courts and State law enforcement agencies within State territories.
.
20 QUOTE
Mr. BARTON.-No; because you do not give any power with regard to punishing
crime to the Commonwealth,
END QUOTE
.
QUOTE
Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.
[start page 1685]

30 Mr. GORDON.-Even that embraces a very large body of rights, and the principle is the
same. We have to rely in many of our relations on the probity of the Attorney-General, on
the probity of the Parliament, or, to go further down, on the probity of the community.
Upon all these grounds I contend that the amendment is one that ought to be passed. It
leaves the whole executive power open to attack. Once a law is passed anybody can say
35 that it is being improperly administered, and it leaves open the whole judicial power
once the question of ultra vires is raised. Under the clause, as I have amended it, it will
not prevent the plea of ultra vires being raised where it is accompanied with the plea of a
conflict of law. If there is a state law and a Commonwealth law on the same subject, every
citizen is entitled to know which be should obey. If he joins a plea of ultra vires with a plea
40 of conflict of law, that ought to be heard.
END QUOTE
.
PLUS English law re Parliament overriding States – in fact it could override Commonwealth law
also! Consider treaties, etc
45 .
p 527 9-3-2009
p528

QUOTE
Sir JOHN DOWNER.-Of course they do not. We have many statutes here giving
remedies to the subject which, although assented to by the Queen, are by no means in force
5 in England. We are here establishing a Constitution truly under the Crown, but in
many respects vastly different from the English Constitution. I think this principle is a very
proper one. It ought to be affirmed, and put in the Constitution. It is not a matter of
procedure. It is the establishment of a right which will not exist unless the words are put in.
If you want to give the right, you have to put it in. If you leave it out, you negative the
10 right. If you only give the Parliament the power to establish the right, then you are, to
some extent, negativing the right. I do not know that it is worth while to have much
discussion about the question-Can the Parliament do this without express words? I quite
agree with Mr. Barton that it could not.
Mr. ISAACS.-You think Parliament could not?

15 Sir JOHN DOWNER.-I think it has not the power.
Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?
Sir JOHN FORREST.-Put it in the powers of the Parliament.
Sir JOHN DOWNER.-We spend time enough in discussing things here, and when every
one is agreed that this clause is not to be adopted in the form in which it is printed, but is
20 only to be a power of the Parliament, it is not worth while to discuss the question of
whether it is [start page 1665] absolutely necessary to put in the words. Where there is a
wide difference of opinion, it would be safer to do it. I agree with Mr. Barton that there is
no power, because sub-section (37) of clause 52 reads-
Any matters necessary for or incidental to the carrying into execution of the foregoing
25 powers, or of any other powers vested by this Constitution in the Parliament or Executive
Government of the Commonwealth, or in any department or officer thereof.
I venture to say that these are not necessary or incidental to the execution of any powers.
The Commonwealth will come into existence under this Constitution plus English law,
one of whose principles is that the Queen can do no wrong. That is the foundation on
30 which the Constitution is established.
END QUOTE
Again;
QUOTE
35 END QUOTE
.
What should be understood is that for example as to merchant shipping English law would still
be overruling Commonwealth law as this is embedded in the Constitution! However, English law
cannot interfere with Commonwealth law that is otherwise within constitutional legislative
40 powers.
.
QUOTE
Mr. GLYNN ( South Australia )[12.35]: I have not the Federal Council Bill before me;
45 but I believe that that bill contained the words "sailing between the ports of the colonies."
p 528 9-3-2009
p529
The bill was sent home with those words in it; but her Majesty's advisers at home
deliberately changed the wording of the measure so as to give the Council wider
jurisdiction. There was a limitation in the bill which does not appear in the act, and the
Imperial authorities must have made this alteration for some specific purpose. They
5 could not have accidentally inserted the words "port of clearance, or." There is no danger
of conflict between the laws of the commonwealth and the Imperial law. The moment
a new act is passed in England which conflicts with any legislation passed by the
commonwealth, that act will to the extent of the difference abrogate the legislation
under the constitution of Australia .
10 END QUOTE
.
Constitutionally the States (former known as Colonies) are and remain to be DOMINIONS,
where as the Commonwealth of Australia is not and never was a Dominion (see quotation
below). It sovereignty is derived from exercising sovereign rights that by the Constitution were
15 transferred from the Colonies (now States) to the Commonwealth of Australia but no more. The
Australia Act basically makes the States to be part of the Commonwealth of Australia, which
would alter the constitutional arrangements totally. The Westminster Act basically rob the States
of their own sovereign rights and purports that only the Commonwealth of Australia now decides
what British Law can be permitted to be applicable. This is to unconstitutionally change, so to
20 say, the structure of the federation!
.
As for the substitution of the Constitution, that would amount to effectively being a repeal of the
original Constitution which cannot be done without a Section 128 referendum and without the
States themselves having first State Referendums to get rid of the British monarchy. I have not
25 included all of the numerous references of the debates but can assure you that the Framers of the
Constitution referred time and again to “this Constitution” and the “principles” embedded in it.
And NOT “that Constitution”, etc.
It is my view that constitutionally the Constitution applies “plus English law”. Indeed, it was
30 extensively debated that British law would still apply, such as merchant shipping.
.
The Westminster Act holds that the Commonwealth of Australia is a “dominion” but clearly it
never was. The Commonwealth of Australia is only a LIMITED “POLITICAL UNION” by
the Colonies (now States) (see below also).
35 It is my view that the Westminster Act itself is unconstitutional as it seeks to amend the
Constitution by a backdoor manner.
.
For example, the Merchant Shipping Act 1894 was a British law that was intended to be
applicable to certain extend to the Commonwealth of Australia as the Framers of the Constitution
40 debated this and other British law to be applicable, hence, to purport otherwise in the
Westminster Act makes this Act itself to be unconstitutional.
.
The following parts makes no sense to me in that the Constitution never provided any such
powers and as such it is another backdoor manner to effectively seek to amend the Constitution.
45 QUOTE
4. No Act of Parliament of the United Kingdom passed after the commencement of this Act
shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion,
unless it is expressly declared in that Act that that Dominion has requested, and consented
to, the enactment thereof.
50 .
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p530
(3) In the application of this Act to the Commonwealth of Australia the request and consent
referred to in section four shall mean the request and consent of the Parliament and
government of the Commonwealth.
END QUOTE
5 .
The fact that this is now pursued as to seek to repeal section 8 underlines this.
.
QUOTE
8. Nothing in this Act shall be deemed to confer any power to repeal or alter the
10 Constitution or the Constitution Act of the Commonwealth of Australia or the Constitution
Act of the Dominion of New Zealand otherwise than in accordance with the law existing
before the commencement of this Act.
END QUOTE
.
15 As to peace, order and good government I already have provided set this out in the document
“The Great Deception”.
.
As in regard of the right to bear arms, I do believe that the Hansard records does support this, as
the Framers of the Constitution did refer to militia, etc. To me it seems to indicate that the people
20 themselves would bear arms and could by this form a militia for the protection of the land, etc. in
my the right to bear arms is embedded in the Constitution and while it might be subject to law, it
should be understood that the parliament and/or the Courts may specifically prohibit a certain
person from holding any arms in his possession where there is legal justification for doing so. It
is the “legal justification” that is relevant. For example a person who is found to have misused a
25 weapon may for this be restricted or denied altogether to poses a weapon. However, a person not
having committed any wrong, I view, cannot be denied the possession of a weapon by mere
legislation without any justification. I therefore support your argument that it might be possible
to deny by legislation the inform, infants and say those convicted of having committed a crime
but not ordinary law abiding citizens.
30 QUOTE
I do not think it will be apparent to many hon. members that resolution No. 4 points
in any degree whatever to a standing army. It does not do so in my view; and I am
sure it was not intended to do so. The intention, I take it, is this: that we should
maintain a permanent force or a militia, which would be available in time of danger,
35 and with which we might be in a position to assist the mother country in her defence
of this portion of her dominions.
END QUOTE
And
QUOTE
40 The people themselves have undertaken the duty of creating such a force as, in their
judgment, would be sufficient to meet any foe that might land on these shores
END QUOTE
.
The Bill of Rights is fundament to our existence in that it was the Bill of Rights that gave British
45 Parliament the authority, as it has, where as prior to the Bill of Rights King James II had the full
authority.
p 530 9-3-2009
p531
It was a trade off with the then Prince William of Orange of The Netherlands that he would be
permitted to become King of England by marriage to, James II daughter, Princess Anne if he
were to sign the Bill of Rights, as otherwise he would be remaining a Prince.
Therefore, it cannot be held that somehow the Bill of Rights is merely an antic matter as it goes
5 to the basic authority of the British Parliament.
The Bill of Rights came to Australia with the First Fleet and is part of Common Law as is any
other British law existing at that time, and so also the Magna Charta and 1640 Habeas Corpus.
.
QUOTE
Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in
the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a
right of action for tort in certain cases, but I do not think that this extended right of action
15 has ever been given in any of the colonies. Conditions justifying actions for damages
against the Crown, however, are almost as frequent as actions for breach of contract. In
Canada a man sued the Crown for damages received in connexion with a railway accident,
but he was debarred of remedy there, although he suffered serious injury, because of some
defect in the railway laws not conceding this right. The position has been laid down in
20 regard to the Queen in the case I have already mentioned, that-
Where the land, or goods, or money, of a subject have found their way into the possession
of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot
be obtained, compensation in money; or when a claim arises out of a contract, as for goods
supplied to the Crown or to the public service-the Crown is bound to refer a petition of
25 right to the courts for decision, because it is provided by Magna Charta that justice
cannot be denied, sold, or delayed. By this action, similar rights of action are given to the
subject against the Crown in cases in which the subject can maintain a claim against
another subject.
END QUOTE
30 .
QUOTE
35 in England. We are here establishing a Constitution truly under the Crown, but in
many respects vastly different from the English Constitution. I think this principle is a very
40 right. If you only give the Parliament the power to establish the right, then you are, to
some extent, negativing the right. I do not know that it is worth while to have much
45 Sir JOHN DOWNER.-I think it has not the power.
Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?
p 531 9-3-2009
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only to be a power of the Parliament, it is not worth while to discuss the question of
5 whether it is [start page 1665] absolutely necessary to put in the words. Where there is a
powers, or of any other powers vested by this Constitution in the Parliament or Executive
10 Government of the Commonwealth, or in any department or officer thereof.
which the Constitution is established.
15 END QUOTE
.
QUOTE
20 right which a person has as a British subject-the right of personal liberty and
25 do not propose to interfere with them in this Constitution. We leave that amongst the
reserved powers of the states, and, therefore, having done nothing to make insecure the
rights of property and the rights of liberty which at present exist in the states, and having
also said that the political rights exercisable in the states are to be exercisable also in the
Commonwealth in the election of representatives, we have done all that is necessary. It is
30 better to rest there than to plunge ourselves into what may be a sea of difficulties. We do
not know to what extent a power like this may be exercised, and we should pause before we
take any such leap in the dark.
END QUOTE
Again;
35 QUOTE
Mr. BARTON.-Yes; and here we have a totally different position, because the
actual right which a person has as a British subject-the right of personal liberty and
40 among the subjects confided to the Commonwealth. The administration of [start page
do not propose to interfere with them in this Constitution
END QUOTE
.
QUOTE
Mr. OCONNOR.-Yes. I am not sure that the clause which the honorable member wishes
to amend does not cut down that power, if it has any effect at all. We were willing to give
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this concession, and we have done it. From the comments made upon this matter both in
the Convention and outside, I do not think that the full extent of the rights given under this
power to regulate commerce are appreciated. Fortunately, we are not without authorities
upon the question. There have been numberless decisions in America as to the rights which
5 are given by the power to regulate commerce, and, inasmuch as the American Constitution
has been interpreted upon principles of British law applied by the great jurists of
America, it is only reasonable to suppose that our Judges in interpreting our Constitution
will be guided very much by the same principles.
END QUOTE
10 .
QUOTE
Mr. GORDON.-
If irrigation is a national necessity and a national problem-if it is now a matter of regret
15 that the American Government did not take over the control of the public streams of
America-would not the same regret and the same conditions exist here? Irrigation will be
ten times more a national necessity here than it is in America, and the regret will be ten
times greater if we miss this chance of settling the question, and the Constitution does not
provide for the control of these water channels. And, after all, what are we asking for? We
20 are only asking for the right that every riparian proprietor enjoys under British law-the
right that the man above him shall neither injure the quality nor diminish the flow of any
stream designed for their mutual benefit and enjoyment. That is a right that is founded deep
in natural justice. It cannot be said that we are asking for anything extraordinary or making
extreme demands upon our follow colonists when we simply seek for that right which
25 every riparian proprietor under British law enjoys. The tendency of modern legislation is
to go even further than the common law doctrine in declaring that there shall be no
exclusive property in running streams.
END QUOTE
.
30 Hansard 8-2-1898 Constitutional Convention Debates
QUOTE
Mr. O’CONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling
may lead a majority in the Parliament of a state to commit an injustice by passing a
35 law that would deprive citizens of life, liberty, or property without due process of law.
If no state does anything of the kind there will be no harm in this provision, but it is only
right that this protection should be given to every citizen of the Commonwealth.
END QUOTE
And
40 QUOTE
Mr. O’CONNOR.-No, it would not; and, as an honorable member reminds me, there is
a decision on the 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.
45 Mr. O’CONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be some
form by which a person accused will have an opportunity of stating his case before
p 533 9-3-2009
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being deprived of his liberty. Is not that a first principle in criminal law now? I cannot
understand any one objecting to this proposal.
Dr. COCKBURN-Very necessary in a savage race.
Mr. O’CONNOR.-With reference to the meaning of the term due process of law, there
5 is in Baker's Annotated Notes on the Constitution of the United States, page 215, this
statement-
Due process of law does not imply that all trials in the state courts affecting the property
of persons must be by jury. The requirement is met if the trial be in accordance with
the settled course of judicial proceedings, and this is regulated by the law of the state.
10 If the state law provides that there shall be a due hearing given to the rights of the
parties-
Mr. BARTON.-And a judicial determination.

Mr. O’CONNOR.-Yes, and a judicial determination-that is all that is necessary.
END QUOTE
15 And
QUOTE
Mr. O’CONNOR.-I think that the reason of the proposal is obvious. So long as each
state has to do only with its own citizens it may make what laws it thinks fit, but we
are creating now a new and a larger citizenship. We are giving new rights of
20 citizenship to the whole of the citizens of the Commonwealth, and we should take care
that no man is deprived of life, liberty, or property, except by due process of law.
END QUOTE
.
Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)
25 QUOTE
157.The three cases that I have mentioned[185] illustrate singly, and even more forcefully in
combination, the resistance of the judges of the common law, since early times and until
the present age, to the notion of unlimited executive power to deprive individuals of
liberty. In another important and recent case which can now be added to those that I have
30 cited, Rumsfeld v Padilla[186], Stevens J (Souter, Ginsburg and Breyer JJ joining)
explained[187]:
"At stake in this case is nothing less than the essence of a free society. Even more
important than the method of selecting the people's rulers and their successors is
the character of the constraints imposed on the Executive by the rule of law.
35 Unconstrained Executive detention for the purpose of investigating and preventing
subversive activity is the hallmark of the Star Chamber.[188]"
END QUOTE
And
QUOTE
40 164. This point was well made by Barak P for the Supreme Court of Israel, sitting as the High
Court of Justice in Beit Sourik Village Council v The Government of Israel[200]. That
case concerned a challenge by Palestinian villagers to the "security fence" or wall being
p 534 9-3-2009
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constructed on their land. In the course of reasons that upheld some of the petitions,
Barak P cited an earlier decision of the Court in The Public Committee against Torture
in Israel v The Government of Israel[201] in which, after referring to the implications of
the decision for national security, he had said:
5 "This is the destiny of a democracy - she does not see all means as acceptable, and
the ways of her enemies are not always open before her. A democracy must
sometimes fight with one arm tied behind her back. Even so, a democracy has the
upper hand. The rule of law and individual liberties constitute an important aspect
of her security stance. At the end of the day, they strengthen her spirit and this
10 strength allows her to overcome her difficulties."
END QUOTE
And
QUOTE
66. Most of the rules[64] now recognised as rules of international law are of recent origin. If
15 Australian courts interpreted the Constitution by reference to the rules of international
law now in force, they would be amending the Constitution in disregard of the direction
in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended
only by legislation that is approved by a majority of the States and "a majority of all the
electors voting". Attempts to suggest that a rule of international law is merely a factor
20 that can be taken into account in interpreting the Constitution cannot hide the fact that, if
that is done, the meaning of the Constitution is changed whenever that rule changes what
would otherwise be the result of the case. The point is so obvious that it hardly needs
demonstration. But a simple example will suffice to show the true character of what is
done if courts take a post-1900 rule of international law into account. Immediately before
25 the rule was recognised, our Constitution had meanings that did not depend on that rule.
Either the rule of international law has effect on one or more of those meanings or it has
no effect. If it has an effect, its invocation has altered the meaning of the Constitution
overnight. As a result, a court that took the rule into account has amended the
Constitution without the authority of the people acting under s 128 of the Constitution. It
30 has inserted a new rule into the Constitution. Take this case. The issues are whether
ss 189, 196 and 198 are laws with respect to aliens or are exercises by the Parliament and
not the federal courts of the judicial power of the Commonwealth. If this Court had to
take a rule of international law into account in interpreting those powers, the rule would
either confirm what was already inherent in the powers or add to or reduce them. If the
35 international rule is already inherent in the power it is irrelevant. If it is not, its invocation
alters the constitutional meaning of "aliens" or "judicial power of the Commonwealth" or
both.
67. Many constitutional lawyers - probably the great majority of them - now accept that
developments inside and outside Australia since 1900 may result in insights concerning
40 the meaning of the Constitution that were not present to earlier generations. Because of
those insights, the Constitution may have different meanings from those perceived in
earlier times. As Professor Ronald Dworkin has often pointed out, the words of a
Constitution consist of more than letters and spaces. They contain propositions. And,
because of political, social or economic developments inside and outside Australia, later
45 generations may deduce propositions from the words of the Constitution that earlier
generations did not perceive. Windeyer J made that point persuasively in Victoria v The
Commonwealth[65]. But that is a very different process from asserting that the
Constitution must be read to conform to or so far as possible with the rules of
international law. As I earlier pointed out, reading the Constitution up or down to
p 535 9-3-2009
p536
conform to the rules of international law is to make those rules part of the Constitution,
contrary to the direction in s 128 that the Constitution is to be amended only in
accordance with the referendum process.
68. The issue in Polites[66] shows what would be the effect of reading the Constitution to
5 conform with the rules of international law. It was arguably a rule of international law in
1945 that aliens could not be compelled to serve in the military forces of a foreign state in
which they happened to be. Whether or not such a rule existed[67], this Court refused to
read the constitutional powers with respect to "defence"[68] and "aliens"[69] as subject to
such a rule. If the Court had accepted the argument of the plaintiff in Polites, the
10 international law rule would have become a constitutional rule contrary to s 128 of the
Constitution.
69. Failure to see the difference between taking into account political, social and economic
developments since 1900 and taking into account the rules of international law is the
error in the approach of those who assert that the Constitution must be read in conformity
15 with or in so far as it can be read conformably with the rules of international law. Rules
are specific. If they are taken into account as rules, they amend the Constitution. That
conclusion cannot be avoided by asserting that they are simply "context" or elucidating
factors. Rules are too specific to do no more than provide insights into the meanings of
the constitutional provisions. Either the rule is already inherent in the meaning of the
20 provision or taking it into account alters the meaning of the provision. No doubt from
time to time the making or existence of (say) a Convention or its consequences may
constitute a general political, social or economic development that helps to elucidate the
meaning of a constitutional head of power. But that is different from using the rules in
that Convention to control the meaning of a constitutional head of power. Suppose the
25 imposition of tariffs is banned under a World Trade Agreement. If that ban were taken
into account - whether as context or otherwise - in interpreting the trade and commerce
power[70], it would add a new rule to the Constitution. It would require reading the
power to make laws with respect to trade and commerce as subject to the rule that it did
not extend to laws that imposed tariffs. Such an approach, in the words of Dixon J, cannot
30 be "countenanced"[71].
END QUOTE
Again;
QUOTE
If this Court had to take a rule of international law into account in interpreting those
35 powers, the rule would either confirm what was already inherent in the powers or add to
or reduce them. If the international rule is already inherent in the power it is irrelevant. If
it is not, its invocation alters the constitutional meaning of "aliens" or "judicial power of
the Commonwealth" or both.
END QUOTE
40 .
The point is that albeit International law of late cannot be used to determine the powers and
limitations of constitutional provisions, International law as existing at the time of Federation can
be used to explain the intentions of the Framers of the Constitution, this, as the Framers of the
Constitution themselves were debating the issue of how it applied under international law.
45 Further, International law provisions that came after the Federation can not be applied to expand
or otherwise alter the true intentions of the Framers of the Constitution but may be an aid to the
scope of legislation passed since Federation. As such, it does not impinge upon constitutional
provisions at all, but is to be considered as to what was applicable at the time of constitutional
p 536 9-3-2009
p537
valid legislated provisions how they could be applicable within the framework of the
Constitution.
.
5 QUOTE
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
10 established." Honorable members will therefore see that the application of the word
are going to create under that Union. The second part of the preamble goes on to say that it
15 That is, for admission into this political Union, which is not a republic, which is not to
END QUOTE
.
20 [ 1275] 3 Edward I {State of Westminster the First} C.V. whose law, adopted and enacted
in the Imperial Acts Application Act 1980 –
.
PART II – TRANSCRIBED ENACTMENTS STATES:
QUOTE
25 - And because elections ought to be free, the King commandeth upon great fortfeiture,
that no man by force of arms, nor by malice, or menacing, shall disturb any to make
free election.
END QUOTE
.
QUOTE
Mr. KINGSTON:
The 4th resolution raises the question of defence, and I am disposed to think that a more
prominent position might well have been given to this question than it occupies. I am not
35 going to discuss the details of possible provisions on the subject which may be considered
necessary to be embodied in the constitution. An hon. member has already addressed
himself to that question; but it seems to me that every citizen, or every person worthy of
the name of citizen, recognises it as his duty in time of [start page 157] war to take up arms
in defence of his country. It is almost a corollary of that proposition, that it is the duty of
40 every true citizen in time of peace to qualify himself to render efficient service in time
of need without unnecessary expense to the community of which he is a member. I
trust that our federal legislation will recognise the soundness of the principles which I
venture to lay down, and that effect will be given to them at the earliest possible moment. I
am hopeful, indeed, that when we have legislation of that character its results will be
45 apparent in the manhood of united Australia, and that it will add alike to the dignity and
safety of the nation and be productive of the happiest results.
END QUOTE
And
QUOTE
50 Mr. FITZGERALD:
p 537 9-3-2009
p538
With regard to the defence of Australia, in what could federation do more practical good
than in defence? In what matter can there be a greater necessity for one headship than in
defence? The points which must be defended, which strengthen us in these colonies, are far
distant, and how can we efficiently or economically defend them, except by having a
5 united force-a force which will be under one head, and which will be ready at any point,
should our country ever be invaded. Reference was made to a standing army. A standing
army! What a reflection upon the military spirit of young Australia. A standing army we
may have merely as an example of what steadiness, discipline, and obedience can do; but
our defence must be the stout arms of our sons-our own sons as a militia, charged with
10 the duty of defending that land which they ought to love, and inspired by the devotion of
those men who may be paid servants of the Crown, but who never, either in this country or
in the old country, turned their back on an enemy, or did anything but what will redound to
the glory of English arms.
END QUOTE
15 .
Hansard 10-3-1891
QUOTE
Mr. DIBBS: South Australia underwent a different, I may say a Caesarian,
operation in its birth. The inheritance which its people now possess was cut out from
20 the vitals of the parent state. But, taking the colonies of Australasia as a whole, we
may say that New South Wales is in the position of a parent towards them.
END QUOTE
And
QUOTE Mr. DIBBS:
25 The question of creating a standing army is one which, to my mind, is almost more
repulsive than the question of readjustment of territorial boundaries. It means the
existence in our midst of a certain number of idle men-men sharpening their knives and
their swords for the first fitting opportunity of fleshing them on the people of their own
country, because we have no other enemies. We, in Australia-federated Australia, I may
30 take it, because the matter is one which applies to the whole-have no enemies within our
borders; we have no Indians to dispute with us the possession of the soil; we have no
powerful Maori race, to fight, as was once the case in New Zealand, for the territory the
right to which belonged to the Maoris themselves. We have no enemies within, and the
only thing we have to fear is the possibility of any assault on the mother country by
35 her enemies from without, unless indeed the creation of a standing army proves a
menace to the people of Australia by the existence of an armed force for unlawful
purposes. This question of the creation of a military force is one of the blots upon these
resolutions. We want no military force within New South Wales. All we want to do is to
make every man who is either a native of the soil, or one of ourselves by reason of his
40 taking up his residence amongst us, prepare to resist possible invasion from without.
Who are our enemies? Who are our enemies but the enemies of England, and they, so
long as we remain under the Crown, will be dealt with by an outer barrier, an outer
bulwark in the defence of Australia, in the shape of the navy of Old England. But we
have no enemies within, and there is no necessity to fasten the curse of a standing army
45 upon us. As was pointed out by the hon. member, Sir George Grey, yesterday, in his
interesting speech, we have no necessity to keep a large standing army at a large cost to the
people of the country, [start page 185] when we have no enemies with whom they will
have to fight. Our own police are quite sufficient for the preservation of order within.
In the event of invasion from without, so long as we remain under the Crown, our enemies,
p 538 9-3-2009
p539
being the enemies of England, will be dealt with before ever an attempt is made to invade
these shores; and when the day of invasion comes the people of this country will rise as one
man to defend their hearths and homes from any possible aggressor. I look upon the
question of the creation of a military power within a territory under the Crown as a
5 menace to the people who are to continue as British subjects. We have been sent here by
our various parliaments to frame a constitution under the Crown-under the Crown, bear in
mind. That is the idea which has been put forward in every speech that has been made. I
presume, then, that the members of the Convention are prepared at once to give the go-by
altogether to the idea of imperial federation. So long as we remain in our present
10 position as individual colonies, we are imperially federated, and we can be imperially
federated in no stronger manner than in connection with our relation to the mother
country. We are as much imperially federated as the people living in the cities of London,
Liverpool, Manchester, or other large centres of population. We are a portion of the
British Crown, joined together by the most solemn ties and obligations; and we have
15 to bear the brunt of any misfortune which may fall upon us in connection with any
attack upon our shores by reason of our enemies being the common enemies of
England. We have already made certain provision, partially of a federal character, to assist
the Imperial Government in the protection of our shores from without; but let us set our
faces as a young nation-if I may use the word "nation" in advance-against standing armies;
20 let us set our face once and for ever against the creation of anything like a military
despotism. We are met here under the Crown, and I must say that, as one possessing
a slight tinge of republican notions, as one who sees that the future of Australia is to
be what was prophesied of it fifty years ago, by poets who have written of what the
future of Australia is to be-having a certain tinge of republicanism in my nature, the
25 result naturally of my being a descendant of an Englishman, I was surprised to find a
gentleman occupying a position under the Crown proposing what 100 years ago
would have been simply regarded as high treason. Why, the other day the hon. member,
Mr. Munro, made a proposal with regard to one phase of the question which made me
ejaculate, "One strand of the painter has gone."
30 END QUOTE
And
QUOTE Sir JAMES LEE-STEERE:
Therefore we require in proportion a larger amount of revenue for that purpose than is
required in the other Australian colonies. Unlike the hon. member who last addressed [start
35 page 194] us, I feel no difficulty in giving my concurrence to resolution No. 4. I do not
think it will be apparent to many hon. members that resolution No. 4 points in any
degree whatever to a standing army. It does not do so in my view; and I am sure it
was not intended to do so. The intention, I take it, is this: that we should maintain a
permanent force or a militia, which would be available in time of danger, and with
40 which we might be in a position to assist the mother country in her defence of this
portion of her dominions. I myself, and most hon. gentlemen here, would feel humiliated
if, on war breaking out between the mother country and some other power, we had to call
upon her to send a force here to defend our hearths and homes. It is our desire that we
should not be made to feel that humiliation, and that we may be prepared, as we ought, to
45 assist the mother country, rather than ask her aid, should war at any time break out. It is
with that view that it is proposed:
That the military and naval defence of Australia shall be intrusted to federal forces, under
one command.
END QUOTE
p 539 9-3-2009
p540
And
QUOTE Dr. COCKBURN:
I will not dwell upon the question of the standing army, because that has been already
so excellently dealt with by the hon. member, Sir George Grey, the hon. member, Mr.
5 Dibbs, and others. I think that those speakers have convinced this Convention that we do
not [start page 202] want to unduly foster the military spirit in these colonies.
END QUOTE
Again;
10 QUOTE Mr. DIBBS:
Our own police are quite sufficient for the preservation of order within.
END QUOTE
And;
QUOTE
15 let us set our face once and for ever against the creation of anything like a military
despotism.
END QUOTE
.
20 QUOTE Sir JOHN BRAY:
I agree with the hon. member, Mr. Dibbs-and no one, hitherto, has been bold enough
to say that he agrees with anything that hon. I member has said-that it is not desired
to raise up a great standing army for our defence from imaginary enemies. We feel
that it is necessary for each colony to do something to provide for defence from common
25 foes; and I think we may rely that a federal parliament will do the same, and no more.
They will have no ambition to act contrary to the wishes of the Australian people,
and, as far as I know those wishes, they are not that we should rear up anything like a
large standing army. They are anxious that we should have amongst us some force which
could be relied upon in time of danger; they are willing to give their own services to
30 augment that force when the necessity arises. I hope, however, that no federal
government or parliament will ever raise any unnecessary military or naval forces in
the colonies, because they know the people are not prepared to support such a
scheme.
END QUOTE
35 Again
QUOTE
Mr. GILLIES: The colony of Victoria is prepared to join the other colonies in framing a
federal constitution, and in creating a federal parliament for the purpose of accomplishing
great and necessary federal work; otherwise she does not desire to claim anything that the
40 other colonies will not claim and obtain. Victoria [start page 226] desires, as the hon.
member, Mr. Dibbs, said yesterday, to join hand in hand with the other colonies in creating
a federal constitution, a federal parliament, and a federal government, in the confident hope
that justice will be done to all the colonies in the creation of that federation. The hon.
member seemed to think that there were some proposals in these resolutions which involve
45 such serious difficulties that it would not be possible for him to concur in them; in fact, I
think he told us that he would take care in Committee to do all that he possibly could to
take away the power proposed to be granted under the federal constitution to the federal
parliament of dealing with the very large subject of defences. The hon. member appeared
to me to think that the object indicated in these resolutions was to bring about what is
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known as a standing army, which the hon. member thought would be a menace to the
whole of the continent. Now, in one sense, all the colonies have small standing armies.
Colonel SMITH: There are altogether 31,000 men!
Mr. GILLIES: The people themselves have undertaken the duty of creating such a
5 force as, in their judgment, would be sufficient to meet any foe that might land on
these shores. There is nothing in these resolutions that I can see that would justify the
statement that it is contemplated by any colony, or by any group of colonies, or by
any individual, to bring about a standing army of such a kind as that to which the
hon. member referred-a standing army that might be a menace to the liberties of the
10 people. The people themselves have created such forces as we have, it is they who
willingly maintain them, and these resolutions contemplate no more and no less. It is
possible that when you have to consider the report of Major-General Edwards and the
reports of your own officers, it may be found absolutely necessary to make some slight
addition to the forces you already have upon this continent, and to provide that those forces
15 should be under the command of some one having the control of the whole of them. In fact,
a great deal has been written in the whole of the colonies as to the necessity for maintaining
federal force in a proper and effective condition, so that in the event at any future time-and
I hope it will be in the distant future-of a foreign force landing at any point upon the
continent, arrangements might be made by which a joint force might be concentrated at that
20 point, and so that instead of separate defences we might have one united defence of
Australia. Surely we are not to be told that, because that is in contemplation, there is
at the same time some secret purpose or object of depriving the people of their right
on any particular occasion when possibly there may be some great difference of
opinion on a great public question. There have been no peoples in these colonies who
25 have not enjoyed the most perfect freedom to express their opinions in public, and
through their representatives in parliament, on any public question of importance.
There has never been any occasion when such an opportunity has not been given to
every man in this country, and so free and liberal are our laws and public institutions
that it has never been suggested by any mortal upon this continent that that right
30 should be in any way restricted. On the contrary, we all feel proud of the freedom which
every one in this country enjoys. It is a freedom not surpassed in any state in the world, not
even in the boasted republic of America. I venture to say that there is not a colony in this
group but is so attached to its institutions and its laws, and the freedom existing under
those laws, that there need be no suspicion of any body of the kind indicated by the hon.
35 gentleman being created. It [start page 227] is impossible that the force now existing may
be increased sufficiently for the adequate defence of the shores of these colonies against
aggression; but I am astonished that the hon. gentleman should for a moment have
imagined that it was in the mind of any one of the colonies to create a standing army
of such a character as would be a menace to the liberties of the people. Those liberties
40 have been too well enjoyed and too well appreciated to permit of any body of men,
whether in a federal or in a local parliament, interfering with them, and I hope the
hon. member will release from his mind any idea that it is contemplated under these
resolutions to establish a federal force or standing army that would in the slightest
degree interfere with our liberties, or that any of us, even in imagination, had that
45 object in view.
Mr. DIBBS: The hon. member forgets that we have heard other speeches delivered in
this chamber by the mover of these resolutions!
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Mr. GILLIES: I have not heard a speech delivered in this chamber which conveyed the
opinion or idea the hon. member has suggested.
Mr. DIBBS: Not in this Convention!

Mr. GILLIES: I heard the address of the President, and I confess I should be
5 surprised if it were found possible to construe any portion of it as meaning an attack
upon the liberties of the colonies.
END QUOTE
And
QUOTE Mr. CLARK:
10 . I unhesitatingly say that, so far as the cases which come before that court are purely
Australian, the judgment ought to be final; but if a case comes before it affecting imperial
interests, or depending upon the interpretation of an imperial statute in force throughout the
whole empire, it would be absurd to talk about taking away the right of appeal to the Privy
Council. If the British [start page 254] legislature does what it has the power to do, and
15 what it has done-that is, if it passes a law for the whole empire, such as the British
Merchant Shipping Act or the Plimsoll Act-it would never listen to a proposal to take away
from its own court the right of interpreting its own acts. That, I think, is perfectly clear.
This reminds me that when hon. members talk of breaking our connection with the mother
country, or of cutting the first strand of the painter in a proposal to erect a federal Judiciary,
20 they have, it seems to me, a very hazy and imperfect notion as to what our relations to the
mother country really are. Our real relation to her as dependencies does not depend upon
our recognition of the Crown, or upon our appealing to the Privy Council. The great and
mighty fact with regard to our position in relation to the mother country is that our
legislative bodies are subordinate to the British Parliament, with their laws liable to be
25 overruled by that Parliament. That is the position in which we shall remain while we are
only a subordinate legislature-almost as subordinate to the British Government as
whether or not the name of the Queen is used in our acts of Parliament. That is really the
30 essence of the position which we hold as part of the British empire. It has been said that in
addition to the cases which involve imperial interests, and the interpretation of imperial
an article in the December number of the Contemporary Review, by one of the most
35 learned and scientific lawyers and legal writers of the present day-Sir Frederick Pollock.
He is so dissatisfied with the system of teaching law in England, that he says if it is not
very soon altered, the centre of the legal system of the Anglo-Saxon race will drift from the
of the Supreme Court of the United States for decisions on fundamental principles of the
40 common law. The American courts administer the same principles of common law that
the English courts do, and so far from its being a disadvantage to have two independent
centres of interpreters, it has been a benefit, and the common law of England has thus been
have acknowledged the benefit of, the decisions of the august tribunal on the other side of
45 the Atlantic. There is no reason why our supreme court of appeal may not produce the
same beneficent results, and enrich the stock of common law of the empire by being an
independent centre of interpretation.
END QUOTE
.
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p543
Again
QUOTE Mr. GILLIES:
; but I am astonished that the hon. gentleman should for a moment have imagined
that it was in the mind of any one of the colonies to create a standing army of such a
5 character as would be a menace to the liberties of the people. Those liberties have
been too well enjoyed and too well appreciated to permit of any body of men, whether
in a federal or in a local parliament, interfering with them, and I hope the hon.
member will release from his mind any idea that it is contemplated under these
resolutions to establish a federal force or standing army that would in the slightest
10 degree interfere with our liberties, or that any of us, even in imagination, had that
object in view.
And;
QUOTE
Mr. GILLIES: I heard the address of the President, and I confess I should be
15 surprised if it were found possible to construe any portion of it as meaning an attack
upon the liberties of the colonies.
END QUOTE
And
QUOTE
20 Mr. GILLIES: The people themselves have undertaken the duty of creating such a
force as, in their judgment, would be sufficient to meet any foe that might land on
these shores.
END QUOTE
.
25
Westminster Act 1931
QUOTE
1. In this Act the expression "Dominion" means any of the following Dominions, that is to
say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New
30 Zealand, the Union of South Africa, the Irish Free State and Newfoundland.
.
(2) No law and no provision of any law made after the commencement of this Act by the
Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to
35 the law of England, or to the provisions of any existing or future Act of Parliament of the
United Kingdom, or to any order, rule, or regulation made under any such Act, and the
powers of the Parliament of a Dominion shall include the power to repeal or amend any
such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.
END QUOTE
40 .
QUOTE
45 to, the enactment thereof.
.
5. Without prejudice to the generality of the foregoing provisions of this Act, section seven
hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act,
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p544
1894, shall be construed as though reference therein to the Legislature of a British

possession did not include reference to the Parliament of a Dominion.
.
5 6. Without prejudice to the generality of the foregoing provisions of this Act, section four
of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved
for the signification of His Majesty's pleasure or to contain a suspending clause), and so
much of section seven of that Act as requires the approval of His Majesty in Council to any
rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty,
10 shall cease to have effect in any Dominion as from the commencement of this Act.
END QUOTE
And
QUOTE
9. (1) Nothing in this Act shall be deemed to authorize the Parliament of the
Commonwealth of Australia to make laws on any matter within the authority of the States
20 of Australia, not being a matter within the authority of the Parliament or Government of the
Commonwealth of Australia.
.
(2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or
Government of the Commonwealth of Australia, in any law made by the Parliament of the
25 United Kingdom with respect to any matter within the authority of the States of Australia,
not being a matter within the authority of the Parliament or Government of the
Commonwealth of Australia, in any case where it would have been in accordance with the
constitutional practice existing before the commencement of this Act that the Parliament of
the United Kingdom should make that law without such concurrence.
30 (3) In the application of this Act to the Commonwealth of Australia the request and consent
.
10. (1) None of the following sections of this Act, that is to say, sections two, three, four,
35 five, and six, shall extend to a Dominion to which this section applies as part of the law of
that Dominion unless that section is adopted by the Parliament of the Dominion, and any
Act of that Parliament adopting any section of this Act may provide that the adoption shall
have effect either from the commencement of this Act or from such later date as is
specified in the adopting Act.
40 (2) The Parliament of any such Dominion as aforesaid may at any time revoke the adoption
of any section referred to in sub-section (1) of this section.
(3) The Dominions to which this section applies are the Commonwealth of Australia, the
Dominion of New Zealand, and Newfoundland.
11. Notwithstanding anything in the Interpretation Act, 1889, the expression "Colony" shall
45 not, in any Act of the Parliament of the United Kingdom passed after the commencement of
this Act, include a Dominion or any Province or State forming part of a Dominion.
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p545
12. This Act may be cited as the Statute of Westminster, 1931.

END QUOTE
.
The following quotation also should be considered with the High Court of Australia having
5 declared in 1996 Sue v Hill that she was not entitled to be a member of the Senate, somehow
because of the 1986 Australia Act. It is idiotic to have somehow a different meaning given to the
constitution some 10 years after the alleged event occurring. Merely because of the fictional
perceptions of the judges.
.
QUOTE
Mr. ISAACS.-That might make persons criminals who were not otherwise criminals. It
might not have been an offence to do a certain thing if the High Court declared the law to
be ultra vires, but if that law was made intra vires from an antecedent date, all the persons
15 who did that thing might be subject to punishment.
END QUOTE
.
In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey
(at p 926 of HLC (p 725 of ER)):
20 QUOTE
(T)he Legislature has no power over any persons except its own subjects, that is, persons
natural-born subjects, or resident, or whilst they are within the limits of the Kingdom.
END QUOTE
.
QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[12.42]: It may be interesting for the hon.
and learned member, Dr. Cockburn, to hear this very concise statement of the law of the
United States, which would be exactly applicable to this proposed constitution, and very
30 much on the lines that the hon. and learned member, Mr. Isaacs, has just stated. I am citing
from a well-known book, Ordronaux's "Constitutional Legislation." At page 296 he says
this:
By, parity of reason addressed to the protection of the public health, states may exercise
their police powers to the extent of prohibiting both persons and animals, when labouring
35 under contagious diseases, from entering their territory. They may pass any sanitary laws
deemed necessary for this purpose, and enforce them by appropriate regulations. It is upon
this reserved right of self-protection that quarantines are permitted to interfere with the
freedom of commerce and of human intercourse. But this power is not without its
limitations, and its exercise must be restricted to directly impending dangers to health, and
40 not to those who are only contingent and remote. Hence, while diseased persons or diseased
animals, and those presumedly so from contact with infected bodies or. localities, may be
prevented from entering a state, any general law of exclusion, measured by months, or
operating in such a way as to become a barrier to commerce or travel, would be a
regulation of commerce forbidden by the constitution. Such a statute being more than a
45 quarantine regulation, transcends the legitimate powers of a state.
So it is quite clear that all the powers are left in the state, which are necessary for the
preservation of the health of the inhabitants and of the property by the state. Those
powers would include power to deal with such diseases in the vegetable world as the hon.
p 545 9-3-2009
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and learned member; Dr. Cockburn, has spoken of, and also with animal diseases. It was
suggested in Adelaide that these powers might be used in such a way as to have a protective
influence in favour of certain states.
Mr. Symon: That would be in conflict with the constitution!
5 The Hon. R.E. O'CONNOR: I was going to point that out. There are a number of
decisions in America, as has been pointed out by my hon. and learned friend, in which
on that very ground or similar grounds it has been held that the law, not being a bona
fide exercise of the police powers, is not within the powers of the state. Of course, there
is another question behind all that, which I think is a very important one, that is,
10 considering the immense traffic, say, in cattle, that there is right across this continent, the
infrequency of habitation, and the difficulties of enforcing the quarantine laws from state to
state, whether such a disease, for instance, as the tick disease should be dealt with by the
authority of the commonwealth instead of by the states themselves. It is a very important
question, and there are many difficulties in the way of its being dealt with by the federal
15 authority. One of the chief of them is, I think, the impossibility of the federal authority
administering an act of that kind without having an enormous array of officials and
immense expenditure. As we all know, there are in each colony laws-affecting contagious
diseases of cattle or sheep, and they are all administered by local bodies, The machinery
and administration are simple, and the laws are cheaply worked in the various districts
20 themselves. But if you place them under the federal movement, to be operated by
federal officers, you render an [start page 1063] immense machinery necessary to
carry out the very simple objects which are carried out by the local bodies at the
present time. It appears to me that the balance of reason is in favour of leaving things as
they are, leaving power in the states to deal with all those matters that come under the head
25 of police powers in the United States, the infection of animals, the infection of vegetables,
the introduction of, animal and vegetable diseases. There is ample power to deal with them,
and I think that the matter might be left in that way.
The CHAIRMAN: I would point out that there is no question of quarantine or

quarantine regulations before the Committee.
30 The Hon. Dr. COCKBURN (South Australia)[12.47]: I think we should renew this debate
at some future period. In reply to the hon. and learned member, Mr. O'Connor, I may say
that I am not at all sure that our proposed constitution does not go further in reference-to
free-trade between the states than the American Constitution does, and therefore, it might
require some further provision in view of the very strong words which it contains, although
35 such a provision might not be necessary in America. Words simply prohibiting the
introduction of actual disease would not be sufficient. I admit that the decision which has
been quoted relates also to anything that has been in contact with any disease in anyway.
But it would be necessary in many cases actually to prohibit the introduction of all cattle
and all vegetables of a certain character. If Queensland were to relax her local quarantine
40 regulations, it might be necessary for the adjoining colony to prohibit a single hoof of cattle
from crossing the border, and this might be held to be an absolute derogation from freedom
of trade, unless there were special provision in the constitution dealing with it. It might be
necessary for South Australia to prevent the importation of any portion of a vine, and this
might be said to seriously derogate from freedom of trade between the colonies. I ask the
45 Drafting Committee to be exceedingly careful in the matter. I think the power does not
exist, and I am sure that it should exist for otherwise we should find that the opposition to
p 546 9-3-2009
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this constitution bill, if it is assumed that there is no such power given, would be of a very
fierce and vehement character.
END QUOTE
.
5 Then consider Hansard2-3-1898 Constitution Convention Debates;
QUOTE
among which would probably be the right to negotiate for commercial treaties with foreign
10 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
END QUOTE

QUOTE Mr. THYNNE:
I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
20 above and beyond the ordinary legislative bodies, whether federal or state
legislatures, existing under the constitution.
END QUOTE
.
25 QUOTE The Hon. J.H. HOWE:
Is it to be the Premier of New South Wales or Mr. Barton who is going to introduce a
measure for old-age pensions when he has the power to do so by the Constitution we give
to the Federal Parliament?. I do not think it is necessary for me to say any more. The words
I have quoted are better than any I could speak. My only desire is to give power to the
30 Federal Parliament to achieve a scheme for old-age pensions if it be practicable, and if the
people require it. No power would be taken away from the states. The sub-section would
not interfere with the right of any state to act in the meantime until the Federal
Parliament took the matter in hand. I do not believe in provincialism so far as old-age
pauperism is concerned. In these colonies men are born in one state, spend their manhood
35 and best days in another, and then return, broken down and unfortunate, to the land of their
birth, which owes them nothing. Is it to be contended that under such circumstances the
state of the unfortunate man's birth should be compelled to support him? Surely the support
of the aged poor could be better accomplished by a Federated Australia. Wherever a man
may roam within the boundaries of Federated Australia, he should know that in his old age
40 be need never fear the pauper's lot. I would compel every able bodied man, in the heyday of
youth, when he has the means, to make a compulsory contribution towards a fund out
of which provision would be made for his old age. That is another reason why the federal
authority should take it instead of the state, because within the bounds of Federated
Australia a law can be enacted compelling that individual who is to receive the benefit to
45 contribute to the fund in which he is to participate in old age. I have much pleasure in
bringing forward this motion again, because I am assured that those who reluctantly voted
against me before will vote with me on this occasion.
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p548
END QUOTE
.
JAMES ANDREW McGINTY AND OTHERS v THE STATE OF WESTERN

AUSTRALIA F.C. 96/001
5 QUOTE BRENNAN CJ
The relationship between the Commonwealth Constitution and the Constitutions
of the States
17. Section 106 of the Commonwealth Constitution reads:
10 " The Constitution of each State of the Commonwealth shall, subject to this
Constitution, continue as at the establishment of the Commonwealth, or as at
the admission or establishment of the State, as the case may be, until altered
in accordance with the Constitution of the State."
15 This section has a dual operation. Its first operation is to prescribe what
the new elements of the Federal polity - the States - shall be. When the
people of the Australian Colonies were united in the Commonwealth of Australia
by the proclamation made pursuant to Covering Clause 3 and those Colonies
became Original States of the Commonwealth by operation of Covering Clause 6,
20 the Colonies - the old constitutional entities - acquired a new constitutional
status. They became States, as the text of ss 107 and 108 shows, deriving
their existence as States from the Commonwealth Constitution(30). Secondly, s
106 conferred on the respective States substantially the Constitutions of the
antecedent Colonies(31). The same Constitutions as had been conferred on the
25 Colonies prior to 1 January 1901 were continued as the Constitutions of the
respective States thereafter, subject to such modifications as were effected
by the Commonwealth of Australia Constitution Act 1900 (Imp) and the
Constitution of the Commonwealth. As Barwick CJ said in New South Wales v The
Commonwealth(32):
30
"On the passage of the Imperial Act, those colonies ceased to be such and
became States forming part of the new Commonwealth. As States, they owe their
existence to the Constitution which, by ss 106 and 107, provides their
constitutions and powers referentially to the constitutions and powers which
35 the former colonies enjoyed, including the power of alteration of those
constitutions. Those constitutions and powers were to continue by virtue of
the Constitution of the Commonwealth."
.
40 18. Although the States owe their existence to the Commonwealth Constitution
and although their respective Constitutions in 1901 were conferred by
operation of s 106 of the Commonwealth Constitution, the powers vested in the
respective State legislatures were subject not only to the other provisions of
the Constitution but also to the limitations which had been imposed on the
45 powers of the antecedent colonial legislatures(33). The Australian Colonies
did not retain their colonial status for the purposes of the constitutional
law of the Commonwealth, but their general legislative and constituent powers
then remained amenable to affection by laws enacted by the United Kingdom
Parliament(34). That amenability to affection by Imperial legislation was
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removed only by the enactment of the Australia Act 1986.

.
19. In 1901, s 107 of the Constitution confirmed what s 106 might itself have
5 provided, namely, that such power as a State Parliament possessed to alter its
own Constitution(35) pursuant to the manner and form provisions of its
Constitution and to alter those manner and form provisions themselves(36)
remained(37). Thus the "manner and form" provisions of the State
Constitutions are retained as they were on 1 January 1901 or as they have been
10 altered subsequently in accordance with any relevant manner and form
provisions in force at the time of the alteration. It follows that the
Constitution of a State at any time must be ascertained by reference to (i)
its Constitution as at Federation; (ii) the overriding effect of the
provisions of the Commonwealth of Australia Constitution Act and the
15 Constitution of the Commonwealth; (iii) the modifications of the State
Constitution that have been made either by Imperial legislation or State
legislation provided, in the case of State legislation, it has been made in
accordance with any relevant manner and form provisions of the particular
State Constitution(38); and (iv) the Australia Act 1986. It is possible that a
20 law of the Commonwealth could affect the Constitution of a State in some
particular but not so as to curtail the continued existence of the State or
the capacity of the Government of the State to exercise its functions(39).
END QUOTE
.
QUOTE
Mr. BARTON: I rise to move the following resolutions
That, in order to enlarge the powers of self-government of the people of Australia, it is
desirable to create a Federal Government which shall exercise authority throughout the
30 Federated Colonies, subject to the following principal conditions:-
I. That the powers, privileges, and territories of the several existing colonies shall remain
intact, except in respect of such surrenders as may be agreed upon to secure uniformity of
law and administration in matters of common concern.
END QUOTE
35 .
QUOTE
Mr. REID.-There is one good thing about it-and I think my honorable friend, as the
President of a Legislative Council, will agree with me here-it never allows Judges to undo
40 acts of legislation because some clever lawyer has found some small flaw in them. If the
clause is passed as it stands, it will create a new form of industry. What prospects of [start
page 2031] notoriety it will give to ambitious sucking lawyers, who, by scanning Acts of
the Federal Legislature, might be able to discover flaws upon which to raise points before
the High Court. What a preposterous position it will be if, because of the infringement by a
45 hair's breadth of line 3 of sub-section (4) of section something else, an Act of the Federal
Parliament is set aside.
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Dr. COCKBURN.-Then you had better not have a written Constitution, because
such a possibility is inseparable from a written Constitution.
END QUOTE
And
5 QUOTE
Mr. HOLDER.-I do not want to reflect on a vote of the committee; but I simply want to
point out what the consequences of the vote are, so that I may with more effectiveness
make a suggestion which I think we must adopt to get over a difficulty I see. It seems to me
we are willing rather to hand over the interests of our respective states to the High Court,
10 with all its technicalities and all its legalities, than to hand over the determination of these
questions to the Federal Parliament. I want to ask honorable members whether they want to
go this far, to say, if the court may go and upset on technical issues any Acts which the two
Houses have passed, and the Governor-General has assented to, that the right to upset these
laws shall not be a right open for all time? I can fancy the Federal Treasurer being
15 almost unable to sleep with this thing like a nightmare hanging over him.
Mr. BARTON.-We do not want to pass a Constitution as a cure for insomnia.

Mr. HOLDER.-We do not want to pass a Constitution which will take sleep away from
any man, or create a perpetual nightmare.
END QUOTE
20 .
QUOTE Mr. TRENWITH (Victoria)[4.55]:
The outlying parts found this form of government irksome, because of the distance they
were from the seat of government, and the impossibility of knowing at the seat of
25 government adequately the requirements of the outlying parts. Consequently, separation
took place, and the colonies developed, under this system of separate independent
government, a degree of considerable importance; and, as they increased in importance,
they discovered there were questions, important to them as colonies, that they could not
satisfactorily settle singly. Therefore, there arose the necessity for common action, not with
30 reference to all the forces of government, but with reference to important governmental
questions. What does that involve? It seems to me to involve for these purposes-the
purposes that the states cannot themselves singly settle united action; not a united action
from which anyone or any number of the states can withdraw when it seems to them
desirable; but, once having admitted that certain points can be better dealt with by the
35 whole than by part, it seems to imply for these purposes unification. It seems to me that
whether we call it federation or not, we require for national purposes a strong unified form
of government. Our early experience taught us that unification for all the, purposes of
government was not desirable, and thus there is in our midst, and in all the colonies, a
strong determined feeling that while we have federation we [start page 604] must still
40 maintain the sovereignty of the states. There are some who urge that the sovereignty of
the states for state purposes necessarily implies the sovereignty of the states in larger
national questions. I have no hesitation in expressing the opinion that state rights can only
be preserved, the sovereignty of the states can only be preserved, by handing matters over
to the federal parliament which cannot be dealt with by the states themselves by making the
45 federal objections as few as possible, but having decided what is federal, leaving the federal
power sovereign with reference to that. Thus we create two distinct governmental
entities. We leave sovereign states with power to deal altogether apart from federal
interference with such questions as they refuse to hand over. Then we create a federal
p 550 9-3-2009
p551
power sovereign within its own realm, competent to deal without the interference of the
states as states with questions that are handed over to it. Any other form of government will
not give us what we require as shown by a review of the history of our colonies. Having in
view the influence of this proposal upon the possible success of this federal movement, I
5 should like briefly to review the attitude of the people of Australia with reference to their
rights and powers as citizens. In each of the Australian colonies we began with a
comparatively restricted franchise, and we developed a system of plural voting. In several
of the colonies the franchise has been made complete, unrestricted, and plural voting has
been abolished; thus we see the tendency is to demand in the states equal rights as citizens.
10 There can be no disputing that that tendency is growing. It has been recognised that that
tendency is growing, so that the principle of manhood suffrage, and the possibility of adult
suffrage have been placed in this bill. Now, let us look at what we are doing. We are
creating a dual citizenship, a citizenship which makes a man a citizen of his state and a
citizen of the commonwealth. Experience has shown us that the citizens in the state will
15 not brook unequal citizenship-they will not brook one voter having more power than
another voter. We have acknowledged that to be so by creating, with reference to the
election of senators and members of the house of representatives equal powers to the states
within their states. Now, have we any right to assume that when we create another form of
citizenship the commonwealth citizenship the same man who would not brook unequal
20 citizenship in the state will submit to unequal citizenship in the commonwealth?
The Hon. H. DOBSON: It is a dual concern!
Mr. TRENWITH: I am dealing with the true form of citizenship. From the inception of
the commonwealth, if we are successful in establishing one and it depends largely upon
whether we deal wisely or unwisely with this proposal whether we shall be successful when
25 we have established the commonwealth, every man inside the commonwealth, in addition
to being a, citizen of a state, is a citizen of the nation that is created out of this effort.
The Hon. H. DOBSON: You want the citizen of the state to be merged into the citizen
of the nation!
Mr. TRENWITH: I want him to retain his dual position; but, in relation to it, to
30 maintain a proper principle of equality with each other citizen. As a citizen of the state
equal with any other citizen of the state, and the citizen of the commonwealth equal with
any other citizen of the colony.
The Hon. H. DOBSON: But is he to merge or not?

Mr. TRENWITH: He is not to merge.
35 END QUOTE
.
QUOTE Sir HENRY PARKES,
Why, then, it may be asked by some, but not by many, I should think, do we seek to create
40 another government? I shall endeavour in a few words to answer the question I put. We
seek to create another government, because we have arrived at a time when we have found
by many telling circumstances that these separate governments, however efficient and
satisfactory they may be in working out the internal affairs of the respective colonies, are
not adequate for the larger duties which now devolve upon us as an Australian people. I
45 will endeavour to point out how it is that these governments cannot work out the destiny of
Australia from the point at which she has arrived by her own enterprise, her own foresight,
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her own industry, and her own never-failing energies. There are a number of things which
no one of the separate governments can by any possibility do, and those things are amongst
the highest objects of government. The separate governments cannot by any possibility
efficiently conduct the defence of these Australian colonies. It is no use for me to attempt to
5 argue this subject, because I apprehend that gentlemen around me will readily admit it. The
ground has been gone over frequently. It has been gone over by men possessing an intimate
knowledge of the subject, and a very forcible and lucid power in explaining that
knowledge; but I may be pardoned the assertion that it is simply impossible for the defence
of these colonies to be conducted in the future on any other than a federal basis. This
10 brings me to the question of whether forces for the military defence of this country are
necessary. Those who have watched my course in public life must know, everybody
must know, that I am one of those who think that no single unit of the human family
should be employed as a soldier unless it is necessary so to employ him, especially in a
new country, where nature has to be subjugated, where the path of industry lies open
15 on every [start page 316] hand, inviting every able-bodied man; the worst use we can
make of a man is to employ him as a soldier; and anybody who supposes that I have
held any other doctrine at any period of my life must be woefully mistaken. At the time
of the Crimean war I was amongst the very first men in all Australia who hailed the
volunteer movement, I was amongst the very first who expressed accord with it. It is more
20 than thirty years-I think fully thirty-four years since I carried in the legislature of this
country a series of resolutions in favour of the country being defended by her own sons,
and now I hold those views as I did in my youth. But I have learnt that it is a delusion and a
dream to suppose that because this queen land of Australia lies surrounded by peaceful seas
we are not likely to suffer aggression. I do not need history to teach me, a fair
25 knowledge of human nature teaches me, that at a time of war there will be plenty of
wolves to find out that some lamb or other has muddled the stream-plenty of persons
to pick a quarrel with the most inoffensive of states. Beyond all that, I do not think that
we are ever likely to suffer from any of the forms of warfare such as have been known to
our forefathers. But I think it is more than likely, more than probable, that forms of
30 aggression will appear in these seas which are entirely new to the world, and I have not
forgotten that it was a saying of one of the profoundest thinkers on human affairs that
probably ever lived the first Napoleon-that if the Chinese nation ever learnt European arts-
the art of ship-building and the art of navigation-they would be strong enough to conquer
the world. I am not one of those who are frightened or in any way induced to forsake the
35 path to which my judgment directs me by being told that this is a visionary dream. I firmly
believe that that marvellous nation is awakening to all the realities of modern civilisation.
We have evidence abundant on all hands that the Chinese nation and other Asiatic
nations-especially the Chinese-are awakening to all the powers which their immense
population gives them in the art of war, in the art of acquisition, and all the other arts
40 known to European civilisation, and it seems to me-and, non-professional man as I
am, I venture to throw it out-that if we suffer in this direction at any time, it will not
be by the bombardment of one of our rich cities-it will not be by an attack upon our
sea-borne commerce-it will not be by any attempt to lay us under a ransom to protect
our property and our lives, but it will be by stealthily, so far as movements of this
45 kind can be made stealthily, effecting a lodgment in some thinly-peopled portion of
the country, where it would take immense loss of life and immense loss of wealth to
dislodge the invader. I think that the new form of warfare from which we may suffer
is almost certain to take that form, and I venture to say that the progress of events
during the next few years will convince many that I am not suggesting this form
50 without good reason for believing in its valid probability. I therefore think that in this
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question of defence alone it will be well for the smaller colonies to consider how much they
have at stake. With our great wealth, with our great population, with more of the elements
of a nation than any other colony, except our sister Victoria, we have only 700 miles of
coast to defend; but that is not the case with the larger colonies; and that they are liable to
5 have to secure their defence, I think, must be self-evident to any one who will calmly think
on the subject. In connection with this question of defence I may as well hint at what most
of the delegates must know, that amongst the powerful parties in the mother country and
the feeling in this particular respect, is spreading from that party to others, there is a very
strong conviction that the [start page 317] money of the heavily taxed citizens of the
10 United Kingdom ought not to be expended in the defence of Australian citizens who
are so much better able to defend themselves. That forms an article of the political
faith of one section of the political life of England, that no portion of the revenue
contributed by the poor struggling people of England should be expended in
supporting the defence of these distant colonies. How far that feeling may come into play
15 in future it is not for me, nor is it for any one else here, to foresee; but it is not likely to
disappear from the region of English politics. It is not likely to grow weaker, but it is likely
to grow more powerful. I asked and tried to answer the question just now, what really is the
very nature of government, its essential conditions and its essential functions? It is an
organism, as I have tried to explain, for protecting each individual citizen in the
20 undisturbed possession of his property, in the undisturbed possession of his liberty, and
from my point of view the expense of that government ought to be defrayed in the easiest
manner and only to the extent which is necessary for that purpose, and that taxation is
unjustifiable for any other purpose whatever.
END QUOTE
25 And
QUOTE
Mr. PLAYFORD: It appears to me that if we attempt to make constitutions for all
the Australian colonies we shall be going outside our functions. I do not understand that
we were sent here to draw constitutions for the various Australian colonies; and I can
30 assure the hon. member, Sir George Grey, that, as far as the Constitution of South Australia
is concerned, we drew it ourselves, and if we are not perfectly satisfied with it, we have the
power, under certain restrictions, to amend it ourselves. We do not want the assistance of
this or any other body in amending our Constitution, and I believe it is the same with regard
to the various other colonies. With reference to the particular proposition that we are
35 considering, I look upon it as only declaratory on our part as to what shall be the principle
on which the drafting of the bill shall proceed. When we first met in Melbourne two forms
of constitution were promulgated, one based on the Canadian Constitution, and the other
not so based. The first idea was to have a constitution in which the powers of the local
legislatures were strictly defined, the residuum of power to rest entirely with the federal
40 government. At that time I objected to that, and pointed out that we should most strictly
define and limit the powers of the central government, and leave all other powers not so
defined to the local legislatures. This is all that the proposal declares: That the draftsman
shall lay down all such powers as are necessary for the proper conduct of the federal
government, and not interfere in the slightest degree with any other powers of the local
45 legislatures.
END QUOTE
And
QUOTE
Mr. MUNRO: As I understand the hon. member, he desires that this Convention
50 shall give to the local governments of these colonies the same powers as were given to
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them by the British Parliament originally in their constitutions. If that is what the
hon. gentleman means, I do not think we have the power to do so. All that we are
asked to do is to draft a constitution for a federal government. I am afraid the hon.
member misunderstands the real position of the Constitution of these colonies.
5 END QUOTE
And
QUOTE
Mr. DEAKIN: I trust that the remarks of hon. members will be accepted by the hon.
member, Sir George Grey, in the spirit in which they are made. I am [start page 335] sure
10 no representations from any colony would receive more consideration than those coming
from New Zealand, and that no member of the Convention would be listened to with more
attention and with a greater desire to make concessions, than the hon. member, Sir George
Grey. The difficulty is that first of all we have no authority in our commission to enter
upon the question the hon. member desires us to deal with. If we accept the argument of
15 the hon. member, Dr. Cockburn, that inasmuch as the representation in the senate will
possibly depend to some extent upon the upper houses of the colonies, we should take into
consideration the constitution of those upper houses, it needs very little reflection to
indicate that we must on the same grounds commence to consider the whole electoral
systems of all the colonies, and having decided upon the ideally best system, then propose
20 to alter the laws of the different colonies accordingly. But we are not sent here for that
purpose. We are sent here, as the hon. member, Mr. Playford, truly said, to frame a
federal constitution, and we are authorised to undertake no other task. If the hon.
member, Sir George Grey, will pardon me, it seems to me that his language was capable of
being misunderstood. He said that if this Convention were to neglect to take the course
25 which be advised, we should be imposing on New Zealand a nominee house, from which it
desires to be freed. Surely that is an over-statement. This Convention imposes nothing
upon anybody. It interferes in no sense with the constitution of any colony, and in no
sense lessens any existing power of altering the constitution of any colony. If we
commenced any such thankless labour we should place ourselves in this anomalous
30 position: that having been sent here to frame a federal constitution for the whole of
Australia, we should offer it to the colonies on condition that they alter their existing
constitutions. Surely that is something we are not justified in attempting. We are not
entitled to impose any conditions upon the acceptance of a federal constitution. This
will surely involve sufficient difficulties without our adding to them. I say this because I
35 cordially sympathise both with the spirit and object of the remarks of the hon. member, Sir
George Grey; and if I could bring myself to believe that it was within the scope of our
authority to undertake the task which he proposes, I would cordially join with him.
Sir GEORGE GREY: Leave it to the law officers of the Crown!

Mr. DEAKIN: We are obliged to leave it to those who are more interested-the
40 people of the several colonies under the constitutions which they now enjoy.
END QUOTE
And
QUOTE
Mr. WRIXON: With regard to the point brought forward by the last speaker, it is
45 undoubtedly worthy of attention but I would submit to the hon. gentleman that it is
somewhat premature to raise the question just now. All that the resolution does is to lay
down the general principle that the states shall retain everything except what it is
agreed they shall surrender to the central government; and it is impossible to say what
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that surrender will include until we have finished our task-until we have gone through the
[start page 338] whole of our measure, and determined what matters the states shall retain
to themselves, and what matters shall be conceded to the central government Therefore I
submit that it would be premature now in this introductory statement of a general principle,
5 to go on specifying either territorial or any other rights. This is merely a sort of introduction
to what we are afterwards to do, and it says "in respect of such surrenders as may be agreed
upon"-that is, hereafter, and not while we are now discussing. As to the point mentioned by
the hon. member about the rights of territories, I quite agree with him that it is important
that a clause dealing with that question should be inserted in the bill hereafter, and the
10 words the hon. gentleman suggested from the American Constitution will be well worthy of
attention but at present the proposal seems to me to be premature. As to what has been said
by the hon. members, Sir George Grey and Mr. Macrossan, I hope they will not understand
that we at all under-value the importance of their suggestion. The simple view which we
all take in this Convention is that we have no commission to deal with it.
15 Sir SAMUEL GRIFFITH: With reference to the use of the word "surrender," I think I
can state the reason that induced Sir Henry Parkes to use that term. I believe the
constitutions of all the colonies-certainly those of the older ones do-contain an express
provision that the legislatures of those colonies shall have power to "make laws for the
peace, order, and good government of the territory in all cases whatsoever." That is
20 practically autonomy. Consequently, any powers given to the federal parliament must
involve a surrender of some of those autonomous powers. Therefore, I understood that
Sir Henry Parkes thought that this was the aptest word by-which to express the relationship
of the states to the federal government-they are surrendering some of their present absolute
powers to the federal parliament. With respect to the suggestion of the hon. member, Mr.
25 Barton, that we should amend this resolution by inserting further limitations before we are
in a position to frame a constitution, I would respectfully submit that we are by no means in
a position to begin the draft of a federal constitution, nor shall we be even when we have
passed these resolutions. There are at least some scores of subjects which must be defined
by discussion.
30 Mr. WRIXON: By resolutions!
Sir SAMUEL GRIFFITH: Yes, by resolutions as an instruction to the framers of the

draft. But for the purpose of framing those resolutions the propositions now before us, as I
understand, are intended as guide-posts in the first instance. One of the first things to be
done will be, as was done in the United States, to classify the powers to be surrendered to
35 the federal parliament. It, is impossible, at this stage of the discussion, to define those
powers; but this resolution indicates the test that is to be applied as each subject comes up
for consideration: " Is it necessary, or is it incidental, to the power and authority of the
federal government?" If we affirm that principle, we shall easily be able to apply it, though,
as to the mode of application, opinions may differ, and we shall then be able to proceed to
40 the next step.
Mr. MUNRO: Would not the word "or" be better than the word "and"?
Sir SAMUEL GRIFFITH: I should say so; but that may be simply a misprint. On this
point I hope I shall not be considered as doing too much if I mention that a few months ago
it became the duty of the Government of Queensland, in consequence of the state of things
45 there, to consider, as a practical matter to be dealt with within our own boundaries, what
were the proper subjects for a central parliament to deal with as compared with [start page
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339] those that should be left to local parliaments. The Government were, under the
circumstances, obliged to make out a list-a tolerably complete one, I believe-of the different
subjects for legislation and for executive government. Although it was not prepared in view
of this Convention, and although it does not indicate the lines upon which we should
5 advocate that the functions of a national Australian government should be defined, I believe
it is a tolerably complete list of the subjects which will have to be assigned by us to one
authority or the other, and if any hon. members can find any advantage in perusing it, it is
at their disposal. I think that what we should do, after disposing of these resolutions, which
I would suggest should not be amplified more than is necessary, is to appoint a committee,
10 charged with the duty of preparing a second series of resolutions, founded upon and
springing out of these.
Mr. PLAYFORD: Draft the bill on these resolutions!
Sir SAMUEL GRIFFITH: They are not sufficient to draft a bill upon. No committee
would know the opinions of the Convention sufficiently to be able to draft a bill upon these
15 resolutions.
Sir PATRICK JENNINGS: Why not amplify them?
Sir SAMUEL GRIFFITH: They must be amplified to a very considerable extent.

Suppose a committee framed a bill upon these resolutions, and it turned out that half the
principles contained in it did not commend themselves to the Convention, they would have
20 to do their work over again. I, for one, do not desire that anything of that sort should
happen, and I think that it is necessary that there should be an intermediate stage between
the adoption of these resolutions and the drafting of a constitution. I have had some
experience of this sort of work, and I know that unless we are aware beforehand what are
the lines upon which the Convention wishes the constitution to run, it will be impossible for
25 a committee to frame one.
Mr. PLAYFORD: These are the lines!
Sir SAMUEL GRIFFITH: These are some of the lines, the elementary lines; but there
are a great many other things to be determined. For instance, what are the subjects which
are to be left to the federal government? There will have to be an enumeration of twenty or
30 thirty subjects,
END QUOTE
And
QUOTE
Mr. THYNNE: Before we can deal with the resolution practically it will have to be
35 subdivided. Several subjects are comprised in it, to which separate and independent
consideration will have to be given. It seems to me that the suggestion which fell from the
hon. member, Sir George Grey, has not received that amount of attention which it deserves.
When we are considering the preparation of a federal constitution, one important element in
the consideration is of what items is the federation to be composed, and each circumstance
40 affecting the separate elements of which the constitution is to be constructed is of
considerable importance. But there is one matter which I should like to suggest for the
consideration of the hon. member, Sir George Grey, in connection with his great
desire to alter the constitutions of these colonies where they have nominee upper
houses, and it is this: No doubt the constitution which is framed by this Convention
45 will have to go to the parliaments of each of the several colonies, and will have to be
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indorsed by them before it can come into operation; but I would point out to the hon.
member that there will be quite as much difficulty in getting a federal constitution
containing the clauses which he desires to see inserted in it passed by the colonies
containing nominee houses as there would be in getting similar amendments in their
5 constitutions agreed to in the separate colonies. I point this out to the hon. gentleman,
and to those who may think with him, in order that the matter may receive a little further
consideration, and the direction in which that consideration should go is this: Will it be
necessary that the constitution which we are about to frame shall be submitted to each
parliament and adopted by it, or will it be sufficient to have it submitted to conventions in
10 the separate colonies?
Dr. COCKBURN: Direct to the people!
Mr. THYNNE: I approve of its being submitted direct to the people. But if it is
submitted to the parliaments and requires their endorsement, the difficulty which I point out
will be just as great in getting the constitution adopted as would be the difficulty of getting
15 amendments made in the constitutions of the colonies which have nominee houses.
Sir SAMUEL GRIFFITH: It could not be submitted to a convention without the

consent of parliament!
Mr. DEAKIN: Or to the people without the consent of parliament!

Mr. THYNNE: Probably the constitution will be submitted to the several parliaments,
20 and then they will make provision by which conventions shall be called together in each of
their colonies, to give an affirmative or a negative vote upon the adoption of the
constitution; but of course before that can be done the parliaments will have to a certain
extent to give their approval to the federation.
END QUOTE
25 .
QUOTE
Mr. ISAACS.-It is as follows:-
No state shall make or enforce any law which shall abridge the privileges or immunities of
30 citizens of the United States, nor shall any state deprive any person of life, liberty, or
property without due process of law, nor deny to any person within its jurisdiction the
equal protection of the law.
Sir EDWARD BRADDON.-That is the Tasmanian amendment.
Mr. ISAACS.-Yes, it has been adapted by than Tasmanian Assembly to suit our altered
35 circumstances but I want to point out that it only became necessary to pass that 14th
amendment in the United States in order to provide in the Constitution for the change that
was wrought by the Civil War. The rights of citizenship for the blacks and the abolition of
slavery had been won by hard fighting, and this Article 14 had to be rammed down the
throats of the Southern States by the military provision which I referred, to in Sydney. This,
40 together with the 15th article, which goes with it, had to be passed. The object of it was as I
have stated, and that was recognised by the United States courts in the case of Strauder v.
West Virginia, 100 United States Reports, page 303. We can understand that a Constitution
should say who shall be citizens of the United States or citizens of the Commonwealth. We
can also understand that having constituted a citizenship of the nation, no state should
p 557 9-3-2009
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be permitted to abridge that citizenship, and take away any of the privileges or
immunities pertaining to citizens. What are these privileges and immunities? That very
question was dealt with in what are known as the Slaughter House cases in 1872,16
Wallace, 36, and in certain other cases. This is what the court said-
5 The right of a citizen of this great country, protected by the implied guarantees of its
Constitution, to come to the seat of government to assert any claim he may have upon the
Government, to transact any business he may have with it, to seek its protection, to share its
offices, to engage in administering its functions, free access to its sea ports through which
all operations of foreign commerce are conducted, also to the sub-treasuries, land offices,
10 and courts of justice of the several states. Another privilege of a citizen of the United States
is to demand the care and protection of the Federal Government for his life, liberty, and
property when on the high seas, or within the jurisdiction of a foreign country; the right to
peaceably assemble and petition for redress of grievances; the privilege of the writ of
habeas corpus; the right to use the navigable waters of the United States, however they
15 may penetrate the territory of the several states, and all rights secured to our citizens by
treaties with foreign nations; and the right of a citizen of the United States of his own
volition to become a citizen of any state of the Union by bona fide residence therein.
[start page 669]
Mr. GORDON.-That covers a great deal more than the question of the coloured races.
20 Mr. ISAACS.-It was intended to protect the blacks. Nobody denied these rights to the
whites.
END QUOTE
And
QUOTE
25 Mr. HOLDER.-We have no definition of citizen.
Mr. ISAACS.-No, not of the Federation. The question of the citizenship of a state is
one that will have to be worked out. It might be held to be an ordinary member of the
state, and it might not be confined to naturalized persons.
Mr. GORDON.-It might be a question of domicile.
30 Mr. ISAACS.-Yes. It is not wise to use the word "citizen" without any definition. They
took care to define it in the United States. We might use a term that would be found to be of
wider import than was intended, but, however that may be, it seems to me that it is illogical
to [start page 670] provide that a state should not make or enforce any law abridging any
privilege or immunity of citizens of other states. We ought to take out the words "other
35 states," and say that no state should abridge any privilege or immunity of any citizen of the
whole Commonwealth.
Mr. WISE.-That is not the object. This clause has no connexion whatever with the
amendment of the United States Constitution.
Mr. REID.-Will you tell us the object?
40 Mr. ISAACS.-I will wait to hear what the honorable member has to say.
Mr. REID.-Can the state laws affect any one not in the jurisdiction of the state?
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Mr. ISAACS.-It is puzzling to me why a restriction has been made in this way, that the
state is not to be at liberty to abridge the privileges or immunities of the citizens of other
states.
Mr. SYMON.-It is the essence of the Constitution that the state shall have that
5 power within its legislative jurisdiction. Every state can do that.
Mr. ISAACS.-Yes, within its legislative jurisdiction, and that consideration gives
immense force to what I said at starting, and what Mr. Trenwith said. We are giving to the
Federation certain powers of legislation, and we are reserving all others to the states.
If the Federation chooses to exercise its legislative powers within its sphere, it can over-ride
10 anything a state does.
END QUOTE
And
QUOTE
Mr. WISE.-You cannot impose exceptional treatment upon the citizens of another
15 state; that applies to everything.
END QUOTE
And
QUOTE
Mr. KINGSTON.-First and foremost of all, I too ask, as the Attorney-General of
20 Victoria asks, what is the meaning of it? But I go further and say-what right have you to
provide in this Federal Constitution for a thing of that sort as affecting the states any more
than you have in the original Constitutions of the states? There is no state Constitution,
under which any state exists at present, in which we find any such provision. And there is
no necessity for it. It seems to me to be a matter of purely state concern, and which, at
25 this period of the nineteenth century, it is seriously suggested may be necessary, in order to
prevent some high-handed and monstrous action on the part of the states, for which our past
history gives no grounds for expectation.
END QUOTE
And
30 QUOTE
Mr. KINGSTON.-Quite so; we should leave it alone. It is a fair thing in this federal
compact to provide a common citizenship, and I am prepared to assist honorable members
to do that, but as to making this clause declaratory of the intention of the framers of this
Constitution that the states shall not be allowed to act in that way as regards their own
35 citizens, when there is no ground whatever for suggesting that they will do anything of the
sort-a provision of that character is in no way necessary. By taking that step, we shall
adopt a course, in framing the Federal Constitution, which is in no way justified, and
which ought to be abandoned.
END QUOTE
40 And
QUOTE
Mr. DOUGLAS.-Then, how can a state impose a special tax on a citizen of the
Commonwealth because he happens to reside in another portion of the Commonwealth?
The thing is absurd on the face of it. If we are to federate, let us federate in a proper spirit.
45 What is the use of talking about the Federation if a citizen in one part of the
Commonwealth may be treated differently from a citizen in another part of the
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p560
Commonwealth? Unless the true spirit of federation is infused into this Constitution, we
had better have no federation at all, and the sooner we depart to our respective homes the
better.
Mr. REID.-Hear, hear.
5 END QUOTE
And
QUOTE
Mr. GLYNN.-As soon as direct taxation is imposed by the Federal Legislature, taxation
must be uniform throughout the Commonwealth. That legislation must prevail. There
10 cannot be a conflict between direct taxation imposed by the Commonwealth and direct
taxation imposed by the states, after the Commonwealth has imposed direct taxation.
END QUOTE
And
QUOTE
15 Mr. ISAACS (Victoria).-I hope we will not do that. I think it is far more than a question
of drafting. I think, whatever course we take, we ought to try to have the matter explained
as much as possible at the present moment. If we pass the words which my learned friend
(Mr. O'Connor) has suggested, we shall be raising up adversaries of the Constitution on all
hands. The phrase-"the equal protection of the laws" looks very well, but what does it
20 mean? It was part and parcel of the 14th amendment of the American Constitution; it was
introduced on account of the negro difficulty. It is not something separate from the other
portion, and of this Dr. Burgess says, at page 217 of the first volume of his work:-
The phrase "equal protection of the laws" has been defined by the court to mean
exemption from legal discrimination on account of race or colour. This provision would
25 probably, therefore, not be held to cover discriminations in legal standing made for other
reasons; as, for example, on account of age or sex, or mental, or even property
qualifications. The court distinctly affirms that the history of the provision shows it to have
been made to meet only the unnatural discriminations springing from race and colour. If a
discrimination should arise from any previous condition of servitude, I think the court
30 would regard this as falling under the inhibition. The language of the provision implies this
certainly, if it does not exactly express it.
And the case itself, which was decided in 1879, shows perfectly clearly that it has no
application to our Australian circumstances. The head-note is-
1. The 14th amendment of the Constitution of the United States, considered and held to be
35 one of a series of constitutional provisions having a common purpose, namely, to secure to
a recently emancipated race, which had been held in slavery through many generations, all
the civil rights that the superior race enjoy, and to give to it the protection of the general
government, in the enjoyment of such rights, whenever they should be denied by the states.
Whether the amendment had other, and if so what, purposes, not decided.
40 [start page 687]
2. The amendment not only gave citizenship, and the privileges of citizenship, to persons
of colour, but denied to any state the power to withhold from them the equal protection of
the laws, and invested Congress with power, by appropriate legislation, to enforce its
provisions.
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p561
3. The amendment, although prohibitory in terms, confers by necessary implication a

positive immunity, or right, most valuable to persons of the coloured race-the right to
exemption from unfriendly legislation against them distinctively as coloured-exemption
from discriminations, imposed by public authority, which imply legal inferiority in civil
5 society, lessen the security of their rights, and are steps towards reducing them to the
condition of a subject race.
Mr. HIGGINS.-It protects Chinamen too, I suppose, as well as negroes?
Mr. ISAACS.-It would protect Chinamen in the same way. As I said before, it
prevents discriminations on account of race or colour, whether those discriminations
10 be by Parliament or by administration. And in the case I referred to, Yick Wo v. Hopkins,
it was held by the Supreme Court that the ordinance of the San Francisco Legislature was
void, and they went on to say further, even if a legislative provision is fair and apparently
equal on the face of it, if it is so administered as to introduce this discrimination, it will be
declared void.
15 Mr. HIGGINS.-The Act itself.
Mr. ISAACS.-Yes; if it admits of that infringement, and if it is so interpreted by the

Supreme Court of the state as to mean that such a discrimination may be introduced, though
not necessarily, it will be held to be void. That will be found on page 220 of Baker's
Annotated Notes on the Constitution of the United States. If that is so, to put it in plain
20 language, our factory legislation must be void. I put that one simple statement before
honorable members, and I would ask them how they can expect to get for this Constitution
the support of the workers of this colony or of any other colony, if they are told that all our
factory legislation is to be null and void, and that no such legislation is to be possible in the
future?
25 Mr. KINGSTON.-That is the special clause relating to Chinese.
Mr. ISAACS.-Yes.
Mr. GLYNN.-Cannot there be special legislation on the subject under clause 53?
Mr. ISAACS.-I forget what was done with that clause.
Mr. OCONNOR.-Some portion of it now appears under clause 52.

30 Mr. ISAACS.-If it is so, the question of whether we are going to prevent factory
legislation of the kind I referred to will demand very serious consideration. Clause 52, by
the transposition that has been made, will afford an opportunity for discriminating
legislation if the Federal Parliament choose to take advantage of it.
Mr. GLYNN.-If the Federal Parliament does interfere, why preserve state legislation?
35 Mr. ISAACS.-If we retain this clause as it stands, we shall have done no good by
transferring a part of clause 53 to clause 52.
Mr. GLYNN.-It is inconsistent.
Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to

clause 52 to leave the states full power to legislate until overborne by federal legislation. If
40 we retain this provision that no state is to be permitted under any circumstances to pass
p 561 9-3-2009
p562
such a law, then what we have decided to be concurrent legislation becomes exclusive
legislation on the part of the Federal Parliament. On that ground, and for the reasons I have
stated, I say that we ought not to insert this provision as to the equal protection of the laws.
That is a phrase that at once commands approbation, but when it comes to be practically
5 applied it raises up almost insuperable difficulties. With regard to the other part of the
clause, about due process of the law, there is an equal difficulty. I understand that Mr.
O'Connor proposes to introduce that portion. What necessity is there for it? Under our
state Constitutions no attempt has ever been made to subject persons to penalties
without due process of law.
10 [start page 688]
That provision was likewise introduced into the American Constitutions to protect the
negroes from persecution, and dozens of cases have been brought in the United States
courts to ascertain what was meant by due process of law. At one time it was contended
that no crime could be made punishable in a summary way, but that in every case
15 there would have to be an indictment and a trial by jury. That was overruled, and it was
held that you might have process by information. If we insert the words "due process of
law," they can only mean the process provided by the state law. If they mean anything else
they seriously impugn and weaken the present provisions of our Constitution. I say that
there is no necessity for these words at all. If anybody could point to anything that any
20 colony had ever done in the way of attempting to persecute a citizen without due
process of law there would be some reason for this proposal. If we agree to it we shall
simply be raising up obstacles unnecessarily to the scheme of federation. I hope, therefore,
that Mr. O'Connor will not press his amendment.

25 Mr. OCONNOR (New South Wales). I beg now to move-
That the following words be inserted after the word "not"-"deprive any person of life,
liberty, or property without due process of law."
Dr. COCKBURN (South Australia).-Why should these words be inserted? They

would be a reflection on our civilization. Have any of the colonies of Australia ever
30 attempted to deprive any person of life, liberty, or property without due process of
law? I repeat that the insertion of these words would be a reflection on our civilization.
People would say-"Pretty things these states of Australia; they have to be prevented by a
provision in the Constitution from doing the grossest injustice."
Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they
35 appear to me to be very strong, why these words should be retained. The honorable
member will not deny that there should be a guarantee in the Constitution that no
person should be deprived of life, liberty, or property without due process of law. The
simple object of this proposal is to insure that no state shall violate what is one of the first
principles of citizenship.
40 Mr. KINGSTON.-Is there not that guarantee now?
Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure,
practically speaking, for all time. We do not know when some wave of popular feeling may
lead a majority in the Parliament of a state to commit an injustice by passing a law that
would deprive citizens of life, liberty, or property without due process of law. If no state
p 562 9-3-2009
p563
does anything of the kind there will be no harm in this provision, but it is only right that
this protection should be given to every citizen of the Commonwealth.
Sir JOHN FORREST.-Would not the Royal assent be withheld?
Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never
5 refused to any Bill that deals with our own affairs, and it is highly improbable that it would
be refused under any circumstances.
Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it
compulsorily, there being a provision in one of the statutes that the amount to be paid
should be determined by arbitration, would not that be taking the land without due process
10 of law?
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a
decision on the 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.

15 Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page
689] anything the state thinks fit. This provision simply assures that there shall be some
form by which a person accused will have an opportunity of stating his case before being
deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand
any one objecting to this proposal.
20 Dr. COCKBURN-Very necessary in a savage race.
Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is
in Baker's Annotated Notes on the Constitution of the United States, page 215, this
statement-
Due process of law does not imply that all trials in the state courts affecting the property
25 of persons must be by jury. The requirement is met if the trial be in accordance with the
settled course of judicial proceedings, and this is regulated by the law of the state.
If the state law provides that there shall be a due hearing given to the rights of the parties-
Mr. BARTON.-And a judicial determination.
Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary.

30 Mr. ISAACS.-What is the good of it? It is an admission that it is necessary.
Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of

freedom in our Constitution simply because imputations may be cast upon us that it is
necessary. We do not say that it is necessary. All we say is that no state shall be allowed to
pass these laws.
35 Mr. ISAACS.-Who asks for the guarantee?
Dr. COCKBURN.-The only country in which the guarantee exists is that in which its
provisions are most frequently violated.
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p564
Mr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each state
has to do only with its own citizens it may make what laws it thinks fit, but we are creating
now a new and a larger citizenship. We are giving new rights of citizenship to the whole
of the citizens of the Commonwealth, and we should take care that no man is deprived
5 of life, liberty, or property, except by due process of law.
Mr. GORDON.-Might you not as well say that the states should not legalize murder?
Mr. OCONNOR-That is one of those suppositions that are against the first instincts of
humanity.
Mr. GORDON.-So is this.

10 Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which
the community, seized with a sort of madness with regard to particular offences, have set
aside all principles of justice. If a state did behave itself in that way, why should not the
citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn
suggested in so contemptuous a way that there could be no reason for this amendment, that
15 I got up to state again what had been stated before.
Dr. COCKBURN.-Not contemptuous.
Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it
necessary to state the reasons of what, had it not been for the honorable member's
statement, would have seemed to be a perfectly obvious proposition. Mr. Clark, of
20 Tasmania, thought the amendment of importance, and pointed out that it had been put in the
United States Constitution. It should also be put in this Constitution, not necessarily as an
imputation on any state or any body of states, but as a guarantee for all time for the citizens
of the Commonwealth that they shall be treated according to what we recognise to be the
principles of justice and of equality.
25 Sir EDWARD BRADDON (Tasmania).-The amendment suggested by the Parliament of

Tasmania would have modified this clause so as to, perhaps, make it acceptable. That
amendment having been rejected, I cannot but think that it would be advisable to strike the
whole clause out. I think the clause as it stands is calculated to do harm rather than good. It
will cause friction between the states and the [start page 690] Commonwealth, and also
30 involve considerable interference with the rights of the several states. If it is to be decided
that a state shall not enforce any law abridging the liberties of other citizens of the
Commonwealth, and it be understood that those citizens are to have this indulgence while
within the state, that will involve some danger. The latter part of the clause, which says that
the state shall not "deny to any person within its jurisdiction the equal protection of the
35 laws," must involve confusion, and may involve serious disagreement. That is the way it
strikes me.
Question-That the words "deprive any person of life, liberty, or property without due
process of law" proposed to be inserted be so inserted-put.
The committee divided-

40 Ayes ... ... ... ... 19
Noes ... ... ... ... 23
p 564 9-3-2009
p565

END QUOTE
And
QUOTE
5 Clause 112-The Commonwealth shall protect every state against invasion, and, on the
application of the Executive Government of a state, against domestic violence.
Mr. GORDON (South Australia).-I beg to move-
That the word "invasion" (line 2) be struck out, and the word "attack" substituted.
Why should the protection of the Commonwealth be confined only to invasion? We are
10 not likely ever to be invaded, but we are exceedingly likely to be attacked.
Mr. BARTON.-Any attack is an invasion in the sense in which the word is used in this
clause.
Mr. GORDON.-The gunning by a cruiser standing off a city is not an invasion, but it is
an attack.
15 Mr. BARTON.-It is an attack which is part of an invasion; if the attack succeeds
invasion follows.
Mr. GORDON.-I think "attack" is very much better. Of course, if the word "invasion"
covers the ground, well and good; but while "attack" covers "invasion," does "invasion"
cover "attack"? Originally, the amendment I intended to move used both the words "attack"
20 and "invasion."
Mr. REID.-You can repel an invasion 100 miles from the coast.
Mr. GORDON.-But how does the honorable member know that an invasion is
intended?
[start page 692]
25 Mr. REID.-If there was a war between two countries, and a cruiser from the one country
was approaching the other, you would know that it was not on a visit of brotherly love.
Mr. GORDON.-They may not intend to invade the chances are that they do not intend to
invade, but to attack.
Mr. BARTON.-Do you think that the Commonwealth, if a hostile fleet appeared for the
30 purpose of attacking, and not invading, would keep the batteries silent and the Australian
fleet at anchor?
Mr. GORDON.-Something may turn upon this. By this clause the Common-wealth is
only bound to protect every state against invasion. If the Commonwealth neglected its duty,
and South Australia was invaded, South Australia would have a claim against the
35 Commonwealth. But, it appears to me, that it should have an equal claim against the
Commonwealth if it was simply attacked, and not invaded. However, if the leader of the
Convention thinks that "invasion" covers "attack," I am willing to leave the matter to the
Drafting Committee, but I have some doubt on the point.
p 565 9-3-2009
p566
Mr. BARTON (New South Wales).-I am perfectly satisfied that when the guns are
booming there will be no discussion about the meaning of the two words.
Mr. GORDON.-Ought the construction of this Act to be left until the guns are
booming? I thought the object was to prevent the guns booming at all.
5 Mr. HOLDER (South Australia).-I think there is something in the point raised by my
honorable friend (Mr. Gordon). We have previously used separately the terms "naval" and
"military." Now, an attack would be naval, while an invasion would be military.
The CHAIRMAN.-Does the honorable member (Mr. Gordon) press his amendment?
Mr. GORDON.-No. If the leader of the Convention relies on his booming guns I am
10 content.
The amendment was withdrawn.
Amendment suggested by the Legislative Council of Victoria-
After "state" insert "or where in the opinion of the Governor-General it is necessary for
the preservation of the public peace."
15 Mr. GORDON.-I object most strongly to this interference with the state. The state is the
proper party to ask for protection, and not the Governor-General, who is not a resident of
the state, and may be badly advised.
Mr. BARTON.-The state should be entitled to demand protection.

The amendment was negatived.
20 END QUOTE
.
Again;
QUOTE
The Commonwealth shall protect every state against invasion, and, on the application
25 of the Executive Government of a state, against domestic violence.
END QUOTE
.
It must therefore be clear that the Commonwealth cannot invade State territory but can only be
“invited” to assist in domestic violence situations, which means when the State Governor makes
30 such a request because of revolution or that kind of internal state problems.
.
It should never be argues that the constitution is outdated because it was created by men who
died long ago, because the Constitution is the work of the Framers of the Constitution with
approval of electors of each colony and for so far it didn’t correspond to contemporary views of
35 electors there were amendments made within the provisions of section 128 referendum powers.
As such, for all purposes and intend the Constitution is reflecting the current views of the
electors.
.
40 QUOTE
p 566 9-3-2009
p567
5 Commonwealth is to the political Union which is sought to be established. It is not
10 be called a dominion, kingdom, or empire, but is to be a Union by the name of
END QUOTE
.
What we have however is that politicians, once in power, regardless to which political party they
15 belong to generally are out to increase their powers by declaring the Constitution to be outdated
and for example the unconstitutional referendum to try to turn the Commonwealth into some
republic and failing this nevertheless somehow has pursued to achieve that may underline that we
cannot trust either politicians and for this neither the judges of the High Court of Australia.
.
20 What we need is an OFFICE OF THE GUARDIAN, a constitutional council, that advises the
Government, the People, the Parliament and the Courts as to constitutional powers and
limitations. It is to me sheer and utter nonsense that after more then one hundred years we cannot
manage to have 7 judges agreeing upon what the Constitution stands for.
.
25 It is not the Constitution that is the problem but the power hungry politicians and judges who
seek to fancy themselves to ignore the rights of the people by abusing and misusing their powers
to turn the Constitution into something that never can be.
.
Show me where the was a referendum to transfer the States legislative powers of “citizenship” in
30 1948 or prior to this to the Commonwealth? You will find that it never took place! As such, why
are the judges then not attending to this issue? In my view they simply sold themselves out and
are so to say bowing to their political masters to go along regardless what is constitutionally
required. After all, there is no way a reasonable person could accept that without referendum
somehow the Commonwealth could take on legislative powers specifically denied to it by the
35 Framers of the Constitution!
.
We need the High Court of Australia to be divided into an Appellated Bench and a Constitutional
Bench where only appropriately trained person (even if not being lawyers) can sit at the
Constitutional Bench to adjudicate on constitutional matters.
40 .
.
QUOTE
Mr. CARRUTHERS:
45 This is a Constitution which the unlettered people of the community ought to be able
to understand.
END QUOTE
.
Well, it seems 7 judges of the High Court of Australia cannot manage this, or is it simply that
50 they pretend this because they are more occupied by their own desires to create a Constitution to
p 567 9-3-2009
p568
their own contemporary views rather then to accept that it is a peoples constitution and they have
to keep their hands of it and leave it to the electors to amend the constitution if that is needed,
and not use backdoor manner to try to amend the constitution by rewriting the Constitution to a
different meaning to suit themselves.
5 .
The High Court of Australia as far as I understood it was to ADJUDICATE and not to introduce
fancy fictional situations to try to justify its decisions. Adjudication must be based on legal
matters and not creations of the minds of the judges themselves. Why indeed have any court at
all if the litigants will never know how the constitutional provisions may be applied not knowing
10 what next fanciful fictional creation by the judges will eventuate rather then having a decision
based on facts that are before the Court.
.
In my view Sue v Hill decision is a clear example how the judges lost it and went on with
nonsense nothing to do with adjudicating upon the facts and the intentions of the Framers of the
15 constitution!.
.
QUOTE
It would be simply monstrous that those who are born in England should in any way
be subjected to the slightest disabilities. It is impossible to contemplate the exclusion
20 of natural-born subjects of this character; but, on the other hand, we must not forget,
that there are other native-born British subjects whom we are far from desiring to see
come here in any considerable numbers.
END QUOTE
.
25 QUOTE
Constitution? Mr. Barton was not present when I made my remarks in proposing the clause.
I then-anticipated the point he has raised as to the position we occupy as subjects of the
30 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 way
scope of the Constitution to do that. We might be citizens of a city, citizens of a colony,
or citizens of a Commonwealth, but we would still be, subjects of the Queen.
35 END QUOTE
And again
QUOTE
40 Parliament to deal with the political rights of subjects of the states.
END QUOTE
.
I have never hidden my “crummy English” but to me it still does not prevent me to understand
and comprehend that the Commonwealth could not define/declare citizenship and could not,
45 even if it had been given powers to declare/define citizenship it still could “not in any way
scope of the Constitution to do that. We might be citizens of a city, citizens of a colony, or
citizens of a Commonwealth, but we would still be, subjects of the Queen.”
.
50 Again
p 568 9-3-2009
p569
QUOTE
It would be beyond the scope of the Constitution to do that.
END QUOTE
.
5 IF IT IS BEYOND THE SCOPE OF THE CONSTITUTION TO DO SO THEN HOW ON
EARTH DID THE JUDGES GET IT IN THEIR HEAD THAT NEVERTHELESS IT
WAS ALRIGHT FOR THEM TO GO ALONG WITH THE NONSENSE?
.
While the judges argued that the constitution refers to the Queen it is clear that the Framers of the
10 constitution constantly referred to the “British Empire, “subjects of the British Crown”, etc.
They did not refer to some fictional “Queen of Australia” because for the simple reason no
country ever existed as such and still doesn’t. there is a Commonwealth of Australia which is a
POLITICAL UNION and there is the continent of Australia but no country as such.
.
QUOTE Barton
END QUOTE
.
QUOTE Mr. DIBBS:
And what did I hear from our revered friend from New Zealand, Sir George Grey? I
heard a proposal of a still more audacious character. He threw out a suggestion for
25 our adoption that we should stipulate for the election of a governor-general to preside
over the federated colonies, to be elected by the people of those colonies. In God's
name, what then is to become of the Crown? The matter reminds me very much of the
story of "Ginx's Baby." After they had been squabbling about the "territorial rights"
of that unfortunate baby until it had been kicked overboard, the writer concluded
30 with these extraordinary words, "Good God, what has become of the baby?" When
one hon. member proposes to cut the Crown into mince meat-when the hon. member, Mr.
Playford, would deprive the Crown of its right of vetoing a bill, and when the hon. member,
Sir George Grey, would take from the Crown the right of nominating, and give us the
power of electing, our governor-general, what is to become of the Crown? What is the
35 Crown to be? Are we to send to the Fiji Islands for a block of wood which they use as
one of their gods, and set that up in the capital of Australia, and say, "This is the
representative of the Crown, without power or right of veto, and of our own
election"?
Mr. PLAYFORD: What power has the Crown now?

40 Mr. DIBBS: If the Crown has no power now, what does the hon. member propose to take
away? The Crown has the power of vetoing our bills, and showed its power last year when
it vetoed our Divorce Bill. We are gradually cutting that "crimson thread of kinship"-the
words have become historical-we are gradually whittling away the powers of the Crown
and creating for the future of Australia what the hon. member, Mr. Playford, is, perhaps,
45 anxious to create, namely, the republic of the united states of Australia. That is, I have
no doubt, what we are coming to. Without poaching from the unprotected preserves of my
hon. friend, Captain Russell, who rather usurped the position which hitherto I have held in
this chamber, of being the only legitimate quoter of the sacred book, I think really that,
p 569 9-3-2009
p570
after all, "out of the fulness of the heart the mouth speaketh." Out of the fullness of the
heart of republicanism came the proposal to subvert the authority and dignity of the
Crown, to cut the last link of connection with the Crown, and to establish the republic
of Australia. That is what we are coming to, and it is the inevitable destiny of the people of
5 this great country. When England sent her pioneers to subdue the wilds of Australia, to
civilise them and to make "the desert rejoice and blossom as the rose"-when she planted her
colonies in this country she planted them with that germ and spirit of independence which
must, as time rolls on, develop into the establishment of a great republic. The cubs of the
lion will, in due time, play the lion's part; and I was intensely amused to find that that
10 young cub, South Australia, represented by my hon. friend, Mr. Play- [start page 187]
ford, has solved the whole question of converting the authority of the Crown into a
myth. What we are doing to-day is preparing step by step for that grand future which is to
come; and when that day arrives, it will be not to the discredit nor to the injury of England,
but for England's greater strength and security, when she in the southern seas-separated as
15 we are by such a vast expanse-shall have created, as foreshadowed by the hon. member,
Mr. Playford, not a dependency, but a nation of her own people, free and independent
of the Crown. That is the boldest way in which to put the question. It was barely touched
on before, but it was the honest conviction of the hon. member, Mr. Playford, and the hon.
member, Sir George Grey, who pointed out that the people of this country would no longer,
20 especially as time rolls on and develops still further the pluck and independence of the
people, remain as they are; but that in the future this country must become a nation of itself,
in alliance with the old country. Will any of us here say that it was to the loss of England
that America separated from the control of the parent state, or that that event was not in the
interest of humanity, was not for the benefit of the human race? And will anybody tell me
25 that it will be against the interest of humanity, of the British race, or of England
herself, that in due time these colonies shall become one great, united Australia, as
friends and allies of the motherland? That is our future, and what we are doing here
step by step to-day is laying the foundation of the inevitable which is to come. We talk
about making a constitution which is to last fifty or a hundred years. Where shall we be in
30 fifty or a hundred years? I do not suppose that I shall see my hon. friend, Sir John
Bray, fifty years hence sitting in that corner; he might be elevated to the president's
chair; or be president of the republic itself. But we are laying the foundation, and step by
step are following in the lines of a great nation, and in due time we shall become what
America has become, a separate, free, and independent state. That is what we are
35 gradually doing. We may be to a certain extent working in fog and darkness; but that will
be the outcome of the whole question-of all our arguments, of all our debates, of all the
thinking of the people of this country. I am as much in touch with the native-born
population of Australia as is any man in the country; and I feel that I express their
sentiments when I say that from the germ of liberty implanted within us, by our forefathers
40 spring the aspirations which will forbid us to remain bound in alliance except as one
friendly nation with another, always with that special respect that should be paid to the
people, of the fatherland. I am afraid that I have wearied hon. members as far as I have
gone; but it appears to me that before going again over a little bit of the ground, I have said
sufficient to show that I shall oppose the military spirit, both inside this Convention and
45 outside the walls of this chamber. Whenever I have the opportunity I will do my utmost to
cut down the military spirit and to instil into the people of this land a love of their homes,
and also the necessity of defending them in the only legitimate manner. As the, the hon.
member, Sir George Grey, said, either yesterday or in his speech the other day at the Town
Hall, we should educate our people up to all of this, and especially in New South Wales,
50 where we are giving the people of the country practically a free education-and it should be
p 570 9-3-2009
p571
common to all Australia-we should instil into the minds of our children the necessity for
training, and, as a quid pro quo for that free education, we should demand from them a
certain amount of proficiency in the use of arms, which of itself would lay the basis of a
military organisation for the purposes [start page 188] of defence only. When we have done
5 that we should still come nearer to that great future foreshadowed by Wentworth when he
spoke not of these colonies being dependencies of any fatherland or motherland-
dependencies of any state whatever, but when he used words almost equal in eloquence to
the peroration of my hon. friend, Mr. Fitzgerald, last night. When he spoke of
"Australasia with flag unfurled-a new Britannia in another world," the idea was
10 uppermost in his mind, as a native born Australian-as it is in the mind of nearly every
native born Australian now, and also in that of those who have cast in their lot among
us-that the future of Australia must be "a new Britannia" with her own flag. We have
had to repletion the building of castles in the air treated to the prospect of royal courts,
presided over, probably, by royal princes, where our wealthy citizens shall flock around,
15 and enjoy all the pleasures which surround a royal court; but, after all, when we come to the
bed rock, we find that the national spirit of the rising generation of Australia is instinct with
freedom which will impel our people at the earliest possible moment to form a nation of
their own. That is the aspiration, instinct, and spirit, I hope, of young Australia, and we are
here helping that spirit, according to the speeches of my hon. friend, Mr. Playford, and
20 others, by building a constitution like that of the United States, which is to last l00 years. It
appears to me that, to use a nautical expression, these resolutions are wrong side up. We
ought to have begun building our ship by laying the keel. I think we have been putting aloft
the top-gallant and royal yards without having regard to the structure upon which
everything is to depend. We ought to have started by affirming, first of all, what we
25 propose in the shape of a federal parliament-by pointing out that we would have two houses
of legislature. In due time we should have settled among ourselves what powers the senate
should have-it is pretty well agreed what the house of representatives should be. We should
then have defined clearly and distinctly what the federal rights should be-but we are not
doing that we should state clearly and above board what the state rights should be, and,
30 having done that, we should define-and the people of this country will not be satisfied until
we do define-the basis of our fiscal policy, as being one of the conditions which should
follow at the earliest possible moment in the programme. And then, as far as New South
Wales is concerned, we must pay some little consideration as to which city is to be the
capital of the future empire. Where is that capital to be? Is it to be in Hobart? Tasmania is
35 out of the field. Is it to be in Western Australia?
END QUOTE
.
It must be clear that the Framers of the Constitution, at least some of them, desired an Australian
republic, but the overall consensus was that this was not what they where authorised to do.
40 Hence, the federation was the best alternative. And as was made clear, the Constitution did not
allow to turn the Commonwealth of Australia into some republic. After all to do so would mean
to remove the sovereigns of the States as they currently are and to make them submissive to
whatever the federal government may allow it to do and to make it more submissive to the
nonsense of the High Court of Australia as to what it may hand down in its ongoing attempts to
45 redefine what the Constitution stands for.
.

QUOTE
p 571 9-3-2009
p572
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that
END QUOTE
.
QUOTE
10 United Kingdom of Great Britain and Ireland, and under the Constitution hereby
15 is expedient to make provision for the admission of other colonies into the Commonwealth.
END QUOTE
20 .
Therefore, to turn the Commonwealth of Australia into a sovereign State and a republic or for
that matter in a monarchy the Constitution itself would be of little help as it prevents doing so. In
that regard the powers lies with the electors of each of the states that they seek to un-federate and
then seek to confederate. This, because the electors of the States have much to loose such as their
25 British nationality, etc, and no politician/judge of the High Court of Australia is going to rob me
and my children, grandchildren, etc, of their rights!
.
QUOTE
30 Mr. ISAACS: There is a line up to which concession may become at any moment a
sacred duty, but to pass that line would be treason; and therefore, when we are asked
solemnly and gravely to abandon the principle of responsible government, when we are
invited to surrender the latest-born, but, as I think, the noblest child of our constitutional
system-a system which has not only nurtured and preserved, but has strengthened the
35 liberties of our people-then,
END QUOTE
.
QUOTE
40 Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
END QUOTE
And
QUOTE
45 Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
way that guarantee.
END QUOTE
And
50 QUOTE
p 572 9-3-2009
p573
Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
5 have been the work of Australians.
REND QUOTE
And
QUOTE
10 provided for an Executive which is charged with the duty of maintaining the
people.
END QUOTE
.
15 As agents it cannot act against the interest of the people as to deny them their right to decide for
themselves what if any alternative system they desire.
.
The power hungry politicians and judges of the High Court of Australia always will tingle at the
fringes of the Constitution to extend their own power base regardless what Constitution may be
20 in existence and only fools would follow them in their ongoing quest to manipulate constitutional
limitations to set themselves all up as dictators.
Regardless if the Commonwealth of Australia, currently nothing more but a POLITICAL
UNION, were to remain as such, becomes an monarchy or a republic, ultimately this must be left
to the electors themselves and not politicians and./or judges to slowly extend their power base in
25 such manner.
.
QUOTE
Dr. COCKBURN: I support the amendment. I think the framers of this clause find
30 themselves in a dilemma. The clause is one of two things. It either decides that the houses
have not co-ordinate powers, that is to say, that the senate is, in the first place, placed in a
position of distinct inferiority to the house of representatives; or if, in an indirect manner it
gives those powers to the senate which it appears to have taken away from it, it is a flimsy
texture of words, and a mass of ambiguity, which will form no proper foundation for a
35 lasting constitution. If it really takes away the important, powers of veto in detail from the
senate, the it strikes at the very root of the principle of federation, because the principle of
federation is that there should be houses with co-ordinate powers-one to represent the
population, and the other to represent the states. We know the tendency is always
towards the central authority, that the central authority constitutes a sort of vortex to
40 which power gradually attaches itself. Therefore, all the buttresses and all the ties
should be the other way, to assist those who uphold the rights of the states from being
drawn into this central authority, and from having their powers finally destroyed. The
whole history of federation in America, whether it be the United States or Canada,
has proved this: that the tendency is towards centralisation, and away from that local
45 government which is inseparable from freedom. I have heard it said that those who
advocate state rights are taking a conservative view of the question. I would like to
know since what time have centralisation and democracy been associated? Those who
advocate state rights advocate local government, under whose shadow alone
democracy can exist. There is nothing in common between centralisation and
50 democracy, and if you handicap a house, which is erected, to preserve state rights,
p 573 9-3-2009
p574
what have you to prevent the establishment, in this huge island of Australia, of a
strong central government which is local only to one portion of the continent, and as
far as the rest of the continent is concerned is distant and central? I maintain that a
central government, just inasmuch as it never can be associated with the power of the
5 people, is inseparably associated with tyranny, arising either from ignorance or
design-frequently from ignorance-because a central and distant government can
never properly appreciate the local conditions for which it is to legislate. I [start page
708] am surprised that any one in this Convention should for one moment say that to
strengthen in every way the rights of the states, as such-to protect in every way the
10 local institutions-is the conservative mission. The whole history of federation has
proved it is otherwise. It was in the name of state rights, when the question of the
Constitution of America was being discussed, that the most fervent appeals to liberty
that ever stirred the human breast were made, and all those opposed to state rights
were the conservatives, the monarchists of that time. The strongest upholders of state
15 rights from time to time have been those in favour of government by the people, and it
is only when you have state rights properly guarded, and safeguard local government,
that you can have government by the people. Government at a central and distant
part is never government by the people, and may be just as crushing a tyranny under
republican or commonwealth forms as under the most absolute monarchy. I do hope
20 that hon. members will not allow themselves to be hoodwinked in this matter. It seems
that the crushing majority in favour of the state rights that are essential to federation,
which we had at the commencement of this discussion, has dwindled away. I maintain
that unless the state rights are in every way maintained-unless buttresses are placed to
enable them to stand up against the constant drawing towards centralisation-no
25 federation can ever take root in Australia. It will not be a federation at all. It will be
from the very start a centralisation, a unification, which, instead of being a guardian
of the liberty of the people, will be its most distinct tyrant, and eventually will
overcome it. I do hope that we shall find that those who took a clear view at the
commencement of our meetings have not been seduced from the views they then held, and
30 that, as at the commencement of the debate, there will be a majority to vote with the hon.
member, Mr. Baker.
END QUOTE
.
A confederation would undue the very reasons why the colonies came into existence and clearly
35 was rejected as a principle to be accepted at the time of federation. Still I am not going to
determine and neither intend to do so or must be perceived to do so what future there lies for the
Commonwealth of Australia under whatever name it may take at a later time, if any, other then
its current name however, I for one can but only make clear that the federal purposes that were
made clear, some of which are detailed in this document must be that ultimately not the judges of
40 the High Court of Australia and/or the politicians but the electors themselves as electors of the
States determine what they desire as to their sovereign rights as to States and if they desire to
squander any of their rights and perhaps be more manipulated by a federal government which
appears not to relent to undermine the constitution such as to now unconstitutionally fund
municipal councils in a way to seek to destroy the States as entities. If this is already the conduct
45 of the Federal Government then be aware of what might be ahead of us if there was a
confederation where the Commonwealth of Australia then could manipulate its powers against
the so divided municipal councils without having any real opposition as none of the municipal
councils could possibly present any opposition to the all mighty federal government.
.
p 574 9-3-2009
p575
Currently if a person doesn’t like a State as to how it regulate its citizens then one can move to
another State. Forget this is there is just one mighty powerful federation.
.
More then likely the Federal Government would offload most of its responsibilities to municipal
5 councils so that the politicians have less to bother about while the municipal councils would have
to raise more property rates as to try to fund the ever increasing staff to deal with increased
responsibilities.
.
While the people cast their voice to veto the amendment of the Constitution for municipal
10 councils and also to become a republic (itself an unconstitutional referendum) it is clear that the
politicians and judges of the High Court of Australia are hell bend to circumvent the peoples
power and do what they all along pursued. Those who favour abolition of States must keep in
mind be careful what you wish for and not limited to tunnel views.
.
15 We have seen that John Howard made clear that regardless what the people desired he decided
to go to war and invade a sovereign nation! He was not concerned about the fact that
constitutionally he had no such power as this was left with the Governor-General as prerogative
powers to publish in the Gazette a proclamation of DECLARATION OR WAR or PEACE.
And we find with Kevin Rudd that despite my 2 December 2007 request to him for a ROYAL
20 COMMISSION into the unconstitutional murderous invasion into the sovereign nation Iraq, he
has not bothered to provide for this because fancy a Prime minister dealing with matters within
the constitutional context and then prevent himself ever to abuse/misuse his powers and having
to submit to the will of the people.
.
25 Nazi Hitler came into existence for many reasons and the main issues were that there was then
also an ever hungry political movement for more and more power and how to manipulate the
people to achieve that and the people foolish enough to accept whatever for ever thinking that in
the end they will be better off. The fact that their own powerful hungry Government then turned
against the people obviously was never contemplated at the time. Fool those who therefore
30 believe that ignoring constitutional constrains can be accepted for the sake of some goal, as once
you accept the abuse/misuse of power and disregard constitutional constrains then no kind of
constitution ever will be better of as once politicians have devised a system how to manipulate
their powers to circumvent constitutional constrains then they and those coming after them will
forever use this on whatever constitution that might then be in place to do the same.
35 .
.
QUOTE Mr. DIBBS:
40 We must not, however, be unmindful of the fact that there can be no federal government
without, to a large extent, the sacrifice of some portion of state rights; and when the word
"provinces" is used in this debate, I ignore its existence altogether. We have been, as it
were, chaffed out of our very existence. Those of us who have spoken within the walls of
this building, or who have spoken out of doors to our constituents, and have endeavoured,
45 in discussing the federal question, to take a strong view of the position in regard to the
defence of the rights of New South Wales, have been pulled to pieces, and called
provincialists. I object, in connection with the independent state of New South Wales-a
state as independent as any in the world, even England itself, so far as the freedom of our
position is concerned-to the word "province." There may be something more dignified in
50 the use of the word "state." We are not going to become provinces. I do not think we
p 575 9-3-2009
p576
are going to give up the individual rights and liberties which we possess, and which
those who have gone before us have fought for, to become mere provinces under a
federal form of government. We may take the more dignified form of "states." Whilst
we have endeavoured to put before the people of New South Wales, in these resolutions, a
5 sort of opiate, something assuring to their minds that in joining a federal union we give up
nothing of our territorial rights, words have been inserted in them which I shall do my
utmost in Committee to strike out-
except in respect to such surrenders as may be agreed upon as necessary and incidental to
the power and authority of the national federal government.
10 I do not know the meaning of these words, and no hon. gentleman who has yet spoken has
given any clear interpretation of them. It is sufficient for us, in enunciating a principle
upon which the basis of a constitution shall be prepared, to see that the territorial
rights and privileges of each colony shall be preserved to each state but when you
come to consider the condition of a surrender, and the question of the power of
15 enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.
END QUOTE
.
Again we must not ignore the wording “and the question of the power of enforcing such
20 surrender is placed in the hands of the federal government”, which as Mr Wise indicated is
left to the states and NULLIFICATION can be applied if the Commonwealth law is deemed
unjust.
As such no such thing as ASIO/Australian Federal Police/ Immigration Officials roaming about
the State territories!
25 Hence the purported authorisation by the Federal Attorney-General for a warrant issue against a
citizen in a State obviously is also unconstitutional and so any legislation that may dictate a State
Court to be obligated to approve such nonsense of a warrant issue.
.
Perhaps we may do better appointing to the High Court of Australia persons who are like me
30 using so to say “crummy English” and we might even then get more sense from the judgments
that are handed down on constitutional issues.
The Federal Purpose was clearly to have a limited Federation by the powers granted to the
Commonwealth but no more.
As must be clear from the above quotations the Framers of the Constitution had no powers to
35 interfere with the internal colonial matters to dictate for example how a Governor was to be
appointed, etc. but they recognised that DUE PROCESS OF LAW and other important issues
had to be embedded in the constitution.
While States may seek to abolish TRIAL BY JURY the truth is that because of Section 80 it is
embedded in the Constitution that states therefore must provide for TRIAL BY JURY.
40 The High Court of Australia fancy full also deciding that the appointment of temporary judges is
unconstitutional. Sure, personally I do not think it is wise to have judges appointed which depend
upon the Government of the Day if they can continue or not to be judges, but as a
CONSTITUTIONALIST this is not relevant what my personal views are in that ultimately
what is applicable is what the real intentions were of the Framers of the Constitution and unless
45 and until the people themselves amend the Constitution for this then the judges of the High Court
of Australia have no business to interfere with State sovereign rights. Simple as that. Being it
judiciary matters, land rights (native title rights) or whatever that is pure State sovereign rights.
.
p 576 9-3-2009
p577

QUOTE
Mr. DIBBS: Yes; but the hon. member knows what became of the unfortunate man who
took it. That is one of the questions which it is no use our shirking. Now, I speak on behalf
5 of New South Wales, because I am sworn to no master but New South Wales; I know no
other master but the people of New South Wales. When the day comes it will not be an
open question more than the fiscal question; but will have to be settled not so much in the
interests of New South Wales as in the interests of the whole of Australia. If we are to go
into a federation, we must know on what lines we are to go.
10 END QUOTE
.
QUOTE
Mr. CLARK: What we want is a separate federal judiciary, allowing the state
15 judiciaries to remain under their own governments.
END QUOTE
.
QUOTE Mr. SYMON.-
20 Then, I think myself, some confusion may arise in consequence of the reference to the state
in the words "Proceedings to be taken against the Commonwealth or a state in all cases
within the limits of the judicial power." Now, it does not appear to me that we ought to
interfere in any way with the functions of a state to regulate the proceedings which it,
as a quasi-independent political entity, may prescribe for the regulation of its own
25 legal proceedings.
END QUOTE
.
30 Sir EDWARD BRADDON (Tasmania).-I should like to hear the honorable leader of the
Convention say whether this clause as it stands might not interfere very materially with the
carrying out of certain state laws in reward to the internal trade of a state? That is to say,
whether it would not absolutely, as a fact, prevent any one state from exercising its law in
regard to hawking goods about the country? It might very well be that one state would have
35 a law absolutely prohibiting hawking in every shape and form. Well, clearly, such a law as
that would seriously interfere with the provision which says that any goods transported
from one end of the Commonwealth to the other shall be absolutely free. Now, there is
another point which will be of some importance to a large body of people, and that is the
question of alcoholic liquors-the question whether they are free under this clause as it
40 stands to pass from one state into another, and from one part of that state to another part,
without any regard whatever to the local laws relating to alcoholic liquors. [start page 1020]
I think that we ought to be satisfied on these points, and satisfied that if we leave the
clause as it now stands there will, at any rate, be some proviso inserted which will
safeguard the states in the carrying out of any of their state laws over which the states
45 are to be supreme even under federation.
Dr. COCKBURN (South Australia).-Quite apart from the question of trade between state
and state, is it not necessary that the Commonwealth itself should have some power for the
restriction and the regulation of trade? The words "absolutely free" are infinite in their
p 577 9-3-2009
p578
application, and they seem to me to take away from the Commonwealth the power to
restrict and regulate trade within the confines of the Commonwealth.
Mr. DEAKIN.-We are not at those words yet; we are considering the words throughout
the Commonwealth."
5 END QUOTE
.
QUOTE
10 Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),
there has been [start page 1856] a considerable change. Two matters in that sub-section
seem to me to deserve attention. First, it is provided that all taxation shall be uniform
throughout the Commonwealth. That means direct as well as indirect taxation, and
15 the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
should like the Drafting Committee to consider whether saying the tax shall be uniform
would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
the same weight on the same class of property, wherever it is found. It affects all kinds of
20 direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to
be imposed might be held to be unconstitutional, or, in other words, illegal, if it were
not absolutely uniform.
END QUOTE
25 Again;
QUOTE
It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
30 .
QUOTE
and the states on terms that are just to both.
35 .
QUOTE Mr. TRENWITH (Victoria)[4.55]:
Our early experience taught us that unification for all the, purposes of government
was not desirable, and thus there is in our midst, and in all the colonies, a strong
40 determined feeling that while we have federation we [start page 604] must still
maintain the sovereignty of the states.
END QUOTE
.
45 QUOTE
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be
invalid.
END QUOTE
p 578 9-3-2009
p579
.
QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
5 borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
10 QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to the
Commonwealth powers which ought to be left to the states. The point is that we are
not going to make the Commonwealth a kind of social and religious power over us.
END QUOTE
15 .
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-
20 That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states. We
have our Constitution framed in this way with a Senate to guard what? The interests of the
25 states, so that the Commonwealth shall not intrude one inch into what is retained as
the executive rights and jurisdiction of the states.
END QUOTE
.
30 QUOTE
Mr. ISAACS: There is a line up to which concession may become at any moment a
sacred duty, but to pass that line would be treason; and therefore, when we are asked
solemnly and gravely to abandon the principle of responsible government, when we are
invited to surrender the latest-born, but, as I think, the noblest child of our constitutional
35 system-a system which has not only nurtured and preserved, but has strengthened the
liberties of our people-then,
END QUOTE
.
40 QUOTE Mr. DEAKIN:
They both desire to retain for their Several States for all time the privilege of
controlling industrial disputes within their own borders.
END QUOTE
.
45 HANSARD 19-4-1897 Constitution Convention
QUOTE Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When
once that Constitution is framed we cannot get behind it.
p 579 9-3-2009
p580
END QUOTE
.
QUOTE
5 Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
END QUOTE
.
10 QUOTE Mr. OCONNOR.-
case the Constitution will be above Parliament, and Parliament will have to conform
to it.
15 END QUOTE
.
QUOTE
20 END QUOTE
.
QUOTE
25 the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
END QUOTE
.
30 QUOTE Mr. THYNNE:
END QUOTE
.
QUOTE Mr. DIBBS:
p 580 9-3-2009
p581
We must not, however, be unmindful of the fact that there can be no federal government
without, to a large extent, the sacrifice of some portion of state rights; and when the word
"provinces" is used in this debate, I ignore its existence altogether. We have been, as it
were, chaffed out of our very existence. Those of us who have spoken within the walls of
5 this building, or who have spoken out of doors to our constituents, and have endeavoured,
in discussing the federal question, to take a strong view of the position in regard to the
defence of the rights of New South Wales, have been pulled to pieces, and called
provincialists. I object, in connection with the independent state of New South Wales-a
state as independent as any in the world, even England itself, so far as the freedom of our
10 position is concerned-to the word "province." There may be something more dignified in
the use of the word "state." We are not going to become provinces. I do not think we
are going to give up the individual rights and liberties which we possess, and which
those who have gone before us have fought for, to become mere provinces under a
federal form of government. We may take the more dignified form of "states." Whilst
15 we have endeavoured to put before the people of New South Wales, in these resolutions, a
sort of opiate, something assuring to their minds that in joining a federal union we give up
nothing of our territorial rights, words have been inserted in them which I shall do my
utmost in Committee to strike out-
except in respect to such surrenders as may be agreed upon as necessary and incidental to
20 the power and authority of the national federal government.
I do not know the meaning of these words, and no hon. gentleman who has yet spoken has
given any clear interpretation of them. It is sufficient for us, in enunciating a principle
upon which the basis of a constitution shall be prepared, to see that the territorial
rights and privileges of each colony shall be preserved to each state but when you
25 come to consider the condition of a surrender, and the question of the power of
enforcing such surrender is placed in the hands of the federal government, then your
END QUOTE
.
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
END QUOTE
35 .
QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
40 END QUOTE
.
It should be clear that the Constitution is not a one and all document that dictates the States how
to conduct its internal affairs or principles that applies. This is shown clearly by the fact that
Section 41 of the Constitution provides for adult suffrage but only for those who were granted by
45 their Colony/State franchise. For example, it did not dictate that a state had to provide franchise
to women. As such, one has to be careful to take the constitution as a document that implies that
everything in the Constitution is applicable to a State as it isn’t. And to discover what is or isn’t
p 581 9-3-2009
p582
is what I as a CONSTITUTIONALIST spend many years researching. And with enjoyment

because after all it is what are rights are all about!
.
Again;
5 .
QUOTE
Mr. CLARK: What we want is a separate federal judiciary, allowing the state
judiciaries to remain under their own governments.
10 END QUOTE
.
QUOTE Mr. SYMON.-
Then, I think myself, some confusion may arise in consequence of the reference to the state
15 in the words "Proceedings to be taken against the Commonwealth or a state in all cases
within the limits of the judicial power." Now, it does not appear to me that we ought to
interfere in any way with the functions of a state to regulate the proceedings which it,
as a quasi-independent political entity, may prescribe for the regulation of its own
legal proceedings.
20 END QUOTE
.
What therefore ought to be clear, and so upheld by the County Court of Victoria on 19 July 2006
where I also had submitted that the commonwealth legislation as to AVERMENT was
unconstitutional where it sought to infringe upon State judicial procedures, that the
25 Commonwealth is excluded from interfering with State judicial matters. This, regardless what the
High Court of Australia may fancy to argue in Kable, Forge or other cases against temporary
appointed judges.
I have no issue with the argument that it is undesirable to have temporary judges appointed who
may own their future career pending how they decide cases, but it is another thing to try to make
30 out that somehow the Judiciary provisions of the Constitution applies to the State judicial matters
as clearly the quotations indicates this not to be so. And the right of NULLIFIACTION also
should underline that State Courts do not have to so to say toe the line with the Commonwealth
when it comes to that.
35 QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
40 .
Therefore, it cannot be questioned but that internal State matters are out of the hands of the
Commonwealth of Australia, albeit remains to be subject to the provisions of the
Commonwealth of Australia Constitution Act 1900 (UK) and its embedded principles for so far
they are applicable.
45 .
Again for this one need to be a CONSTITUTIONALIST to know what is embedded in the
Constitution.
.
p 582 9-3-2009
p583
We now need to attend to Chapter 005 The Westminster Act is ULTRA VIRES, which deals
as the heading itself indicates with the validity of the West Minster Act for constitutional
purposes.
This chapter was previously published also in the following publication;
5 .
INSPECTOR-RIKATI® on IR WorkChoices Legislation (Book-CD)
A Book about the Validity of the High Courts 14-11-2006 Decision

ISBN 978-0-9751760-6-1
-
10 INSPECTOR-RIKATI® on IR WorkChoices Legislation (Book-B&W)
A Book about the Validity of the High Courts 14-11-2006 Decision

ISBN 978-0-9751760-7-8
-
INSPECTOR-RIKATI® on IR WorkChoices Legislation (Book-Colour)
15 A Book about the Validity of the High Courts 14-11-2006 Decision

ISBN 978-0-9751760-8-5
.
QUOTE Chapter 005
Chapter 005 The Westminster Act is ULTRA VIRES
20 .
* Gary, how can the Westminster Act be ULTRA VIRES?
.
**#** INSPECTOR-RIKATI®, I will go further into details about this very soon.
.
25 Now lets quote Chapter 034N (unconstitutional Westminster Act) of the book (published on
17-3-2007);
INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS

For the quest of JUSTICE, in different ways. Book on CD.
30 ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3
QUOTE Chapter
* Gary, unconstitutional Westminster Act?
.
INSPECTOR-RIKATI®, Actually, it is really in conflict with principles embedded in the
35 Constitution in the Commonwealth of Australia Constitution Act 1900 (UK) and therefore, for
so far it is in conflict, not legally applicable and/or enforceable.
.
QUOTE
40 “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
between giving effect to the law, and maintaining an incorrect interpretation, It is not,
45 in my opinion, better that the court should be persistently wrong than that it should
be ultimately right..
p 583 9-3-2009
p584
emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong,
and there are no circumstances countervailing the primary duty of giving effect to the law
5 as the court finds it, the real opinion of the court should be expressed.”
END QUOTE
.
Hence, the Court should not hesitate to admit to the fact that previously the Courts had erred in
regard of the validity of the Westminster Act, the Australian Citizenship Act 1948, the Australia
10 Act 1986 (UK and Cth), etc.
.
As already set out (elsewhere in this book) that Australians (British nationals) are governed by
Constitutional law and British law (English law)! It is impossible for the High Court of
Australia to somehow throw of the Imperial powers while still maintaining that the Imperial
15 legislation such as the Commonwealth of Australia Constitution Act 1900 (UK) remains in
force albeit upon conditions what they themselves consider is relevant. Some kind of, so to say,
“cherry picking” tactic.
.
The mere fact that the people of the Commonwealth of Australia rejected a referendum to
20 become a REPUBLIC in itself underlines that Australians never accepted that the
Commonwealth of Australia is an INDEPENDENT nation but rather that it remains under the
British Crown.
.
25 National Australasian Convention) (Chapter 33 of the CD)
QUOTE Mr. DEAKIN.-
END QUOTE
.
30 Because no judge can be an adjudicator in his own cause, it must be clear that in effect not a
single judge could purport to have a position to decide this matter if his/her own position depends
upon the outcome of this matter to be decided.
It would be judicial bias for any judicial officer to decide a matter in which his very own survival
of being a judicial officer depends upon the outcome of the matter.
35 .
QUOTE
Mr. MCMILLAN: I do not quite follow Mr. Isaacs in his logic. It seems to me it is a
40 very serious matter to attempt to interfere with the whole machinery of the
constitutional Government,
END QUOTE
.
QUOTE
. I take it that one of the first principles of the Constitution is that we present it to the
several colonies, not as a complete constitution, but as one which they can make
complete; not as a constitution necessarily adapted to their needs and desires, but one
50 which they can themselves adapt to those needs and desires.
p 584 9-3-2009
p585
END QUOTE
.
It must be clear that the Constitution was never intended to endure for all times in the format and
principles it was created, but that Section 128 Referendum would allow it to be amended, to
5 reflect contemporary views, if so approved by the electors by their VETO powers. Hence the
Constitution is, so to say, a living Constitution.
The effect of the Westminster Act 1931 and/or the Australia Act 1986 amounts to changing a
“constitutional government” to a “government above the Constitution”.
.
QUOTE
Mr. HIGGINS.-A number of laws have been held to be unconstitutional in America
because of their reasons and because of their motives. There was a funny case in San
15 Francisco, where a law was passed by the state that every prisoner, within one hour of his
coming into the prison, was to have his hair cut within one inch of his head. That looked
very harmless, but a Chinaman brought an action to have it declared unconstitutional, and
it turned out that the law was actually passed by the Legislature for the express purpose of
persecuting Chinamen.
20 Mr. BARTON.-That took place under the next clause in this Bill, which is a similar
enactment.
.
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
25 point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive. All I want is, that there should be no imposition of any
observance because of its being religious.
END QUOTE
.
30 Again;
QUOTE
but I am trying to point out that laws would be valid if they had one motive, while
they would be invalid if they had another motive.
END QUOTE
35 .
For example, the Parliament of Westminster passed the British Nationality Act 1948 but as the
Commonwealth of Australia Act 1900 (UK) section 51(xix) allows for naturalization of “aliens”
by the Commonwealth of Australia to become “British nationals” then clearly for so far this
British Nationality Act 1948 conflicts with the Constitution it is not relevant. Hence, it has no
40 bearing upon Australians as they are and remain to be British nationals. To accept otherwise
would mean the British Parliament by the British Nationality Act 1948 effectively amended the
Constitution circumventing Section 128 referendum.
.
QUOTE Mr. DEAKIN:
When the question of a second chamber comes to be considered, they will assuredly not be
satisfied to possess less freedom. More than this. In framing a federal constitution, we
should set out with the explicit claim to possess and exercise all the rights and
p 585 9-3-2009
p586
privileges of citizens of the British empire to the same extent that they are possessed
and exercised by our fellow-countrymen in Great Britain itself.
END QUOTE
5 .
It must be kept in mind that Edmund Barton was born in NSW!
.
10 QUOTE
are all alike subjects of the British Crown.
END QUOTE
.
15 And
QUOTE
Constitution? Mr. Barton was not present when I made my remarks in proposing the
20 clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
scope of the Constitution to do that. We might be citizens of a city, citizens of a
25 colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
END QUOTE
.
END QUOTE
.
And
40 whom it will embrace and unite.
45 about to commit to the people of Australia a new charter of union and liberty; we are
p 586 9-3-2009
p587
END QUOTE
.
5 Because, the Constitution was also referred to as the New Magna Charta, then the British
Parliament is bound to honour it and as such has no legislative powers to circumvent what is
embedded in the Constitution. In this regard, the British Nationality Act 1948 is without legal
force in regard of any Australian who is born in the Australia or has been naturalized. It also
means that the Australia Citizenship Act 1948, as set out elsewhere also that the Commonwealth
10 of Australia was specifically denied any legislative powers to define/declare citizenship, this act
is in conflict of constitutional provisions and hence ULTRA VIRES for so far it purports to
define/declare CITIZENSHIP. Likewise so the Migration Act dealing with “non-citizens”.
The Westminster Act 1931 seeking to give the Commonwealth of Australia powers not contained
15 within the Constitution itself, as later also appeared to prove with the purported repeal of parts of
the Westminster Act 1931, then this Act was also designed to undermine the constitutional
government was agreed upon by federation. It seeks to give the Commonwealth of Australia
powers that it can obtain with a disregard of the States and without a Section 128 Referendum to
allow the electors to VETO this.
20 In basic terms it is say like forming some neighbour watch and then before you know it the
neighbour watch without your consent takes over ownership of your property. Surely any fair-
minded person would accept that such change of ownership could not be lawful, like wise the
change of ownership of the Constitution, the “new Magna Charta” from the people to the
Federal Parliament cannot be accepted.
25 .
QUOTE
30 In the preamble honorable members will find that what we desire to do is to unite in one
35 intended there to have any relation whatever to the name of the country or nation which we
END QUOTE
.
The Westminster Act holds that the Commonwealth of Australia is a “dominion” but clearly it
never was. The Commonwealth of Australia is only a LIMITED “POLITICAL UNION” by the
45 Colonies (now States) (see below also). It is my view that the Westminster Act itself is for so far
it conflicts with the intentions of the Framers of the Constitution invalid/unconstitutional as it
seeks to amend the Constitution by a backdoor manner.
.
p 587 9-3-2009
p588
QUOTE
in England. We are here establishing a Constitution truly under the Crown, but in many
5 respects vastly different from the English Constitution. I think this principle is a very
right. If you only give the Parliament the power to establish the right, then you are, to
10 some extent, negativing the right. I do not know that it is worth while to have much
Sir JOHN DOWNER.-I think it has not the power.
15 Mr. ISAACS.-How is it done in Canada? How is it done elsewhere?
only to be a power of the Parliament, it is not worth while to discuss the question of
20 whether it is [start page 1665] absolutely necessary to put in the words. Where there is a
powers, or of any other powers vested by this Constitution in the Parliament or Executive
25 Government of the Commonwealth, or in any department or officer thereof.
which the Constitution is established.
30 END QUOTE
.
Again;
QUOTE
35 END QUOTE
.
To remove the application of British law (English law) from application to the Commonwealth of
Australia would also be effectively an amendment to the Constitution and as such neither be
legally enforceable. For example, the Merchant Shipping Act 1894 was a British law that was
40 intended to be applicable to certain extend to the Commonwealth of Australia as the Framers of
the Constitution debated this and other English law to be applicable, hence, to purport otherwise
in the Westminster Act makes this Act itself to be unconstitutional/invalid.
As it is an English law the Westminster Act really is not “unconstitutional” rather without legal
force (ULTRA VIRES) for so far it conflicts with the Constitution.
45 The following parts makes no sense to me, in that the Constitution never provided any such
powers and as such it is another backdoor manner to effectively seek to amend the Constitution.
QUOTE
p 588 9-3-2009
p589
to, the enactment thereof.
5 .
(3) In the application of this Act to the Commonwealth of Australia the request and consent
END QUOTE
10 .
The fact that this is now pursued as to seek to have accepted that section 8 was repealed
somehow underlines this.
QUOTE
END QUOTE
.
QUOTE
Sir GEORGE GREY: If that is not done, of course we act against experience. I hear
hon. gentlemen say "No"; but they must recollect that it was foreseen that dire results
25 would follow from the adoption of another system, and that those dire results did follow,
and, with that [start page 138] example before us, it appears very doubtful if we ought not,
pursuing the course of wisdom, to take steps which will prevent a repetition of the disasters
which took place in the United States. Some other plan of doing it may be devised; but
the object should be attained in some way or other without subjecting ourselves to the
30 chances of future great disaster.
END QUOTE
.
In my view, no legislative body can amend a legislation that created that legislative body!
To allow for this it would become its own creator! It would nullify all and any principles in the
35 Constitution and as the High Court of Australia itself still does refer back to the Hansard records
and the intentions of the Framers then it cannot, so to say, eat the cake and have it. The
Constitution as was at time of Federation, as amended by the VETO powers of the electors by a
Section 128 Referendum is the only valid Constitution. In my view, anyone who were to support
the (purported) Australia Act 1986 must be deemed effectively to commit treason as the Framers
40 of the Constitution held this to be so where anyone would go against the legal principles
embedded in the Constitution. As such, regarding the Commonwealth of Australia the following
Acts must be deemed to be without legal force pertaining the Commonwealth of Australia for so
far they purports to apply and/or otherwise (directly or indirectly) have any effect upon the
Commonwealth of Australia and/or Australians in conflict to the principles and/or other
45 provisions embedded in the Constitution contained in the Commonwealth of Australia
Constitution Act 1900 (UK)
Westminster Act 1931(UK) British Nationality Act 1948 (UK)
50 Australia Act 1986 (UK) Australia Act 1986 (Cth)

p 589 9-3-2009
p590
Any law, such as to deny the application of British Acts (such as the Merchant Shipping Act
1894) which would effectively be to amend the Constitution, if not by word then the principles
embodied in this Constitution.
5 QUOTE
Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in
effect, because the provisions of this Constitution, the principles which it embodies,
and the details of enactment by which those principles are enforced, will all have been
10 the work of Australians.
END QUOTE
.
Now this is the latter part of which makes it very clear;
QUOTE
15 the principles which it embodies, and the details of enactment by which those
principles are enforced, will all have been the work of Australians.
END QUOTE
.
The Commonwealth of Australia Constitution Act 1900 (UK) embedded in it a PERPETUAL
20 LEASE, so to say that the principles embodied in this Constitution would remain to be
applicable.
.
25 QUOTE Mr. SOLOMON.-
We shall not only look to the Federal Judiciary for the protection of our interests, but
also for the just interpretation of the Constitution:
END QUOTE
.
30 Consider this then with the Forge decision by the High Court of Australia versus the following;
.
the National Australasian Convention) (Chapter 33 of the CD)
QUOTE Mr. CLARK:
35 What we want is a separate federal judiciary, allowing the state judiciaries to remain
under their own governments.
END QUOTE
.
QUOTE Mr. ISAACS:
There is a line up to which concession may become at any moment a sacred duty, but to
pass that line would be treason; and therefore, when we are asked solemnly and gravely to
abandon the principle of responsible government, when we are invited to surrender the
45 latest-born, but, as I think, the noblest child of our constitutional system-a system which
has not only nurtured and preserved, but has strengthened the liberties of our people-then,
Sir, I feel in my heart that we are asked to reverse a century of development; that we are
asked to deny an absolute and fundamental principle of our political existence-that we are
asked, in short, to do what not only is inexpedient but utterly impossible. To stand here,
50 sent as we are by the people of these colonies, and to forget the struggles and the triumphs
p 590 9-3-2009
p591
which have made our constitutional system what it is-at once the pride and the hope of
millions of our fellow subjects in various parts of the Empire, and the admiration, nay, the
envy of other nations, both unitary and federal, who have striven in vain to imitate its
excellencies-would be to earn for ourselves-I say it with all respect-and to justly earn, the
5 contempt and the execration of those whose trust we bear to this Convention.
END QUOTE
.
10 QUOTE
Sir PHILIP FYSH.-I am going to suggest another alternative. The suggestion made that
Western Australia would have the option of collecting higher duties on foreign imports, is
not likely to give them the revenue they need. But it has been suggested-and I regret there
almost seems to be, in some minds, treason in the suggestion-that Western Australia
15 should, at any rate for five years to come, in connexion with the collection of her customs
duties, have a decreasing or sliding scale on intercolonial products. I know it has been
regarded as almost treason against the Constitution that we should within the compact for
a uniform Tariff think of one colony which does not give thorough intercolonial free-trade.
END QUOTE
20 END QUOTE Chapter
END QUOTE Chapter 005
.
The 035-Chapter 006 The Constitution is a PERPETUAL LEASE contains more then
112,000 characters and is 36 pages and also deals with the Constitution and how it is in fact a
25 PERPETUAL LEASE. As such, something that cannot be changed without the approval of the
People themselves.
.
QUOTE Chapter 006
Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)
30 QUOTE
what was the nature of the remedy provided.”
END QUOTE
35 .
QUOTE
“No doubt it is the duty of the court to look at the object of an act in determining what is the
40 court to endeavour to carry out that object by making something an offence which the
END QUOTE
.
Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
45 QUOTE
“This court however must take the act as it finds it, and cannot do violence to its language in
order to bring within its scope, cases, which although within its mischief are not within its
words.”
END QUOTE
50 .
p 591 9-3-2009
p592

QUOTE
“The act should be construed according to its intention of the legislature. Where the
legislature has stated the mischief for which the common law did not provide, consideration of
5 the nature and extent of that mischief is relevant to the interpretation of the act.”
.
Therefore, if the British parliament and the British Crown provided with the consent of the
Australian Colonies and the People of Australia for the Commonwealth of Australia
Constitution Act 1900 (UK) to be a PERPETUAL LEASE, only to be amended by Section 128
10 of the Constitution then any subsequent legislation that unduly appears to interfere with this
PERPETUAL LEASE can and must be held to be invalid in law for so far it seeks to exercise
powers beyond that provided for in the PERPETUAL LEASE.
QUOTE 16-3-2005 correspondence to Malcolm Turnbull

15 Hansard 31-3-1891
QUOTE
Sir SAMUEL GRIFFITH:
There must be some method, and we suggest that as a reasonable one. With respect to
amendments of the constitution, it is proposed that a law to amend the constitution
20 must be passed by an absolute majority of both the senate and the house of
representatives; that, if that is done, the proposed amendment must be submitted for
the opinion of the people of the states to be expressed in conventions elected for the
purpose, and that then if the amendment is approved by a majority of the conventions
in the states it shall become law, subject of course to the Queen's power of
25 disallowance. Otherwise the constitution might be amended, and by a few words the
commonwealth turned into a republic, which is no part of the scheme proposed by
this bill.
END QUOTE
Again;
30 QUOTE
Otherwise the constitution might be amended, and by a few words the commonwealth
turned into a republic, which is no part of the scheme proposed by this bill.
END QUOTE
END QUOTE 16-3-2005 correspondence to Malcolm Turnbull
35 .
END QUOTE Chapter 006
And this is the problem with the Australia Act and other conduct by State Parliaments to amend
their State Constitutions and that is that the politicians, and the judiciary following suit, have
40 time and again manipulated their powers to oust the right of the People as if this somehow would
legally permit them to do their destructive work.
.
As I pointed out in my submissions before the County Court of Victoria on 19 July 2006 that
what was in fact achieved with the unconstitutional amendments to the Victorian Constitution
45 Act (such as the 1975 version) was that neither politicians, judges/lawyers, etc were lawfully
appointed.
.
Again;
50 QUOTE
p 592 9-3-2009
p593
“No doubt it is the duty of the court to look at the object of an act in determining what is the
court to endeavour to carry out that object by making something an offence which the
5 END QUOTE
.
When we look at the various State constitutions then they were amended since the Federation to
accomplish what actually was prohibited/unconstitutional;
.
QUOTE
15 no longer supreme. Our parliaments at present are not only legislative, but
20 instead of parliament being supreme, the parliaments of a federation are coordinate
25 sole arbiter and interpreter of the constitution.
QUOTE
.
It should be obvious that because the State constitutions were the old colonial constitutions and
so minus the legislative powers that had been transferred to the Commonwealth of Australia
30 there is no way a State Parliament somehow could then ignore this and recreate (as Queensland
appeared to do to go back to its Constitution Act 1867) what was now a defunct Constitution
relating to a time that existed no more.
.
Let simplify the argument as an example.
35 .
A shopping centre owner is faced with that a major retailer opposes a smaller retailer to carry
certain products and warns the shopping centre owner that either he gets rid of the smaller
retailer of the pulls out of the shopping centre altogether, and ensures also that the major retailer
in future has all rights to dictate who shall or shall not be permitted to be a retailer in this
40 shopping centre. The shopping complex owner facing that he has existing leases that he cannot
undo then decides that what he can do is to go back to the original application to local council to
approve the complex and amend his original request with the insertion of that the major retailer
that would be established in the centre would be entitled to dictate the right of anyone else to
lease in the centre and that all leases will be automatically subject to this condition without
45 needing to be stipulated otherwise. While this kind of legal trickery may suit the major retailer in
reality such kind of nonsense could never be permitted. The retaiilers who had their leases cannot
be denied by this kind of legal twisting to have their leases diminished in any way.
.
Likewise, the People of the colonies prior to Federation entered in a compact with all other
50 Colonies that they would form a Federation under the Crown.
p 593 9-3-2009
p594
.
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about
5 to commit to the people of Australia a new charter of union and liberty; we are about
to commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
10 new charter is to be given by the people of Australia to themselves.
END QUOTE
.
Therefore the Constitution belong to the people and not to the politicians and judges.
.
15 The people agreed between themselves that they will have a long lasting Constitution under the
British Crown and as a matter of fact rejected the republic referendum as to make clear that one
hundred years later they still maintained their views to remain united under the British Crown.
.
20 QUOTE
provided for an Executive which is charged with the duty of maintaining the
people.
25 END QUOTE
.
Therefore, elected Members of Parliament, being it State and/or Federal cannot upon their own
wimps undermine the constitutional arrangements put in place by the People as to do so they
would act without legal authority as they can only act “as the agents of the people”.
30 .
Fancy engaging a lawyer to act on your behalf in a litigation regarding a alleged speeding
offence and next the lawyer is making some agreement with the prosecutor that in future you will
be Eating a certain cereal for breakfast.
.
35 This may sound utter nonsense but this is basically reflecting what the politicians have been
doing to vandalise the Federal and/or the State constitutions.
.
Their powers are to “as the agents of the people” and at no time where they given any powers to
amend any Constitution without the approval by way of State/Commonwealth referendum. As
40 such, whatever alleged substitution or amendment may have been allegedly made to any
State/Commonwealth Constitution is therefore ULTRA VIRES and so without the force of law.
Judges who disregard the Federal compact in my view are TRAITORS to the very people they
have to serve.
.
45

QUOTE
50 and the states on terms that are just to both.
p 594 9-3-2009
p595
END QUOTE
And
QUOTE Mr. OCONNOR (New South Wales).-
The protection of this Constitution is given, not for the Senate for the time being, but for
5 the people of the states whom the Senate represents.
END QUOTE
And
QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
10 proposed law has to go through, and the opportunity afforded to a member of either House
or a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives
to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
15 interpretation of the rules of procedure. It only requires one member of the Senate to call
the attention of the President to the fact that a Bill is introduced contrary to the
Constitution for that proposed law to be ruled out of order. It does not require a
majority of the states to insist that the Constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the Constitution. Neither House
20 could pass the standing order which would give the majority power to dissent from the
Speaker's or President's ruling. The standing orders only confer certain explicit power.
They give no power to either House to pass an order which would enable its members to
amend the Constitution.
END QUOTE
25 .
Again
QUOTE Mr. CARRUTHERS (New South Wales).-
It does not require a majority of the states to insist that the Constitution shall be
obeyed, because a majority of the states cannot by resolution infringe the
30 Constitution.
END QUOTE
.
Therefore the so called CoAG (Council of Australian Governments) has no constitutional powers
to circumvent the Constitution!
35 .
QUOTE Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When
40 once that Constitution is framed we cannot get behind it.
END QUOTE
.
QUOTE Mr. THYNNE:
45 I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:
p 595 9-3-2009
p596
above and beyond the ordinary legislative bodies, whether federal or state
legislatures, existing under the constitution.
END QUOTE
And
5 QUOTE Mr. THYNNE:
END QUOTE
.
QUOTE
25 Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution
No. 5:-
The inhabitants of each of the states of federated Australasia ought to be allowed to

choose, and if they see fit from time to time to vary, the form of state government under
which they desire to live. Provision should therefore be made in the federal constitution
30 which will [start page 478] enable the people of each state to adopt by the vote of the
majority of voters, their own form of state constitution.
Question proposed.
Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do
it with the utmost respect to the distinguished gentleman who has moved it. My point
35 of order is that the resolution goes beyond our instructions. We have been sent here
for one object and one object only, and that is, to prepare a scheme for the framing of
a federal constitution. Anything outside of these prescribed words cannot be dealt
with under the commission in virtue of which we have come here.
END QUOTE
40 And
QUOTE
Dr. COCKBURN: I think we have nothing whatever to do with deciding the details
of the state constitutions. On the other hand, I think it appertains to the functions of this
Convention to decide that the power of framing a constitution shall be in the hands of the
45 several states. At present the legislatures of the various colonies can only be altered
p 596 9-3-2009
p597
with the consent of the Imperial Government. Is it intended that that shall remain? When
we have a federated Australasia, in which we have state legislatures and a federal
legislature, is it intended that the state legislatures shall have the power of altering their
constitutions at will or not? From that point of view I think the proposition put forward by
5 the hon. member, Sir George Grey, is decidedly within the powers of the Convention, the
power to lay down a general rule, without touching the details of any individual
constitution, that the various states should have the power of framing their own
constitutions according to the will of the majority of the people of those states.
END QUOTE
10 .
Again
QUOTE
according to the will of the majority of the people of those states
END QUOTE
15 .
QUOTE Mr. OCONNOR.-
20 case the Constitution will be above Parliament, and Parliament will have to conform
to it.
END QUOTE
.
25 QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
END QUOTE
And
30 QUOTE
Mr. BARTON.- The position with regard to this Constitution is that it has no
legislative power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
35 .
QUOTE
END QUOTE
40 .
As the State Constitutions are subject to the Commonwealth of Australia Constitution Act 1900
(UK) which has embedded in it;
.
QUOTE
are all alike subjects of the British Crown.
END QUOTE
50 .
p 597 9-3-2009
p598
And
QUOTE
5 Constitution? Mr. Barton was not present when I made my remarks in proposing the
clause. I then-anticipated the point he has raised as to the position we occupy as subjects of
the British Empire. I took occasion to indicate that in creating a federal citizenship,
10 scope of the Constitution to do that. We might be citizens of a city, citizens of a
colony, or citizens of a Commonwealth, but we would still be, subjects of the Queen.
END QUOTE
.
Therefore if the constitution did not allow for the removal of Australian s to be subjects of the
15 British empire then any conduct to the contrary, including the Australia Act both the UK and
Australian versions must be ULTRA VIRES in that both seek to achieve what is not permitted by
the Constitution.
.
Because Section 128 effectively prevents any British legislation to amend the Constitution then
20 clearly the australia Act (UK) for that is in conflict to its own constitution act of 1900 and so not
valid.
.
A constitution act cannot be amended unless it is by an amending constitution Act which the
Australia act 1986 (UK) never was.
25 .
As indicated above it relied upon the Westminster Act 1931 to that the Commonwealth of
Australia was a dominion which has been shown above never was and never was intended to be.
.
Therefore, for all purposes and intend the Australia Act 1986 (UK) and the Australia Act
30 1986(Cht) are a legal nullity regarding the Commonwealth of Australia.
.
Fancy a lawyer acting in a matter and involving both the Crown in right of the Commonwealth
and the Crown in right of the State, but where somehow some States no longer use the Crown but
the State itself. One has to question then has to question the status of Queensland.
35 .
Fictitious example;
.
HIS HONOUR; Yes.
.
40 PROSECUTOR: I appear for the Crown but understand that the State of Queensland seeks
leave to intervene and as such will first allow him to address this court.
.
HIS HONOUR; Yes.
.
45 DEFENDANT: Sir, I have filed my OBJECTION TO JURISDICTION and object to
any leave to intervene being granted to the State of Queensland..
.
HIS HONOUR; Yes.
50 .
p 598 9-3-2009
p599
INTERVENING COUNSEL; Your Honour, I am appearing for the State of Queensland

seeking leave to intervene for the Crown in right of the State of Queensland and for the
State of Queensland in right of the State.
.
5 HIS HONOUR; Can you explain your double standing?
.
INTERVENING COUNSEL; Your Honour, the State of Queensland under the federal
compact is therefore appearing before you in right of the Crown in the State of Queensland,
however because there are also internal State matters relevant I am instructed to appear on
10 behalf of the State of Queensland in right of the State.
.
HIS HONOUR; You refer to the Crown, which Crown are you referring to?
.
INTERVENING COUNSEL; if it may please Your Honour I am appearing in right of the
15 Crown under the Queen of Australia.
..
HIS HONOUR; I am just going to interlude your presentation as to something I deem is
relevant before you embark upon your further presentation. I recall that we both enrolled at
the Bar and both swore an oath to Her Majesty the Queen of the United Kingdom some 30-
20 odd years ago and as such I like you to clarify as to which Queen you are now serving?
When did you renounce your alliance with the British Crown and which Queen is not
relevant to an oath to become a member of the bar?
.
INTERVENING COUNSEL; Your Honour, I admit that indeed I made an oath to Her
25 Majesty Queen Elizabeth of the United Kingdom when I was admitted to practice and I
have never changed that. However, I am now standing before you serving both the Queen
of Australia in right of the Crown in the State of Queensland and also without the Queen of
Australia the State of Queensland. As such, I am presenting myself as a QC (Queens
Counsel) in regard of matters in right of the Crown and as SC (Senior Council) in right of
30 pure Queensland State matters.
.
HIS HONOUR; And just for my personal information your assistant has he any particular
alliance?
.
35 INTERVENING COUNSEL; I understand that he is employed by the British Government
to assist me and is under Her Majesty the Queen of the United Kingdom.
.
HIS HONOUR; Are you aware of the decision of Sue v Hill?
.
40 INTERVENING COUNSEL; Of course Your Honour where heather hill having been a
foreigner to the British Crown had no legal standing to be a Senator in the Federal
Parliament.
.
HIS HONOUR; Have you often been in a Court room?
45 .
INTERVENING COUNSEL; I respectfully question the importance of this question. But
yes, over the decades countless times.
.
HIS HONOUR; Have you ever noticed there is a picture of Her Majesty in the Court
50 room?
p 599 9-3-2009
p600
.
INTERVENING COUNSEL; I did and in fact I notice one in this Court room.
.
HIS HONOUR; Can you then tell me which Queen is displayed on this picture which has
5 been on this wall at least some 30 years?
.
INTERVENING COUNSEL; Well, pending the point of view one takes it is either Her
Majesty Queen Elizabeth II Queen of the United Kingdom or it is Her Majesty Queen
Elizabeth II Queen of Australia.
10 ..
HIS HONOUR; Which one did you say you swore alliance to?
.
INTERVENING COUNSEL; Her Majesty Queen Elizabeth II Queen of the United
Kingdom
15 .
HIS HONOUR; by which Queen did you obtain your QC title?
.
INTERVENING COUNSEL; Her Majesty Queen Elizabeth II Queen of the United
Kingdom
20 .
HIS HONOUR; But you are not representing Her majesty in right of the British Crown,
are you?
.
INTERVENING COUNSEL; That is correct.
25 .
HIS HONOUR; And you never attained the QC title from your Queen Elizabeth II Queen
of Australia?
.
INTERVENING COUNSEL; That is correct.
30 .
HIS HONOUR; Then why do you present yourself in right of Her Majesty Queen of
Australia if you were never admitted to serve her majesty as such?
.
INTERVENING COUNSEL; I understand that the Parliament simply took it upon itself
35 to change matters and this resulted in the change of naming. That is all.
.
HIS HONOUR; I mentioned Sue v Hill. Didn’t the High Court of Australia oust Heather
Hill for being a foreigner not entitled to be in the parliament?
.
40 INTERVENING COUNSEL; That is correct.
.
HIS HONOUR; and you are serving a foreign Queen?
.
INTERVENING COUNSEL; Not really because the parliament decided otherwise.
45 .
HIS HONOUR; Are you trying to tell me that your oath of alliance to the British Crown is
worthless as you will go along with whatever Parliament may dictate even if it might be
unconstitutional?
.
p 600 9-3-2009
p601
INTERVENING COUNSEL; I do not know if this is unconstitutional, as all I know is

that the parliament did so.
..
HIS HONOUR; Say, you are in Indonesia and there they legislate that all Australians are
5 now subject of the State of Indonesia is that meaning you go along with that?
.
INTERVENING COUNSEL; I never could as I made an oath to Her Majesty and no one
could interfere with that. Oops, I got the drift of Your Honour. As I understand it Your
Honour is trying to make clear that no parliament can interfere with the birth right or
10 otherwise with the oath of alliance of any person.
..
HIS HONOUR; Seems you are learning.
.
INTERVENING COUNSEL; I concede to this.
15 ..
HIS HONOUR; Now, let me then place the next question to you. Under which queen was
this Court established?
.
INTERVENING COUNSEL; I understand that this was under Her Majesty Queen
20 Elizabeth II of the United Kingdom. As I recall on that occasion Her Majesty personally
attended at the opening.
..
HIS HONOUR; As Queen of Australia?
.
25 INTERVENING COUNSEL; I think Your Honour knows better then that as this was
more then 30-years ago and the Queen of Australia didn’t exist then other then in title but
not as now has been accepted in Sue v Hill.
.
HIS HONOUR; Now let me get to the point of you seeking leave to intervene. The
30 defendant’s argument is that the defendant committed no offences as subject of the British
Crown as his birthright is under the British Crown. He claims that the State of Queensland
had no constitutional right to rob him of his birthrights of being a subject of the British
Crown and that regardless of what Sue v Hill may state otherwise he maintains he is for all
purposes and intend a subject of the British Crown and entitled to be dealt with by a Court
35 that is under the Her Majesty Queen Elizabeth II Queen of the United Kingdom. His
argument is therefore that he doesn’t require to provide any taxation returns to any
purported organ of the Crown that is argumentative the Queen of Australia for the
independent nation Australia as he argues that no such nation exist as the Commonwealth
of Australia was created as a POLITICAL UNION and no more. As I understand it from
40 the material you submitted to this Court you seek leave to intervene on behalf of the State
of Queensland both with the Crown as Queen of Australia and without the Crown in right
of the State. Now the problem I have with this and so also with the prosecutors case is that I
swore an oath to Her Majesty Queen Elizabeth II Queen of the United Kingdom and am
bound to uphold those principles and laws enacted as such. I did not renounce my oath and
45 quite frankly have no intention of doing so. As such, I require to uphold the laws that are
under the seal of Her Majesty Queen Elizabeth II of the United Kingdom. So I shall. Hence,
for me to grant you leave to intervene you must present to me justification for me to allow
this by presenting that you represent the Crown in the State of Queensland under Queen
Elizabeth II Queen of the United Kingdom. And as it is very clear that you are unable to do
50 so I have no alternative but to dismiss your application for this.
p 601 9-3-2009
p602
.
INTERVENING COUNSEL; If it pleases Your Honour.
.
HIS HONOUR; It doesn’t please me at all as to dismiss an application but I am to uphold
5 my oath of office and in the circumstances not permitted to do otherwise. Yes Mr
Prosecutor, do we need to start all over again with you on the same issue or are you going
to reconsider your case against the defendant? He is entitled to a FAIR and PROPER trial
and this is to be appearing before a Court under Her Majesty Queen Elizabeth II Queen of
the United Kingdom, and I invite you to do better then the intervener and enlighten the
10 Court how you can clarify matters?
.
PROSECUTOR; May I inquire if Your Honour is trying to say I am not allowed to
prosecute?
.
15 HIS HONOUR; I did no such thing. The defendant has questioned the jurisdiction of the
Court and he is entitled that you prove to the Court and also to him that this Court has
jurisdiction. Now, it is a simple matter for you to prove jurisdiction. If you cannot then
there is no case against the defendant.
.
20 PROSECUTOR; But the defendant already acknowledged that he didn’t submit tax
returns, as our evidence proves.
.
HIS HONOUR; You seem not to understand what I am on about. I am not the least
interested in what you may or may not have on evidence because this is immaterial to the
25 issue of jurisdiction. Unless you can prove to this court and so also The defendant that there
is jurisdiction for this Court to entertain the charges there is NO CASE TO ANSWER.
.
PROSECUTOR; But the taxation laws were assented to under Her Majesty Queen
Elizabeth II Queen of the United Kingdom via the royal assent provided by the Governor-
30 General way back in 1936, as far as I recall.
..
HIS HONOUR; is this meaning you are reverting back to the British Crown. Are you not
first going to seek the approval of the Federal Parliament to do so or is it that anyone can
make their own decision?
35 .
PROSECUTOR; The taxation laws never changed in that regard.
..
HIS HONOUR; And who now then gives royal assent to amendment of the taxation
legislation of 1936?
40 .
PROSECUTOR; Obviously that is the Governor-General!
..
HIS HONOUR; On who’s behalf?
.
45 PROSECUTOR; Naturally Her Majesty Queen Elizabeth II Queen of Australia?
..
HIS HONOUR; Am I to understand that you are prosecuting The defendant in regard of
provisions which may or may not be under the Queen of Australia or may or may not be
under the British Crown?
50 .
p 602 9-3-2009
p603
PROSECUTOR; At least something of the charges can be salvaged, can it not?

.
HIS HONOUR; Are you expecting me to work out for you which charges are relating to
which queen? Surely you should understand that this is not my position to do so. You
5 cannot come to this Court and expect a judicial officer, who requires to be impartial, to try
to figure out the best way to try to convict The defendant. This is not the function of the
court. As the Prosecutor the onus is upon you to present a case before this Court that is
sufficient for me to require The defendant to answer. The problem is that there appears to
be some identity crisis and this is precisely what The defendant made known in his material
10 that he submitted to object to the jurisdiction of this Court. If you wish to enforce laws that
are under the seal of the British Crown then you take the matter to the British courts. If you
desire to prosecute matters under the Queen of Australia then you take the matter to a Court
that is under the Queen of Australia. If you desire something else then device whatever
system you pursue but The defendant cannot be burdened in all this fancy argumentation.
15 He is entitled upon his birthrights and I for one cannot accept that any Parliament can
overrule the prerogative rights provided in his birthrights under the British Crown. For this
I strike out your application and direct that you may not institute any proceedings against
The defendant unless first granted leave by this Court to do otherwise. We need to protect
the weak and the vulnerable and others who by no deed of their own are seemingly robbed
20 of their birthrights merely because certain Members of Parliament may deem it acceptable
to themselves.
.
PROSECUTOR; Can I seek cost?
.
25 HIS HONOUR: Of course you may albeit you will not be certified for cost as I for one
have no intention doing so and more over I leave it up to The defendant to work out what
compensation he seeks from the those you representing and failing this I entitle The
defendant to apply to this Court for the Court to make orders for cost. I can assure you that
I consider your conduct as abhorrent and an invasion to his rights as a subject of the British
30 Crown and Plenty v Dillon should given an indication of what I am on about. I would
therefore urge you to be sensible and ensure that you do not waste this Courts time having
to make orders for cost because I would consider any such further litigation to be harmful
to The defendant and this may further dramatically increase any cost ordered in his favour.
Sir, in case you didn’t follow it all I have struck out the charges on basis of lack of
35 jurisdiction as you submitted and have made orders for cost albeit not set any amount as I
leave this up to you and the Prosecutor to work out. Failing this you may file an application
in this court and I will then attend to the matter to provide what I deem appropriate cost in
your favour. You are free to leave. Case adjourned
.
40 DEFENDANT; Thank you sir.
.
PROSECUTOR; Thank you Your Honour.
.
We seem to have laws that are given royal assent under one monarch and then amendments
45 under another.
.
We have that alliance is given to one monarch and then serving another.
.
As I have set out in other published books taxation laws are required to be passed with the
50 Appropriation Bills as one cannot have taxation laws in perpetual without Appropriation Bills
p 603 9-3-2009
p604
being in existence for the relevant expenditure, as the Framers of the Constitution made clear
they need to be presented together.
.
The right of any person to be a British subject by birthright cannot interfere with his/her right to
5 be a federal Member of Parliament. This, no matter what the High Court of Australia fancy to
make out in Sue v Hill.
.
These and numerous other issues are extensively canvassed by Mr G. H. Schorel-Hlavka in his
published books in considerable details published in the INSPECTOR-RIKATI® series and I
10 refer to them.
.
Then consider Hansard2-3-1898 Constitution Convention Debates;
QUOTE
15 among which would probably be the right to negotiate for commercial treaties with foreign
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
20 END QUOTE
Fancy the Commonwealth to have substituted the Commonwealth of Australia Constitution Act
1900 (UK) with that of their own likewise worded Commonwealth of Australia Constitution Act
1900 (Aust).
25 .
.
30
35
40
One person-two kingdoms

45 .
http://www.geocities.com/englishreports/77ER377.html
Calvin's Case 7 Coke Report 1a, 77 ER 377

Report Date: 1608
50 CALVIN'S CASE.
p 604 9-3-2009
p605
Trin. 6 Jac. 1.
.
The High Court of Australia in Sue v Hill got it totally wrong
5 QUOTE
45. As I pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte
Te[54], Re Patterson has no ratio decidendi. The four majority Justices were Gaudron,
Kirby and Callinan JJ and myself. Gaudron J held that Taylor was a member of the
body politic that constituted the Australian community and that British citizens
10 who were members of that body politic and had been in Australia before 1987[55],
were not aliens within the meaning of the Constitution. Kirby J held that Taylor was
not an alien when he arrived in Australia, that he "had been absorbed into the people of
the Commonwealth"[56] and that the Parliament could not retrospectively declare him
to be an alien. I held that British immigrants who settled in Australia before 1973 were
15 subjects of the Queen of Australia and could not be "aliens" for the purpose of the
Constitution. I selected 1973 as the earliest date on which the constitutional power
to legislate with respect to aliens could apply to British immigrants. I did so
because 1973 was the year in which the Parliament enacted the Royal Style and
Titles Act 1973 (Cth). But I expressed the view that the relevant date "maybe
20 later"[57]. Callinan J agreed with the reasoning of both Kirby J and myself.
46. Although Re Patterson has no ratio decidendi, "it still has precedential authority in
respect of circumstances that 'are not reasonably distinguishable from those which gave
rise to the decision[58]'." It is not possible, however, to say that the present case is not
reasonably distinguishable from Re Patterson. The only material fact in Re Patterson
25 that was common to all majority judgments was that Taylor had arrived in
Australia in 1966. Re Patterson is therefore only an authority for the proposition
that a British citizen is not an alien if that person arrived in Australia in or before
1966 and has lived here permanently since that time. Even if the relevant year be
extended to 1973, it does not assist the applicant in this case: he did not migrate to
30 Australia until 1974. Accordingly, the applicant cannot rely on Re Patterson as an
authority that supports his claim that the Act cannot constitutionally authorise the
Minister to revoke his visa and render him liable to deportation.
47. Despite Re Patterson having no precedential value for the purpose of this case, I remain
convinced that Re Patterson was correctly decided. Having read the reasons of
35 Callinan J, I am also convinced that his Honour is correct in holding[59] that the
evolutionary process by which the term "subject of the Queen" in s 117 of the
Constitution became "subject of the Queen of Australia" was not completed until
3 March 1986[60]. Until that date, therefore, Australians, born or naturalised, and
British citizens permanently residing in Australia owed their allegiance to the
40 "Crown of the United Kingdom of Great Britain and Ireland"[61]. Until that date,
they were subjects of the Queen of the United Kingdom of Great Britain and Ireland for
the purpose of s 117 of the Constitution, and were entitled to the protection of that
section. When the evolutionary process ended, British citizens then permanently
residing in Australia became subjects of the Queen of Australia by the same
45 evolutionary process that had transformed the Queen of the United Kingdom of Great
Britain and Ireland into the Queen of Australia. For the reasons that I gave in Re
Patterson, subjects of the Queen of Australia are not aliens for the purpose of the
Constitution.
p 605 9-3-2009
p606
END QUOTE
And
QUOTE
48.
5 49. KIRBY J. In Calvin's Case[62], Sir Edward Coke CJ held that a man born in
Scotland after the accession of King James I to the English throne was not an
"alien" to England. He appealed to many authorities. One of them involved Saul
of Tarsus, later the Biblical Apostle St Paul[63]. Facing punishment for preaching
his beliefs, Paul appealed to his Roman nationality. Although a Jew, he had been
10 born a Roman citizen. By Roman law, he was entitled to be freed upon payment of
a sum of money. Coke CJ remarked that "such a plea as is now imagined against
Calvin might have made St Paul an alien to Rome"[64].
And
59. Principally, the Minister contends that the applicant is an "alien" and thus subject to
15 laws made under that constitutional head of legislative power[72]. The Minister also
argues that the laws are supported by the federal legislative powers with respect to
"immigration"[73] and "external affairs"[74]. Sotto voce, the Minister suggests that
the laws are also sustained by the implied federal power to make laws concerning
Australia's nationhood.
20 60. The applicant is entitled to succeed. The purported actions of the Minister are not
sustained by any valid federal law. No more than if he were now an Australian citizen
with a criminal record can the applicant be expelled from Australia on that ground.
He is a member of the Australian community. He has been so since his arrival.
Although not naturalised and thus not, as such, an Australian citizen, he was not
25 on arrival, and could not thereafter lawfully be made, an "alien". As well, he has
passed beyond the process of "immigration". His expulsion from Australia is an
internal and not an external affair to this country. No implication of the Constitution
supports the challenged laws in his case. The Case Stated must be answered
accordingly. In answering it, this Court should not use chance happenings affecting its
30 composition to change its recent statements of the governing law.
And
The course of this Court's authority on deportation
64. The immigration and other powers: For a very long time Australian constitutional
doctrine has accepted that the federal constitutional power with respect to
35 "immigration"[83] is not open-ended. It does not permit the indefinite regulation by
federal law of persons who once were (or whose parents or family were)
immigrants. The applicable power is addressed, as such, to "immigration". This is
a process. It is not addressed, as such, to "immigrants".
65. Thus, as early as 1925, in Ex parte Walsh and Johnson; In re Yates[84], Knox CJ,
40 considering the deportation of two persons who were British subjects and who had
immigrated to Australia in 1893 and 1910 respectively, concluded that the power
over immigration "should not be construed as extending to persons who had made
their homes in Australia and become part of its people". This Court held that the
validity of a provision authorising deportation as a law with respect to immigration
p 606 9-3-2009
p607
"depends on this conclusion"[85]. According to this approach, a point was reached

where "a person who has immigrated into Australia will pass beyond the range of
the [immigration] power when the act of immigration is at an end - that is when
that person has become a full member of the Australian community"[86]. No
5 reliance was placed in that case upon the "aliens" power because each of the persons
concerned was a subject of the King[87].
END QUOTE
10
Thomas Jefferson:
.
QUOTE
15 "The germ of destruction of our nation is in the power of the judiciary, an irresponsible
body - working like gravity by night and by day, gaining a little today and a little
tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until
all shall render powerless the checks of one branch over the other and will become as
venal and oppressive as the government from which we separated.".
20 END QUOTE
.
QUOTE
Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other
25 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 a sentry. As regards a law passed by a state, every
man in the Federal Parliament will be a sentry, and the whole constituency
30 behind the Federal Parliament will be a sentry.
END QUOTE
.
QUOTE 22-11-2008 correspondence Mr. Kevin Rudd, PM
WITHOUT PREJUDICE
35 Kevin Rudd PM 22-11-2008
.
C/o; The Hon Robert McClelland MP, Attorney-General
Cc; The Hon. Malcolm Turnbull, MP
.
.
Kevin, this correspondence will be forwarded to you via the Attorney-General in that the volume
is too large to be forwarded through your email system, nevertheless I do seek from you an
appropriate response.
45 .
The heading of this correspondence will also be forwarded to you via your ordinary email
facilities so you will be aware of the document having been forwarded to the Attorney-General.
.
p 607 9-3-2009
p608
Do try to avoid having someone writing back to me that they cannot give legal advise to me as
this comes across that the person concerned hasn’t got a clue what I am writing about. I can
assure you the last thing I would want is legal advise of those who themselves fails to understand
and/or comprehend what the Constitution is about.
5 The matter deals with not just Section 96 of the Constitution but also the constitutional validity
of the Commonwealth to give away $300 million dollars to municipal councils and I like a
precise set out within which alleged constitutional powers such payments are made. After all that
is what I am entitled to know when my money is used in such manner, and for the record this
correspondence is a formal objection to the misuse of Consolidated Revenue in that manner.
10 Also within which constitutional powers the Commonwealth can deal with a so called
Australian Council of Local Government, not being part of the constitutional framework at all.
.
QUOTE Chapter Section 96 true application
Chapter Section 96 true application
15 * Gerrit, what is your view about Section 96 true application?
.
**#** INSPECTOR-RIKATI®, As I have set out below, this Section 96 is not a section that
ordinary can be used, as is ongoing being done, but is only permissible to be used if a State is in
extreme financial difficulties, such as the first “ten years” after federation, and there after, as set
20 out below. Now, the first thing that should be considered is why did the Framers of the
Constitution in the first place refer to “ten years” and not just make it a permanent fixture. The
reason being that because of the change of systems in customs and duties it was anticipated that
some States may get into financial problems not being able to raise the monies required for its
expenditure otherwise needed and so a State could fail to meet its obligations to pay loans, etc. It
25 was held that after the “ten years” unlikely such a situation were to eventuate but just in case
that it was to happen then in extreme circumstances the Commonwealth could still assist. As
such the time limit of “ten years” is where the colonies already may have loans to pay out and as
such the federation suddenly would cause financial harm to it (as a State) that could not
otherwise have been contemplated and after “ten years” it would have been deemed that
30 ordinary the States could have set up their financial arrangements to provide for sufficient
monies for the Appropriation Bills before the Parliament and as such only extreme cases of
financial circumstances then could be warranted to invoke Section 96.
.
35 96 Financial assistance to States
During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State
on such terms and conditions as the Parliament thinks fit.
40 .
QUOTE
Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the mind of the
statistician and the financier more than to the mind of a humble layman, and I am sure that if there is one
45 member of this Convention competent to solve the problem of capitalizing a financial discrepancy it is Mr.
Walker. However, I have pointed out what seems to me to be the difficulty to which Mr. Henry has addressed
his amendment, and I feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
condition of things after the expiration of the five years, is absolutely without force as applied to the condition
of things to which Mr. Henry's amendment is directed. But I go further than that, and I take up the view which
50 was dealt with by Mr. O'Connor on the broad ground-and that is the position to which I wish to direct the
attention of members of the Convention-of whether it is politic or right to introduce this amendment into the
Constitution. If this power is implied in the Constitution, then the amendment merely asserts and makes
p 608 9-3-2009
p609
absolutely clear a power which the Commonwealth might exercise if the necessity arose. On the other
hand, if it is not implied in the Constitution, it seems to me that it is a power that ought to be in the
Constitution, so as to enable the Commonwealth to do what I believe it would be the disposition of the
Federal Parliament to do, namely, to come to the aid of any state which sought its interference to
5 protect that state from financial disaster or financial strait. I admit all the possibilities on the two
grounds put by Mr. Holder-that there is a possibility of this provision leading to reckless financing on
the part of the states, and also the other ground that it imposes an obligation on the Commonwealth,
and a difficulty with which the Federal Parliament and the Federal Executive may have to deal. But
those two things do not seem to me to outweigh the advantage of having this power clearly expressed in
10 the Constitution, to enable the Federal Parliament to give that assistance which might be absolutely
essential to the stability and even to the existence of a particular state. Now, I will suppose the case of a
state in which such a condition of things has arisen. But again, I say, I do not believe that such a
condition of things would ever occur in any of the states of this Commonwealth. Still, suppose a state
got into financial embarrassment, and there was a tendency towards, or a talk of, repudiation, why
15 should not the Federal Executive and the Federal Parliament, in the interests of the Commonwealth,
come to the assistance and relief of that state? Would it not be infinitely better that the Commonwealth
should exercise a power of that kind than that it should allow a blemish to be put on the honour and
good faith of the entire Commonwealth, which would result from any one state repudiating its
obligations?
20 END QUOTE
.
Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR 575
(23 August 1957) (From High Court of Australia;
QUOTE DIXON CJ
25 (2) the object is outside the powers of the Commonwealth,
END QUOTE DIXON CJ
.
QUOTE DIXON CJ
31. Before the meaning of s. 96 and the scope of the power it gives had been the subject of judicial
30 decision no one seems to have been prepared to speak with any confidence as to its place in the
constitutional plan and its intended operation. It may be said perhaps that while others asked where
the limits of what could be done in virtue of the power the section conferred were to be drawn, the
Court has said that none are drawn; that any enactment is valid if it can be brought within the literal
meaning of the words of the section and as to the words "financial assistance" even that is unnecessary.
35 For it may be said that a very extended meaning has been given to the words "grant financial
assistance to any State" and that they have received an application beyond that suggested by a literal
interpretation. (at p611)
END QUOTE DIXON CJ
.
Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution should be correct,
that every clause should fit into every other clause; when we consider the great amount of time, trouble,
and expense it would take to make any alteration, and that, if we have not made our intentions clear,
45 we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
the people of United Australia and create dissatisfaction with our work, it must be evident that too
much care has not been exercised.
.
50 The CHAIRMAN.-I do not think I can rule this proposed amendment out of order. Every clause, or
nearly every clause, in a Bill in some way qualifies the preceding clauses. They extend the operation of
those clauses, and, in some instances they limit the operation of the clauses. This is not a distinct
negative, and I think it would be unduly curtailing the power of the committee to arrive at such a conclusion
as they may think fit if I ruled this out of order.
55 .
p 609 9-3-2009
p610
For so far I have been able to detect not a single judge did actually consider that Section 96 was
only to be used in extreme circumstances if ever at all. After all, why bother to work out over so
many years a Constitution if Section 96 could give ultimate powers to the Commonwealth of
Australia? While it was held that the States handed over their income tax powers to the
5 Commonwealth the truth is that the moment the Commonwealth commenced to legislate as to
income taxation the States no longer had this legislative powers as their taxation powers are on
subjects the Commonwealth doesn’t legislate upon. It means that if the Commonwealth were to
legislate as to land tax then the States no longer can do so. Hence the usage of Section 96 is
unconstitutional as it seeks to give the States powers to levy income tax on a subject that became
10 exclusive powers of the Commonwealth once it commenced to legislate as to income tax.
Again, the States have their taxation powers but only upon the residue of subjects the
Commonwealth does not legislate upon.
* I am puzzled now. I understood that once the commonwealth legislated upon any subject listed
in Subsection 51 of the Commonwealth of Australia Constitution Act 1900 (UK) then the States
15 lost its legislative powers upon that subject?
.
**#** I must admit that this is a confusing matter but proper reading of the Hansard readings of
the intention of the Framers of the Constitution is that other as to the legislative powers of
taxation when the Commonwealth commences to legislate in regard of any listed subject then;
20 a. The States no longer have any further legislative powers in such a subject.
b. The prior enacted State laws (since federation) will be subject to Commonwealth
legislative provisions
c. The Commonwealth legislation must not offend existing colonial legislation (as such not
reduce legal benefits existing in colonial legislation) that was not amended since
25 federation.
d. Colonial legislation that was amended since federation will be subject to Commonwealth
legislation as any other prior State legislation is.
What this means is, as the Framers of the Constitution extensively debated, was that the
commonwealth could not defeat certain colonial benefits and any legislation must provide for
30 those existing colonial benefits, however, the States could not amend colonial laws existing prior
to federation as to try to shore up further rights before the Commonwealth were to legislate as
then the colonial legislation having been amended no longer were superior and the
Commonwealth would be free to legislate as if the colonial law was a State legislation. This was
done because there was concern that some States might seek to make amendments to colonial
35 legislation as to increase certain rights for their citizens before the Commonwealth could
commence to legislate, and as such this was a deterrent against States to amend their colonial
legislation for this purpose. However where it came to taxation matters the Framers of the
Constitution held that each State would be free to legislate upon taxation matters on subjects the
Commonwealth had not covered in its taxation legislation. As such once the Commonwealth
40 introduced income tax legislation then the States were barred from this field and no longer could
raise income taxes. However, it didn’t prevent the states to raise taxes otherwise not covered by
the Commonwealth. It means that once the Commonwealth was to commence to legislate as to
land taxes then the States no longer can do so.
Chapter V—The States
45 106 Saving of Constitutions
p 610 9-3-2009
p611
The Constitution of each State of the Commonwealth shall, subject

to this Constitution, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be, until altered in accordance with the
5 Constitution of the State.
107 Saving of Power of State Parliaments
Every power of the Parliament of a Colony which has become or
becomes a State, shall, unless it is by this Constitution exclusively
vested in the Parliament of the Commonwealth or withdrawn from
10 the Parliament of the State, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be.
108 Saving of State laws
Every law in force in a Colony which has become or becomes a
15 State, and relating to any matter within the powers of the
Parliament of the Commonwealth, shall, subject to this
Constitution, continue in force in the State; and, until provision is
made in that behalf by the Parliament of the Commonwealth, the
Parliament of the State shall have such powers of alteration and of
20 repeal in respect of any such law as the Parliament of the Colony
had until the Colony became a State.
.
South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65 CLR
373 (23 July 1942) (From High Court of Australia;
25
QUOTE Starke J
In my opinion, the object of the Act is not merely to grant financial assistance to the States, but there is
linked up in it an object and an end that is inconsistent with the limited grant of power given by sec. 96
to the Commonwealth, namely, making the Commonwealth the sole effective taxing authority in
30 respect of incomes and compensating the States for the resulting loss in income tax. The argument that
the States Grants Act leaves a free choice to the States, offers them an inducement but deprives them of and
interferes with no constitutional power, is specious but unreal. And it does not meet the substance of the
States' position that the condition of the Act relates to a matter in respect of which the Commonwealth has no
constitutional power whatever, and yet by force of the condition and not as a consequence of the exercise of
35 any power conferred upon the Commonwealth, the grant of assistance to the States is withdrawn unless
they comply with its terms.
End QUOTE
Again, the States lost their legislative powers as to income taxation the moment the
Commonwealth legislated for income taxation and the States therefore could not give up some
40 legislative powers by way of a purported Section 96 grant which they no longer had.
.
Either the Commonwealth legislate or the States but not both!
.
* Can I then ask is in your view the Road funding to which so much attention was given
45 constitutionally valid?
.
**#** Not at all as Section 96 is used like a prostitute as to be used for everyone where in fact
the intention was if possibly never have it used at all.
.
p 611 9-3-2009
p612
I could not detect a single judge who bothered to consider why Section 96 was in fact in the first
place submitted by the Framers of the Constitution, then thrown out but later inserted when the
referendums were failing, where the people were concerned that if by the federation a state was,
so to say, go belly up then there be no rescue by the Commonwealth.
5 You may also consider;
99 Commonwealth not to give preference
The Commonwealth shall not, by any law or regulation of trade,
commerce, or revenue, give preference to one State or any part
thereof over another State or any part thereof.
10
105 Taking over public debts of States
The Parliament may take over from the States their public debtsas
existing at the establishment of the Commonwealth, or a proportion
thereof according to the respective numbers of their people as
15 shown by the latest statistics of the Commonwealth, and may
convert, renew, or consolidate such debts, or any part thereof; and
the States shall indemnify the Commonwealth in respect of the
debts taken over, and thereafter the interest payable in respect of
the debts shall be deducted and retained from the portions of the
20 surplus revenue of the Commonwealth payable to the several
States, or if such surplus is insufficient, or if there is no surplus,
then the deficiency or the whole amount shall be paid by the
several States.
.
25 Section 105 clearly is limited to debts existing at the time of federation.
Section 99 however is a Section that in fact does apply to Section 96.

30 that every clause should fit into every other clause; when we consider the great amount of time, trouble,
we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
35 .
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order. Every clause, or
40 negative, and I think it would be unduly curtailing the power of the committee to arrive at such a conclusion
.
What this means is that while the Commonwealth can come to the aid of a State in severe
financial crisis upon such terms as thinks fit, as to avoid, say it going belly up, it must do so in an
45 appropriate manner as not to discriminate against other States. As such, the Commonwealth must
seek to recover any aid as much as possible, where reasonable, so as not to discriminate against
other states.
.
As I have set out below
p 612 9-3-2009
p613
You would undermine the entire Constitution if Section 96 could be deemed to stand on its own.
Section 96 was inserted for extreme circumstances only and not otherwise and not at all for the
States to use this as a backdoor manner to fund road projects, etc. Neither for the commonwealth
to use general taxes and as such basically blackmail the States to hand over their legislative
5 powers, etc, as otherwise it will be starved of monies. As the Framers of the Constitution made
clear that every clause relates to a previous clause and as such Section 96 is limited by Section
99.
Indeed as will be shown the road funding and other grants interferes with the very reason why
the Inter-State Commission was set up and is constitutionally a body that MUST exist, and it
10 alone can deal with any grants that is not ordinary for the whole of the Commonwealth.
.
101 Inter-State Commission
There shall be an Inter-State Commission, with such powers of
adjudication and administration as the Parliament deems necessary
15 for the execution and maintenance, within the Commonwealth, of
the provisions of this Constitution relating to trade and commerce,
and of all laws made thereunder.
102 Parliament may forbid preferences by State
The Parliament may by any law with respect to trade or commerce
20 forbid, as to railways, any preference or discrimination by any
State, or by any authority constituted under a State, if such
preference or discrimination is undue and unreasonable, or unjust
to any State; due regard being had to the financial responsibilities
incurred by any State in connexion with the construction and
25 maintenance of its railways. But no preference or discrimination
shall, within the meaning of this section, be taken to be undue and
unreasonable, or unjust to any State, unless so adjudged by the
Inter-State Commission.
103 Commissioners’ appointment, tenure, and remuneration
30 The members of the Inter-State Commission:
(i) shall be appointed by the Governor-General in Council;
(ii) shall hold office for seven years, but may be removed within
that time by the Governor-General in Council, on an address
from both Houses of the Parliament in the same session
35 praying for such removal on the ground of proved
misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix;
but such remuneration shall not be diminished during their
continuance in office.
40 .
Clearly, if Section 96 of the Constitution was to be intended to be used for grants regarding road
works, etc, then this nullifies the very purpose of the Inter-State Commission. The Inter-State
Commission was purposely set up as to be allowed to discriminate between States where in the
interest of a State this was deemed necessary and where the Commonwealth could not otherwise
45 be permitted to do so, such as fund infra structure of a port of navigational rivers as then the
Inter-State Commission is to deal with this and would not be bound like the Commonwealth for
the “whole of the Commonwealth” but could allocate funding for improvements as may be most
suitable to each State concerned. As such, if there was a need to for proportion usage of funding
it is for the Inter-State Commission to do so.
50 Getting back to the legislative powers we should consider the following;
Commonwealth of Australia Constitution Act (UK)
(The Constitution)
p 613 9-3-2009
p614
.
51 Legislative powers of the Parliament [see Notes 10 and 11]
The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the
5 Commonwealth with respect to:
(vi) the naval and military defence of the Commonwealth and of

the several States, and the control of the forces to execute and
maintain the laws of the Commonwealth;
10
119 Protection of States from invasion and violence
The Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State,
against domestic violence.
15
120 Custody of offenders against laws of the Commonwealth
Every State shall make provision for the detention in its prisons of
persons accused or convicted of offences against the laws of the
Commonwealth, and for the punishment of persons convicted of
20 such offences, and the Parliament of the Commonwealth may make
laws to give effect to this provision.
.
As a CONSTITUTIONALIST I for one understand why the Framers of the Constitution
provided the various sections. What this means is that the Commonwealth while having
25 legislative powers as to the armed forces cannot enter any State as to enforce its own laws
(Commonwealth law) but can only assist a State in case of domestic violence (such as rebellion)
where as the enforcement of Commonwealth law is beyond the State boundaries. As the Framers
of the Constitution made clear that Commonwealth law can only be enforced within the States by
the local police and by State Courts. In fact on 19 July 2006 the County Court of Victoria upheld
30 also my submission that the commonwealth has no constitutional powers to interfere with State
Courts procedures such as to pursue the usage of “AVERMENT”. And in fact the state of
Victoria did legislate that in regard of Bass Strait Commonwealth could use AVERMENT and as
such this underlined that unless a State specifically provided for this the Commonwealth cannot
legislate and enforces its own laws. This also because the Framers of the Constitution made clear
35 that State Courts could nullify Commonwealth law!
QUOTE
That, after the words "every such trial shall," the words "unless Parliament otherwise provides" be inserted.
Mr. WISE-That gives the Executive power to change the venue.
40 Mr. HIGGINS.-No-the Parliament. It will simply give Parliament the power to declare under what
circumstances and in what cases there shall be a discretion to have the trial in any other state. The law as it
stands in the present Bill is that the trial, as a matter of constitutional law, shall be held in the particular
state where the offenc e was committed. I propose to enable the Federal Parliament to say that in certain
cases and on certain Contingencies, and with certain restrictions and limitations, the trial may be held in some
45 other place. I think that is simply another instance of trusting the Federal Parliament to put the matter on the
best basis.
Mr. WISE (New South Wales).-The only class of cases contemplated by this section are offences
committed against the criminal law of the Federal Parliament, [start page 354] and the only cases to
which Mr. Higgins' amendment would apply are those in which the criminal law of the state was in
50 conflict with the criminal law of the Commonwealth; in any other cases there would be no necessity to
change the venue, and select a jury of citizens of another state. Now, I do not know any power, whether in
modern or in ancient times, which has given more just offence to the community than the power possessed by
p 614 9-3-2009
p615
an Executive, always under Act of Parliament, to change the venue for the trial of criminal offences, and I do
not at all view with the same apprehension that possesses the mind of the honorable member a state of affairs
in which a jury of one state would refuse to convict a person indicted at the instance-of the Federal Executive.
It might be that a law passed by the Federal Parliament was so counter to the popular feeling of a particular
5 state, and so calculated to injure the interests of that state, that it would become the duty of every citizen to
exercise his practical power of nullification of that law by refusing to convict persons of offences
against it. That is a means by which the public obtains a very striking opportunity of manifesting its
condemnation of a law, and a method which has never been known to fail, if the law itself was
originally unjust. I think it is a measure of protection to the states and to the citizens of the states which
10 should be preserved, and that the Federal Government should not have the power to interfere and prevent the
citizens of a state adjudicating on the guilt or innocence of one of their fellow citizens conferred upon it by
this Constitution.
END QUOTE
As such Subsection 51(vi) is not some right for the Commonwealth to deploy soldiers of
15 Australian Federal Police or others to enforce Commonwealth law because this never was
intended by the Framers of the Constitution in fact rejected; See also my published book with
Chapter 557 –Sovereign State rights -our own Police.
Sir GEORGE GREY:
20 Now, look how we stand. From the Atlantic, on the one side, back again to the same ocean really, I may say,
upon the other side, there lies a great space in the world in which there is no standing army at the present
day, no [start page 143] preparation made for military attacks, for military defence-the United States-with, I
believe, 12,000 men to keep the Indian population down, and the whole is at peace and repose; her young men
are not drawn into conscriptions, not prepared to be fit victims for slaughter, not certain to be
25 slaughtered in some few years' time in some obscure corner or other, but all devoting their energies to the
development of the country, marrying, becoming famers, or filling different trades and professions, not shut
up in barracks, excluded from knowing what the affection of a wife and the love of children really is. Here, all
are totally different, and for heaven's sake let us keep in our present position, and not go off into the mania
which has made Europe the nations of standing camps which it is.
30 .
Mr. DIBBS:
." There may be something more dignified in the use of the word "state." We are not going to become
provinces. I do not think we are going to give up the individual rights and liberties which we possess,
35 and which those who have gone before us have fought for, to become mere provinces under a federal
form of government. We may take the more dignified form of "states." Whilst we have endeavoured to
put before the people of New South Wales, in these resolutions, a sort of opiate, something assuring to their
minds that in joining a federal union we give up nothing of our territorial rights, words have been inserted in
them which I shall do my utmost in Committee to strike out-
40 except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and
authority of the national federal government.
I do not know the meaning of these words, and no hon. gentleman who has yet spoken has given any clear
interpretation of them. It is sufficient for us, in enunciating a principle upon which the basis of a
constitution shall be prepared, to see that the territorial rights and privileges of each colony shall be
45 preserved to each state but when you come to consider the condition of a surrender, and the question of
the power of enforcing such surrender is placed in the hands of the federal government, then your
Mr. GILLIES: The resolution does not say that!
Mr. DIBBS: Well, I shall be very glad to have any other meaning placed upon it. It will be for the federal
50 government to claim, and I take it, for the federal government to enforce.
And
Mr. DIBBS:
p 615 9-3-2009
p616
The question of creating a standing army is one which, to my mind, is almost more repulsive than the
question of readjustment of territorial boundaries. It means the existence in our midst of a certain number
of idle men-men sharpening their knives and their swords for the first fitting opportunity of fleshing them on
the people of their own country, because we have no other enemies. We, in Australia-federated Australia, I
5 may take it, because the matter is one which applies to the whole-have no enemies within our borders; we
have no Indians to dispute with us the possession of the soil; we have no powerful Maori race, to fight, as was
once the case in New Zealand, for the territory the right to which belonged to the Maoris themselves. We
have no enemies within, and the only thing we have to fear is the possibility of any assault on the
mother country by her enemies from without, unless indeed the creation of a standing army proves a
10 menace to the people of Australia by the existence of an armed force for unlawful purposes. This
question of the creation of a military force is one of the blots upon these resolutions. We want no military
force within New South Wales. All we want to do is to make every man who is either a native of the soil,
or one of ourselves by reason of his taking up his residence amongst us, prepare to resist possible
invasion from without. Who are our enemies? Who are our enemies but the enemies of England, and
15 they, so long as we remain under the Crown, will be dealt with by an outer barrier, an outer bulwark in
the defence of Australia, in the shape of the navy of Old England. But we have no enemies within, and
there is no necessity to fasten the curse of a standing army upon us. As was pointed out by the hon. member,
Sir George Grey, yesterday, in his interesting speech, we have no necessity to keep a large standing army at a
large cost to the people of the country, [start page 185] when we have no enemies with whom they will have
20 to fight. Our own police are quite sufficient for the preservation of order within. In the event of invasion
from without, so long as we remain under the Crown, our enemies, being the enemies of England, will be
dealt with before ever an attempt is made to invade these shores; and when the day of invasion comes the
people of this country will rise as one man to defend their hearths and homes from any possible aggressor. I
look upon the question of the creation of a military power within a territory under the Crown as a menace to
25 the people who are to continue as British subjects. We have been sent here by our various parliaments to
frame a constitution under the Crown-under the Crown, bear in mind. That is the idea which has been put
forward in every speech that has been made. I presume, then, that the members of the Convention are
prepared at once to give the go-by altogether to the idea of imperial federation. So long as we remain in our
present position as individual colonies, we are imperially federated, and we can be imperially federated
30 in no stronger manner than in connection with our relation to the mother country. We are as much
imperially federated as the people living in the cities of London, Liverpool, Manchester, or other large centres
of population. We are a portion of the British Crown, joined together by the most solemn ties and obligations;
and we have to bear the brunt of any misfortune which may fall upon us in connection with any attack upon
our shores by reason of our enemies being the common enemies of England. We have already made certain
35 provision, partially of a federal character, to assist the Imperial Government in the protection of our shores
from without; but let us set our faces as a young nation-if I may use the word "nation" in advance-against
standing armies; let us set our face once and for ever against the creation of anything like a military
despotism. We are met here under the Crown, and I must say that, as one possessing a slight tinge of
republican notions, as one who sees that the future of Australia is to be what was prophesied of it fifty
40 years ago, by poets who have written of what the future of Australia is to be-having a certain tinge of
republicanism in my nature, the result naturally of my being a descendant of an Englishman, I was
surprised to find a gentleman occupying a position under the Crown proposing what 100 years ago
would have been simply regarded as high treason. Why, the other day the hon. member, Mr. Munro, made
a proposal with regard to one phase of the question which made me ejaculate, "One strand of the painter has
45 gone."
Mr. MUNRO: What was that?
Mr. DIBBS: The hon. member proposed to take from us, as British subjects, the chartered right which
we possess of appeal to the Crown.
.
50 Is should therefore be clear that Subsection 51(vi) does not at all provide some license for the
Commonwealth to enforce its own laws against citizens of a State but they have to pursue
enforcement through the State Courts.
.
(vi) the naval and military defence of the Commonwealth and of
55 the several States, and the control of the forces to execute and
maintain the laws of the Commonwealth;
.
p 616 9-3-2009
p617
Likewise Section 96 is not some provision that entitles the Commonwealth to circumvent
constitutional prohibitions/limitations but is a provision that is to be used, if ever at all, if a State
is in dire straits as to on a financial collapse. To accept otherwise would totally defeat other
provisions stated in the Constitution;
5 .
QUOTE Mr. BARTON.-
If we are going to give the Federal Parliament power to legislate as it pleases with regard to
Commonwea lth citizenship, not having defined it, we may be enabling the Parliament to pass
10 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 QUOTE
.
15 Likewise so with Section 96, as to interpret by the Courts in a manner it has been done so far it
would defeat the principles elsewhere stated in the Constitution. Therefore what is required is to
reconsider the true intention of the Framers of the Constitution in regard of Section 96 and below
I seek further to present some of their intentions as well as present some of the statements in
various judgments albeit to quote all of them would not be reasonable to do in this document as it
20 would require hundreds of additional pages. I do not view this is needed with the general
presentation in this document.
.
Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR 575
(23 August 1957) (From High Court of Australia; 23 August 1957; 204 KB)
25 QUOTE DIXON CJ
18. The constitutional basis for this enactment is s. 96. Section 96 forms part of the financial clauses of the
Constitution which we know as a matter of history were the final outcome of the prolonged attempts to
reconcile the conflicting views and interests of the colonies on that most difficult of matters. (at p603)
19. The fact that it came out of the Premiers' Conference of 1899 (see the Victorian statute Australasian
30 Federation Enabling Act 1899 (No. 1603) particularly s. 2 and first schedule), when the opening words of s.
87 (the Braddon clause) were inserted, does not assist in its construction nor ought the fact to be used for such
a purpose, notwithstanding that now it has a place, however inconspicuous, as part of the history of the
country. But it may explain why the terms in which it was drafted have been found to contain possibilities not
discoverable in the text as it emerged from the Conventions, and also why the same opening words were
35 adopted as in the Braddon clause as to the duration of the power, although in a context where they seem to
have no purpose or effect that is intelligible, or at all events credible. It is, perhaps, as well to set out s. 96. It
is as follows: - " 96. During a period of ten years after the establishment of the Commonwealth and thereafter
until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such
terms and conditions as the Parliament thinks fit." One may guess that s. 96 was regarded as connected with
40 the Braddon clause, s. 87, and that the purpose of the opening words was to enable the Parliament to terminate
the operation of both together. See Quick and Garran: The Annotated Constitution of the Australian
Commonwealth (1901) pp. 869, 870, and per Evatt J., in Deputy Federal Commissioner of Taxation (N.S.W.)
v. W. R. Moran Pty. Ltd. (1939) 61 CLR, at p 803 . But s. 51 (xxxvi.) confers upon the Parliament legislative
power "with respect to matters in respect of which this Constitution makes provision until the Parliament
45 otherwise provides". On its face par. (xxxvi.) presupposes that the Parliament is authorised to provide
otherwise as to "matters" with respect to which the Constitution immediately provides: they will be matters
defined, like those enumerated in s. 51, in such a way as to be subjects "with respect to" which laws may be
made. Section 87 does deal with such a matter, viz. the disposal of the net revenue of the Commonwealth. In
the same way subject matters "with respect to" which legislative powers may be exercised are specified by the
50 other provisions of the Constitution, except s. 96, in which the phrase occurs "until the Parliament otherwise
provides" (cf. ss. 3, 7, 10, 22, 24, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73 and 97). (at p604)
p 617 9-3-2009
p618
20. In all such cases the Constitution makes directly an interim provision for the subject matter and s. 51
(xxxvi.) operates to confer power on the Parliament to make thereafter such provisions with respect thereto as
from time to time may appear appropriate. But s. 96 does not deal with a legislative subject matter; it does not
make some interim provision with respect thereto. It confers a bare power of appropriating money to a
5 purpose and of imposing conditions. Either the power is terminated or it continues. It would be easy to
understand if it terminated when another provision under or "with respect to" s. 87 was made but, however
much one may suspect it, there is nothing in the Constitution itself to warrant any such construction. The
conclusion reached in Quick and Garran: The Annotated Constitution of the Australian Commonwealth
(1901) p. 870 was that the section might be considered for all practical purposes as a permanent part of the
10 Constitution; and the Constitutional Commission of 1927-1929, after hearing the meaning discussed of the
limitation to "a period of ten years after the establishment of the Commonwealth and thereafter until the
Parliament otherwise provides", reported that they considered the words to be ineffective and recommended
that they be repealed. In the cases in this Court in which s. 96 has been considered, except in the passage to
which a reference has already been made in the judgment of Evatt J. in Moran's Case (1939) 61 CLR, at p 803
15 , it seems to have been taken for granted that the scope and purpose of the power conferred by s. 96 was to be
ascertained on the footing that it was not transitional but stood with the permanent provisions of the
Constitution. (at p605)
21. On this basis it is apparent that the power to grant financial assistance to any State upon such terms and
conditions as the Parliament thinks fit is susceptible of a very wide construction in which few if any
20 restrictions can be implied. For the restrictions could only be implied from some conception of the purpose
for which the particular power was conferred upon the Parliament or from some general constitutional
limitations upon the powers of the Parliament which otherwise an exercise of the power given by s. 96 might
transcend. In the case of what may briefly be described as coercive powers it may not be difficult to perceive
that limitations of such a kind must be intended. But in s. 96 there is nothing coercive. It is but a power to
25 make grants of money and to impose conditions on the grant, there being no power of course to compel
acceptance of the grant and with it the accompanying term or condition. (at p605)
END QUOTE
South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65 CLR
30 373 (23 July 1942) (From High Court of Australia; 23 July 1942; 242 KB)
QUOTE Starke J
linked up in it an object and an end that is inconsistent with the limited grant of power given by sec. 96
35 respect of incomes and compensating the States for the resulting loss in income tax. The argument that
States' position that the condition of the Act relates to a matter in respect of which the Commonwealth has no
40 any power conferred upon the Commonwealth, the grant of assistance to the States is withdrawn unless
they comply with its terms. The real object of the condition is that already stated, and it is in my
judgment neither contemplated by nor sanctioned by the Constitution, and in particular by sec. 96
thereof. As I have said, all State legislation and functions might ultimately be so controlled and
supervised. The possibility of the abuse of a power is not, however, an argument against the existence of
45 a power. But if the extent of the power claimed by the Commonwealth leads to "results which it is
impossible to believe ... the statute contemplated ... there is ... good reason for believing that the
construction which leads to such results cannot be the true construction of the statute" (The Queen v.
Clarence[143]). A legitimate use of the powers contained in sec. 96 may be found in the Road Grants Case
(Victoria v. The Commonwealth[144]), where the Commonwealth and the State of Victoria entered into an
50 agreement, the object of which was to aid the State in the construction and reconstruction of certain roads.
Incidentally the making of roads would be an aid to trade and commerce, and possibly also to defence: See
Federal Aid Roads Act 1926 (No. 46 of 1926). No doubt means can be found to give the States financial
assistance without crippling them in the exercise of their powers of self-government if the Commonwealth
taxation creates economic difficulties for them. But I cannot agree that the provisions of sec. 96 enable the
55 Commonwealth to condition that assistance upon the States abdicating their powers of taxation or,
which in substance is the same thing, not imposing taxes upon income. In my opinion, it follows that the
p 618 9-3-2009
p619
States Grants (Income Tax Reimbursement) Act 1942 is not within the power or authority of the
Commonwealth Parliament.
END QUOTE
.
5 Commonwealth of Australia Constitution Act 1900 (UK)
96 Financial assistance to States
10 on such terms and conditions as the Parliament thinks fit.
.
QUOTE
to any State
END QUOTE
15 .
QUOTE
on such terms and conditions as the Parliament thinks fit
END QUOTE
.
20 Considering Section 116;
116 Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious test
25 shall be required as a qualification for any office or public trust
under the Commonwealth.
.
It therefore should be considered if this means that the Commonwealth can make demands that
monies provided are to be used for a certain religion only and those who do not practice a
30 religion are denied the funding. If one were to accept that the Commonwealth cannot insist of
making demands that are contrary to Section 116 provisions then clearly, it means that the
Commonwealth can only make demands “on such terms and conditions as the Parliament thinks
fit” relevant to the conditions of the assistance, being it how such monies are applied and any
terms of repayment, etc. Not that the monies can be used to give the Commonwealth powers to
35 pursue unconstitutional conduct it cannot have otherwise.
.
question-and the Constitution gives it no power to legislate in regard to that question-the Ministers for the
40 time being in each state might say-"We are favorable to this law, because we shall get £100,000 a year, or so
much a year, from the Federal Government as a subsidy for our schools," and thus they might wink at a
violation of the Constitution, while no one could complain. If this is to be allowed, why should we have
these elaborate provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies may unanimously
45 agree? Why have this provision for a referendum? Why consult the people at all? Why not leave this
matter to the Ministers of the day? But the proposal has a more serious aspect, and for that reason only
I will ask permission to occupy a few minutes in discussing it.
.
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p620
.
5 that every clause should fit into every other clause; when we consider the great amount of time, trouble,
we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
10 .
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs) is I think correct
in the history of this clause that he has given, and this is [start page 672] one of those instances which should
make us very careful of following too slavishly the provisions of the United States Constitution, or any other
15 Constitution. No doubt in putting together the draft of this Bill, those who were responsible for doing so used
the material they found in every Constitution before it, and probably they felt that they would be incurring a
great deal of responsibility in leaving out provisions which might be in the least degree applicable. But it is
for us to consider, looking at the history and reasons for these provisions in the Constitution of the United
States, whether they are in any way applicable; and I quite agree with my honorable and learned friend (Mr.
20 Carruthers) that we should be very careful of every word that we put in this Constitution, and that we should
have no word in it which we do not see some reason for. Because there can be no question that in time to
come, when this Constitution has to be interpreted, every word will be weighed and an interpretation given to
it; and by the use now of what I may describe as idle words which we have no use for, we may be giving a
direction to the Constitution which none of us now contemplate. Therefore, it is incumbent upon us to see that
25 there is some reason for every clause and every word that goes into this Constitution.
.
Mr. BARTON.-this Constitution is to be worked under a system of responsible government
And
30 Mr. BARTON.- We have simply said that the guarantee of the liberalism of this Constitution is
responsible government, and that we decline to impair or to infect in any way that guarantee.
And
Mr. BARTON.- Of course it will be argued that this Constitution will have been made by the
Parliament of the United Kingdom. That will be true in one sense, but not true in effect, because the
35 provisions of this Constitution, the principles which it embodies, and the details of enactment by which
those principles are enforced, will all have been the work of Australians.
And
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,
40 therefore, it can only act as the agents of the people.
.
Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten,
.
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
50 of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
55 with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
p 620 9-3-2009
p621
.
Mr. BARTON.
If we are going to give the Federal Parliament power to legislate as it pleases with regard to
5 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."
.
10 Again;” that would really defeat all the principles inserted elsewhere in the Constitution”.
.
It therefore should be clear that to avoid to “defeat all the principles inserted elsewhere in the
Constitution”
.
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection of our interests,
but also for the just interpretation of the Constitution:
.
20 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable member is quite right in
saying that it took place under the next clause; but I am trying to point out that laws would be valid if
they had one motive, while they would be invalid if they had another motive.
.
25 Mr. ISAACS.-The court would not consider whether it was an oversight or not. They would take the
law and ask whether it complied with the Constitution. If it did not, they would say that it was invalid.
They would not go into the question of what was in the minds of the Members of Parliament when the law
was passed. That would be a political question which it would be impossible for the court to determine.
And
30 Mr. BARTON.-Are not the annual services the annual expenditure proper to the public service?
Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public servant. That
would not come within the ordinary annual services.[start page 2003] It would not be proper to the public
service of the Commonwealth. It would not be a payment for services rendered in the future, but for services
in the past.
35 .
And
.
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no special court, but the
general courts would undoubtedly protect the states. What Mr. Isaacs seeks to do is to prevent the question of
40 ultra vires arising after a law has been passed.
[start page 2004]
Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.

And
Sir JOHN DOWNER.-
45 No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses of Parliament act
capriciously and variously from day to day-allow this 'tacking' to go on if the Houses choose to agree to it-let
the Houses do one thing one day and another the next, and do not bother about altering the Constitution, but
trust the Parliament." Of course; but Parliament must only be trusted when it is within the Constitution.
The Senate of to-day and the House of Representatives must not be put in a position superior to the
50 Constitution.
And
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p622
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on
terms that are just to both.
Mr. DEAKIN.-It is made for the lawyers under this clause.
Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no Constitution is required
5 at all; it can simply be provided that a certain number of gentlemen shall be elected, and meet together, and,
without limitation, do what they like. Victoria would not agree to that. But there is a desire to draw the very
life-blood of the Constitution, so far as the states are concerned, by this insidious amendment, which would
give the Houses authority from time to time to put different constructions on this most important part
of the Constitution. I hope we will do as we have done in many instances before, in matters that have been
10 much debated-adhere to the decision we have already arrived at.
And
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a proposed law has
to go through, and the opportunity afforded to a member of either House or a member of the Executive to call
attention to any infraction or infringement of the Constitution. It does not require a majority of the members
15 of the House of Representatives to insist that the Constitution shall be obeyed in the matter of procedure; it
only requires one solitary member to rise to a point of order, and the Speaker has to give a legal interpretation
of the rules of procedure. It only requires one member of the Senate to call the attention of the President
to the fact that a Bill is introduced contrary to the Constitution for that proposed law to be ruled out of
order. It does not require a majority of the states to insist that the Constitution shall be obeyed, because
20 a majority of the states cannot by resolution infringe the Constitution. Neither House could pass the
standing order which would give the majority power to dissent from the Speaker's or President's ruling. The
standing orders only confer certain explicit power. They give no power to either House to pass an order which
would enable its members to amend the Constitution.
And
25 Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of the provision is to
protect the [start page 2010] Senate from being coerced by the House which has the power of the purse
primarily. But the question between us is not whether you should take away that protection, but whether you
should allow the Senate itself to give up, whether by accident or design, on any particular occasion, the
protection which the Constitution has implanted there for its benefit. The protection of this Constitution is
30 given, not for the Senate for the time being, but for the people of the states whom the Senate represents.
The question really is whether, for the purposes for which this provision is designed, that is to say, the
protection of the people of the states, as states, it is necessary that this provision should stand which makes a
Bill illegal if these provisions are not complied with, or whether it should be made merely a matter of
parliamentary order between the two Houses?
35 And
Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned by the honorable
and learned gentleman, if the rights we are giving under this Constitution to the House which represents the
states are to be of any value at all, we should not put it into the power of a majority in the House of
Representatives or in the Senate to bargain them away, or to give them away at their will.
40 And
Mr. OCONNOR.-
But these difficulties can be overcome by the proper consideration of the terms of the Constitution. I
submit that the question raised here is a very much more important one than it seems to be thought by some
honorable members. I think it is the very essence of the Constitution that we should preserve the form which
45 has been adopted here, and that we should make the necessity of its adoption imperative upon the
Government and the Parliament, subject to the liability of their acts being declared invalid by the Supreme
Court in the event of the directions of the Constitution not being followed.
And
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the objection, not, I
50 hope, in [start page 2014] any captious spirit. I quite see the stand-point from which Mr. Isaacs and others
have addressed themselves to the question. But it seems to me that the argument which has been raised by Mr.
Isaacs as to this last sub-section of clause 55, is really an argument for greater clearness in the Constitution;
because it seems to be admitted that if the words of the Constitution are placed beyond dispute, then the
confusion to which my honorable and learned friend alludes cannot arise. Consequently, the real meaning of
55 the argument is this-"I could not say what I have said if your Constitution were absolutely clear." This is
an objection to the form in which the provision stands, and an objection to form only, and not to substance,
p 622 9-3-2009
p623
because it is admitted that these matters can only arise by way of confusion, and consequently it must be
admitted that they can only arise where there is room for confusion in the Constitution.
.
5 Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able to understand.
.
Again;
This is a Constitution which the unlettered people of the community ought to be able to understand.
10 .
It would be fanciful to argue that the ordinary person in the community would accept that you
have a Constitution but the Commonwealth can disregard it when providing funding, as the High
Court of Australia argued in its judgment.
Or;
15 QUOTE
Mr. OCONNOR .-That is begging the question. Even under the circumstances mentioned by the honorable
and learned gentleman, if the rights we are giving under this Constitution to the House which represents the
states are to be of any value at all, we should not put it into the power of a majority in the House of
Representatives or in the Senate to bargain them away, or to give them away at their will.
20 END QUOTE
.
CoAG (Council of Australian Governments) therefore neither have any constitutional powers to
circumvent Section 128 of the Constitution referendum to make some kind of agreement to give
the Commonwealth legislative powers where it had none! Likewise so any purported Council of
25 Municipal Councils!
.
Mr. BARTON.-
Let us examine the matter a little. Is it right that there should be tacking? There is not an honorable member in
30 the Convention who will not say that it is wrong. This clause in itself is a clause to prevent tacking, therefore,
it is a clause to do right-for whom?-for the people themselves. What is the good of our arguing this
question on the basis of the rights, inter se, of the two Chambers, when the whole life of both these
Chambers is that they are servants of the public? For whom are these protections in clause 55 introduced?
Is it for the Senate they are introduced? No, it is for the public.
35 .
And this is what the High Court of Australia in my view appears to ignore. The right of the
public and that the Commonwealth cannot be spending moneys not permitted by the Constitution
and neither as to seek to defeat the principles stated elsewhere in the Constitution.
Also the following needs to be considered;
40
Mr. DEAKIN.-
. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start page 2042] as he
pointed out, if there be embedded in the Constitution a direct enactment that no proposed laws for taxation
45 including more than the one subject of taxation, and no proposed Appropriation Bill going outside the
ordinary services of the year, can be legally dealt with, both the Speaker of the House of Representatives
and the President of the Senate would not only be authorized, but would be imperatively required, in
the discharge of their duty, to rule such a measure out of order at any stage of its existence.
And
50 Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a proposed law has
to go through, and the opportunity afforded to a member of either House or a member of the Executive to call
attention to any infraction or infringement of the Constitution. It does not require a majority of the members
of the House of Representatives to insist that the Constitution shall be obeyed in the matter of procedure; it
only requires one solitary member to rise to a point of order, and the Speaker has to give a legal interpretation
55 of the rules of procedure. It only requires one member of the Senate to call the attention of the President
to the fact that a Bill is introduced contrary to the Constitution for that proposed law to be ruled out of
p 623 9-3-2009
p624
order. It does not require a majority of the states to insist that the Constitution shall be obeyed, because
a majority of the states cannot by resolution infringe the Constitution. Neither House could pass the
standing order which would give the majority power to dissent from the Speaker's or President's ruling. The
standing orders only confer certain explicit power. They give no power to either House to pass an order which
5 would enable its members to amend the Constitution.
.
Again
. It only requires one member of the Senate
.
10 Therefore it must be clear that if just one of the Senators is doing his/her job ordinary people of
the general community would not need to pursue legislation that is ULTRA VIRES to be
defeated in court, at great financial risk of the citizen.
Again;
It does not require a majority of the states to insist that the Constitution shall be
15 obeyed, because a majority of the states cannot by resolution infringe the
Constitution.
.
Yet, being it CoAG or the now Australian Council of Local Government, there is no
constitutional validity to circumvent the Section 101 of the Constitution Inter-State
20 Commission.
.
Mr. OCONNOR.-No, but it clearly means that, and it would be a most disastrous commentary upon the
efficiency of these financial proposals if it was necessary at the same time to provide for the insolvency of
25 states which might take place under them.
An HONORABLE MEMBER.-Embarrassment.
Mr. OCONNOR.-The honorable member may call it embarrassment or any other euphemism, but it means
that we may by these proposals reduce a state to such a condition that it will have to go cap in hand to the
Commonwealth Parliament and to ask for financial assistance.
30 Mr. SYMON.-You do not say that a state would become insolvent for that purpose.
Mr. OCONNOR.-No, I do not say that.
Mr. REID.-It is as nicely expressed as in the 60 per cent. advertisement.
Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions which must exist
before this provision can be brought into operation will see that it assumes that the states must be reduced
35 to a condition of pauperism before they can take advantage of it.
Sir JOHN FORREST.-What would you do if they were?
Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is some power
implied in the Constitution to give such aid. Now, from the consideration and study which I have been
able to give to the Constitution, I have no hesitation whatever in saying that there is no such power
40 implied. The Constitution is formed for certain definite purposes. There are definite powers of legislation and
definite powers of administration, and the clause that the Right Hon. Sir John Forrest called attention to just
now-clause 81-expressly provides that the revenues of the Commonwealth shall form one consolidated
fund, to be appropriated for the public services of the Commonwealth in the manner and subject to the
charges provided in this Constitution.
45 Mr. WISE-The order and good government of the Commonwealth would come under the term "public
services of the Commonwealth."
p 624 9-3-2009
p625
Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of the powers of the
Commonwealth, especially when dealing with the expenditure of the money of the taxpayers. In such a
case there will be a great deal of care taken to keep the nose of the Federal Parliament to the grindstone in the
matter of this expenditure. I do not think any expenditure will be constitutional which travels outside
5 these limits. We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution
will be above Parliament, and Parliament will have to conform to it. If any Act were carried giving
monetary assistance to any state it would be unconstitutional, and the object sought would not be
attained. That brings me to the question of whether it is desirable that there should be any such power either
10 expressed or implied. I have no hesitation in saying that it would be a disastrous thing for the future of the
[start page 1109] Commonwealth if there was any such power given.
And
Mr. OCONNOR.-Unfortunately, things do happen in states that are not always creditable to the public
spirit of the people. We must take human nature as we find it. There is no doubt that a state might be in such
15 straits that it would unconsciously be influenced by the feeling that it had behind it, as a last resort, a power
that would save it from public bankruptcy. I have always regarded any dealing between the Commonwealth
and the state in matters of money as a thing to be deplored. I should have much preferred some system of
finance by which the states and the Commonwealth could have been absolutely independent in matters of
account and in matters of money. Unfortunately, that cannot be; but if we must have relations of this
20 kind between the Commonwealth and the states, let them be such that the states will have certain
definite rights which they can assert, and the Commonwealth definite rights which it can assert.
Mr. FRASER.-And duties.

Mr. OCONNOR.-And duties. Do not let us create a relationship between the states and the Commonwealth
in which one state may have the power to exact terms from the Commonwealth, while the Commonwealth
25 may be able to bring pressure to bear upon a state or its representatives. If that is possible under the
Constitution, you have at once the germs of corruption and improper influence, which may be used
disastrously in the interests of the whole people. If the financial provisions of the Constitution are
administered in the spirit in which I hope they will be administered, there can be no danger to any of the
states.
30
Mr. HENRY (Tasmania).-I beg to move-
That the following stand as a new clause of the Bill:-The Parliament may, upon such terms and
conditions and in such manner as it thinks fit, render financial aid to any state.
35 It is generally recognised that there is a strong necessity for the Federal Parliament to have power in the
event of any state being seriously embarrassed financially to step in and give aid to that state. It is very
important that we should have an assurance embedded in this Bill that the Parliament shall have power in any
such contingency to afford the necessary aid. The question has been raised as to whether the Federal
Parliament has inherent power under this Constitution to grant such financial aid. I am not in a position to
40 express any opinion on that question. I leave it entirely to the legal talent of the Convention.
And
Mr. HENRY (Tasmania).-
I am content to leave that matter entirely to the Federal Parliament, because honorable members will
notice that this amendment states expressly "upon such terms and conditions, and in such manner, as
45 the Federal Parliament may decide?"
And
. I see no difficulty whatever in the Federal Parliament, in the event of a state being in a necessitous
50 condition, owing to a grave mistake on the part of the Federal Treasurer, having the power, and using
it, to borrow a sufficient amount of money to aid the necessitous state.
And
p 625 9-3-2009
p626
Without some such assurance as that the Federal Government may come to the aid of a state in a
necessitous condition, where the state has imposed as much direct taxation as it can carry, I fear that
some states may be deterred from entering into this Federation.
And
5 [start page 1102]
Sir GEORGE TURNER (Victoria).-I hardly like this amendment, because it is altogether too wide. Its
provision lasts for all time, and it will to my mind bring about continual pressure-
Mr. HENRY.-Limit it to five years.
Sir GEORGE TURNER.-If you limit it to five years it will still have the result of bringing about continual
10 pressure on the states by the Parliament to get better terms and conditions.
Mr. SYMON.-Don't you think the Commonwealth may be liable to the same pressure after the five years,
when they have control over the surplus? They may be pressed to come to the aid of the states.
Sir GEORGE TURNER.-I do not think Mr. Henry's willingness to limit the provision to five years gets rid
of my objections. It gets rid of one objection-that with regard to the provision being too wide; but there is still
15 the objection that there will be continual pressure by the states on the Federal Parliament, as there has been in
Canada (as our reading tells us), to get what are called better terms. Is it to be assumed that a state is to go
cap in hand to the Federal Parliament and say-"We are in such an unfortunate position that we cannot
ourselves carry on with the means at our disposal, and we want you to kindly give us some financial aid"?
The effect of such an application would be that the condition of that state's stock in the money markets of the
20 world certainly would not be as good as it was before the appeal to the Federation for financial aid.
Mr. DOBSON.-Would not the state, therefore, strive in every way to avoid asking for aid?
And
Sir GEORGE TURNER.-We do not know it; we may be of opinion here that it is so. But so far as this
provision is concerned, either the state must place itself in the position of appealing to the Federal Parliament
25 for aid, and thus advertising its bad financial position, or, as has been suggested, the state will not dare to
make the appeal, for the reasons I have mentioned. In the one case it would mean very severe loss to the state
that made the application; in the other it means that what we propose to insert is simply some-thing which we
know can never be taken advantage of. I believe in dealing with this question with regard to Western
Australia as one on which we can well base a scheme which will be beneficial to the colonies, and of which
30 Western Australia may fairly and justly take advantage without injuring her position in the money markets of
the world or otherwise. We have provided with regard to Western Australia that whatever loss is sustained
there, taking her own Tariff as against the uniform Tariff, an average is to be struck, and then whatever
Western Australia loses over and above that average is to be paid by the other states to her. Now, I feel that it
is hard on many of us who will suffer losses also, that we should have to put our hands in our pockets to help
35 a state whom our public will regard as a rich state.
And
Sir JOHN FORREST.-If the Federal Parliament has not that power, it certainly ought to have it, because
we have heard over and over again in this Convention that, should evil times fall on any state, the Federal
Parliament would never allow that state to come to disaster. It is all very well to talk like that, but if the
40 Federal Parliament has no power to do that, I do not see what good result will come from such declarations. I
think it ought to go without saying that the Federal Parliament which we are erecting should have
power to make terms and conditions with any state, in order to save its credit, if unhappily that step
should ever be necessary. And, as there may be a doubt about it, I am very much in accord with Mr. Henry's
proposal. I can see no harm whatever in it, because we have every one of us said over and over again that the
45 Federal Parliament will always take a great interest in the welfare of the states, and will take care that no
disaster ever comes to any of the states. Of course that must be taken reasonably. States must not be allowed
to be extravagant, get into difficulty, and then expect the Commonwealth to come to their rescue. But still, as
the words "upon such terms as it may think fit" are inserted, the proposal can do no harm, and there should
be no opposition to it. Honorable members may say that this power is inherent in the Commonwealth, but let
50 us make it perfectly clear by inserting this short clause.
And
p 626 9-3-2009
p627
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52 we find these
governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power and authority to
make laws for the peace, order, and good government of the Commonwealth.
5 We see there that the Commonwealth is named as distinguished from the states. We have our
Constitution framed in this way with a Senate to guard what? The interests of the states, so that the
Commonwealth shall not intrude one inch into what is retained as the executive rights and jurisdiction
of the states. Yet while the Commonwealth has not the power [start page 1112] to say one word in the
government of the states as to their local liabilities, as to the difficulties they may get into, yet we are told that
10 the Commonwealth is to be invited by express words on the face of the Constitution to assist the states and
have a sort of moral compulsion put upon it which would be very difficult to resist, and would lead to the
difficulties which have already occurred in America. I urge upon my honorable friends to put what they
choose into the Constitution to guard the solvency of the states. Nobody ventures to assert that the states are
insolvent, but if you take away their revenue, and leave them their liabilities, they stand an extremely good
15 chance of becoming insolvent. That is what we want to guard against. The best way is to secure them a fair
return of the surplus revenue on the face of the Constitution, making it part of the duty of the Commonwealth
to do so. That is a better course than to put in a clause here which practically asserts that if some of those
states go to the wall financially, we make it a sort of moral compulsion on the part of the Commonwealth to
come to their assistance.
20 Mr. LEWIS (Tasmania).-The two honorable members who have preceded me in discussing this clause
have assumed that this financial aid is to be given only, or at any rate mainly, in the case of the practical
insolvency of any state. I understand that what is intended by the clause is, that it should go very much
further. It includes the power of the Parliament to guarantee a loan to a state, or to lend the money to a state,
having raised it on its own security. The honorable and learned member (Mr. Glynn) has an amendment on
25 the notice -paper to the effect that a state should not borrow money except from the Commonwealth. It is to
empower the Commonwealth to guarantee the loans of a state, or to lend a state the money itself, that this new
clause is proposed, quite as much as to enable the Commonwealth to come to the assistance of a state which
may happen to be in embarrassed circumstances. Honorable members seem to ignore the fact that under this
clause Parliament will have the power to dictate the terms, conditions, and manner in which such
30 financial aid is to be granted. Surely that is ample protection. No state is likely to obtain that financial,
aid from the Federal Parliament unless its resources are entirely exhausted, and it has no other means
of maintaining its credit. I should like to hear it further argued as to whether this power is inherent in the
Constitution. I have grave doubts about it myself, and for that reason I desire to see this clause inserted in the
Constitution. I know it has not been moved by the honorable member (Mr. Henry) as a concession to popular
35 prejudice, or, as Mr. Wise has called it, a placard. The object is simply to place in the Constitution a
statement that the Commonwealth can come to the assistance of a state if it should be required. We
have, in the 52nd clause, handed over naval and military defences to the Commonwealth Parliament. It might
be fairly argued that having done so the Common-wealth is bound to protect every state from invasion from
outside. Yet we have not considered it to be an inherent right of the states to demand protection from
40 invasion, and we have considered it necessary to embody in the Constitution a clause providing that the
Commonwealth shall protect every state from invasion. If that is necessary in the case of an invasion of a
warlike nature, surely it is necessary to include in the Constitution a clause of a similar nature to
protect every state from financial disaster.
Mr. ISAACS.-A state might create its own liability to financial disaster; but it does not create its liability to
45 invasion by a foreign power.
Mr. LEWIS.-If the state creates its own difficulty, the Federal Parliament will have it in its power to
dictate the terms and conditions upon which alone it will me to the aid of any state.
[start page 1113]
Mr. DOBSON.-You do not always punish the sinner, even the financial sinner.
50 Mr. LEWIS.-Of course, this power is only optional. It is left entirely to the good sense of the Federal
Parliament. As has been said over and over again in this Convention, we must trust the Federal Parliament,
but at the same time we must give that Parliament the necessary powers to do what we desired it should do,
and amongst these powers we should give it a discretion to come to the financial aid of any state,
p 627 9-3-2009
p628
whether that aid is in the form of a guarantee of a loan or a direct loan, or whether it be the financial support
of a state which may be in embarrassed circumstances, and which may thereby endanger the credit of the
whole Commonwealth.
And
5 Mr. OCONNOR.-But that money could not be spent upon any object the Federal Parliament thought
fit.
Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. I see that,
according to the provision I have quoted, there is power given to the Federal Parliament to borrow money on
the credit of the Commonwealth, and I say again that I do not know of any limitation of the expenditure of
10 that money except the limitation which would be specified in the Loan Act authorizing the borrowing of the
money. Of course, these words cover the raising of the money for the building of railways for instance, and in
such a case the limitation would be the terms of the Loan Act. But is there anything anywhere to prevent a
Loan Act being passed by the Federal Parliament authorizing the raising of a certain sum of money, the
proceeds of which loan might be divided according to the terms of the Act among the states according to their
15 needs, or upon some other principle?
Mr. GLYNN.-The first three lines of clause 52 affect that point.
Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government
of the Commonwealth," not of the states.
Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-
20 The Parliament shall, subject to the provisions of this Constitution, have full power and authority to make
laws for the peace, order, and good government of the Commonwealth, with respect to all or any of the
matters following.
Well, that includes the borrowing of money.
Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow; the money is only
25 to be borrowed for the purposes of the Commonwealth.
Mr. REID.-Look at clause 81, where it is clearly set out that-
All revenues raised or received by the Executive Government of the Commonwealth, under the
authority of this Constitution, shall form one Consolidated Revenue Fund, to be appropriated for the
public service of the Commonwealth in the manner and subject to the charges provided by this
30 Constitution.
Mr. HOLDER.-With all due respect, I do not think that that clause applies.
Mr. REID.-Yes; it covers every appropriation issued from the Treasury.
Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.
Mr. REID.-You receive revenue, and you appropriate money for expenditure.
35 Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue Fund," used in
clause 81, shall include both revenue and loan money. We are surely going to keep these two separate.
Mr. REID.-There is no provision of that sort.

And
40 statistician and the financier more than to the mind of a humble layman, and I am sure that if there is one
member of this Convention competent to solve the problem of capitalizing a financial discrepancy it is Mr.
his amendment, and I feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
45 of things to which Mr. Henry's amendment is directed. But I go further than that, and I take up the view which
p 628 9-3-2009
p629
was dealt with by Mr. O'Connor on the broad ground-and that is the position to which I wish to direct the
Constitution. If this power is implied in the Constitution, then the amendment merely asserts and makes
5 hand, if it is not implied in the Constitution, it seems to me that it is a power that ought to be in the
protect that state from financial disaster or financial strait. I admit all the possibilities on the two
10 the part of the states, and also the other ground that it imposes an obligation on the Commonwealth,
the Constitution, to enable the Federal Parliament to give that assistance which might be absolutely
15 state in which such a condition of things has arisen. But again, I say, I do not believe that such a
should not the Federal Executive and the Federal Parliament, in the interests of the Commonwealth,
20 should exercise a power of that kind than that it should allow a blemish to be put on the honour and
obligations? I admit that there are disadvantages and inconveniences on the one side, but on the other there is
the great principle that it is the duty of the Commonwealth to maintain the existence, the integrity, and the
solvency of every state. And I do say that that is the function of the Commonwealth.
25 Mr. REID.-Then it had better be put in the Bill, and let the people know what they are doing. If they are
going to enter into a contract of that sort, the people had better know it.
Mr. BARTON.-If you put that in the Bill, the Bill will be put out.
Mr. SYMON.-My honorable friends take a strong view of the matter.
Mr. REID.-Do you really think that if a state gets into any temporary embarrassment it is not strong enough
30 itself to make financial arrangements to relieve itself from its own embarrassment? If there is a state in that
condition I say it is a sort of partner that I do not want to have.
Mr. SYMON.-There is only one answer to the question of the right honorable member, and that is, I do not
believe there is any state which has not the resources and which has not the disposition to meet its own
engagements but I decline to assent to the proposition that, by putting this into the Constitution, you are
35 declaring that there are such states as are likely to be placed in that position.
And
Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution. The Constitution
lays it down that the Commonwealth is to deal equally with all the states whether it is in the matter of
taxation, of bounties, or of trade, and we may as well strike out the provision that all taxation shall be
40 uniform throughout the Commonwealth if we are to contemplate that after the taxation has been raised the
proceeds may be handed over to any one colony. The thing will not bear a moment's investigation, and I hope
the honorable member will not press his propos al to a division. It is a pity that the amendment has been
brought forward. There is no possibility, nor does any one contemplate the possibility, of any of the states
being in a worse financial position than they are in at the present time. On the contrary, I believe that their
45 financial position, good as it is now, will be infinitely improved.
Again;
If that is necessary in the case of an invasion of a warlike nature, surely it is necessary
to include in the Constitution a clause of a similar nature to protect every state from
financial disaster.
50 .
What therefore must be very clear is that the financial aid to the States was seen as like the aid in
case of an attack upon a State. Protecting a State from financial disaster is obviously not
something like the commonwealth funding the repair of a municipal council town hall.
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p630
.
Mr. HOLDER (South Australia).-I expressed the opinion a few days since, in answer to an interjection,
that the insertion in the Constitution of any such provision as is now sought to be inserted would be attended
5 by the dangers that, in the first place, it might conduce to reckless financing by the states, and, in the
second place, would involve a very heavy obligation upon the federal authority. And, at the same time, I said
that I thought the assistance which under such conditions would be required by a state was assistance which in
the very nature of the Constitution would have to be rendered by the federal authority.
.
10 The whole reading of the Hansard records of the Constitution Convention Debates clearly points
out to assistance to a State that is in financial difficulties and not some financial assistance to
whatever organisation is within a State.
.
15 Mr. ISAACS.-Higher up in the clause you will see that it says that, whatever is taken over, the state is to
"indemnify the Commonwealth."
Mr. HOLDER.-If the words I have quoted have the meaning which Mr. Reid says they have, it disposes of
my first point. My next point is that in clause 52, it is provided that the Federal Parliament shall have the
power of "borrowing money on the public credit of the Commonwealth"; and there is no provision anywhere
20 that I know of in this Constitution to limit the expenditure of money so borrowed. There are limits to the
expenditure of revenue. It would be quite impossible during the five years to render special aid to, any state
under the clause we have agreed to to-day, because the revenue is appropriated. But the provision I have
quoted deals with borrowed money, and I know [start page 1114] of nothing in this Constitution which would
limit or control the expenditure of borrowed money except the Loan Act of the Federal Parliament which
25 authorizes the loan.
Mr. ISAACS.-You are referring to paragraph (4) of clause 52?
Mr. HOLDER.-Yes.
Mr. OCONNOR.-But that money could not be spent upon any object the Federal Parliament thought
fit.
30 Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point. I see that,
according to the provision I have quoted, there is power given to the Federal Parliament to borrow money on
the credit of the Commonwealth, and I say again that I do not know of any limitation of the expenditure of
that money except the limitation which would be specified in the Loan Act authorizing the borrowing of the
money. Of course, these words cover the raising of the money for the building of railways for instance, and in
35 such a case the limitation would be the terms of the Loan Act. But is there anything anywhere to prevent a
Loan Act being passed by the Federal Parliament authorizing the raising of a certain sum of money, the
proceeds of which loan might be divided according to the terms of the Act among the states according to their
needs, or upon some other principle?
Mr. GLYNN.-The first three lines of clause 52 affect that point.
40 Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government
Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-
The Parliament shall, subject to the provisions of this Constitution, have full power and authority to make
laws for the peace, order, and good government of the Commonwealth, with respect to all or any of the
45 matters following.
Well, that includes the borrowing of money.
Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow; the money is only
to be borrowed for the purposes of the Commonwealth.
p 630 9-3-2009
p631
Mr. REID.-Look at clause 81, where it is clearly set out that-
All revenues raised or received by the Executive Government of the Commonwealth, under the
authority of this Constitution, shall form one Consolidated Revenue Fund, to be appropriated for the
public service of the Commonwealth in the manner and subject to the charges provided by this
5 Constitution.
Mr. HOLDER.-With all due respect, I do not think that that clause applies.
Mr. REID.-Yes; it covers every appropriation issued from the Treasury.
Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.
Mr. REID.-You receive revenue, and you appropriate money for expenditure.
10 Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue Fund," used in
clause 81, shall include both revenue and loan money. We are surely going to keep these two separate.
Mr. REID.-There is no provision of that sort.
Mr. HOLDER.-Then I would suggest that words should be inserted in order to provide that loan money
and revenue shall be kept separate. I hope we shall have a Loan Account and a Consolidated Revenue
15 Account, and by no means mix up the two. I take it that clause 81 does not refer to any loan fund at all, but
simply to revenue. The term "Consolidated Revenue Fund" defines it clearly. Of course, I am not expressing a
legal opinion in a chamber of lawyers such as this is. I should be unwilling to do that. I simply rose with the
object of putting forward these points with a view of obtaining a statement of authoritative opinion in regard
to them. It appears to me that the clauses I have mentioned imply the possibility of some assistance being
20 rendered to a state in difficulties. It seems to me that, as no assistance could be rendered out of revenue,
some assistance might be rendered out of loans, or there might be a guarantee of a loan, [start page
1115] or some other way of rendering financial aid to a state that might be devised. But I hope Mr.
Henry will withdraw his motion, because to state the matter so broadly as that the Commonwealth
shall come to the aid of a state might, I am afraid, lead to very serious reckless financing on the part of
25 some states under some possible conditions.
Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) has put the matter with his usual
clearness, and has very convincingly shown that at any rate there is very considerable doubt as to the question
which has been exercising our minds, as to whether it would be an implied power in the Commonwealth to
come to the assistance of a state in financial straits. And, therefore, if the existence of the power is involved in
30 doubt, it would be exceedingly desirable that some provision-I do not say the provision moved by my
honorable friend, who is not wedded to the particular words of his amendment, or any other-should be
inserted, so as to make it clear that that power exists. Now, I was very glad to hear Mr. Isaacs express his
desire to eliminate from this discussion, although we may use the word "insolvency," all idea of its being
suggested that we contemplate the actual insolvency of any particular state. We cannot discuss a subject like
35 this without using the common words "bankruptcy" and "insolvency," and if we have to speak of state
bankruptcy, or state insolvency, we do not mean to impute that any state of the Commonwealth, under
any set of circumstances, is likely to repudiate its obligations.
Mr. ISAACS.-Such a thing is absolutely impossible.
Mr. SYMON.-Therefore, while we use the terms "bankruptcy" and "insolvency" as applying to a
40 possible state of things which we wish to avert, it is not to be imagined for a moment that we
contemplate that such a state of things is going to exist, but we mean that a state may be in such a
condition of strait, or the Treasurer of that state maybe in such a condition of administrative
embarrassment, that it may be necessary to have re-course to the Commonwealth for assistance in
some shape or other. Now, I also desire to say that I do not think it is necessary to determine, and it will
45 be impossible for this Convention to determine, whether or not this implied power exists in the
Constitution. There might be, and no doubt would be, a strong difference of opinion upon the subject,
and even if we, assembled here, were unanimous on the subject, that fact would not assist the final
determination of the question when the exigency arose. But I agree with Mr. O'Connor that
undoubtedly in the distribution of the surplus, and in dealing with the financial condition of the states,
50 the Commonwealth would be animated by a desire to see that the states were placed in a position to
meet all their engagements. The difficulty which Mr. Henry sees, and to which he directs his amendment, is
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p632
as to the condition of things during the five years' interval-during the bookkeeping period-when there is an
express appropriation of the surplus moneys. During that time Mr. Henry fears it is possible, without
mentioning any particular colony, that the Treasurer of one of the states might be unable to see his way to
meet his public engagements.
5 Mr. REID.-He could adopt Mr. Walker's proposal for capitalizing discrepancies.
statistician and the financier more than to the mind of a humble layman, and I am sure that if there is one
member of this Convention competent to solve the problem of capitalizing a financial discrepancy it is Mr.
10 his amendment, and I feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
of things to which Mr. Henry's amendment is directed. But I go further than that, and I take up the view which
was dealt with by Mr. O'Connor on the broad ground-and that is the position to which I wish to direct the
15 Constitution. If this power is implied in the Constitution, then the amendment merely asserts and makes
hand, if it is not implied in the Constitution, it seems to me that it is a power that ought to be in the
20 protect that state from financial disaster or financial strait. I admit all the possibilities on the two
the part of the states, and also the other ground that it imposes an obligation on the Commonwealth,
25 the Constitution, to enable the Federal Parliament to give that assistance which might be absolutely
state in which such a condition of things has arisen. But again, I say, I do not believe that such a
30 should not the Federal Executive and the Federal Parliament, in the interests of the Commonwealth,
should exercise a power of that kind than that it should allow a blemish to be put on the honour and
obligations? I admit that there are disadvantages and inconveniences on the one side, but on the other
35 there is the great principle that it is the duty of the Commonwealth to maintain the existence, the
integrity, and the solvency of every state. And I do say that that is the function of the Commonwealth.
Mr. REID.-Then it had better be put in the Bill, and let the people know what they are doing. If they
are going to enter into a contract of that sort, the people had better know it.
And
40 Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution. The Constitution
lays it down that the Commonwealth is to deal equally with all the states whether it is in the matter of
taxation, of bounties, or of trade, and we may as well strike out the provision that all taxation shall be
uniform throughout the Commonwealth if we are to contemplate that after the taxation has been raised the
proceeds may be handed over to any one colony. The thing will not bear a moment's investigation, and I hope
45 the honorable member will not press his proposal to a division. It is a pity that the amendment has been
brought forward. There is no possibility, nor does any one contemplate the possibility, of any of the states
being in a worse financial position than they are in at the present time. On the contrary, I believe that their
financial position, good as it is now, will be infinitely improved.
.
50 What should be clear from this is that any assistance rendered by the Commonwealth then the
States must indemnify or otherwise provides certain guarantees to the commonwealth.
It also should be kept in mind that while Section 96 is not covered under Section 51, as was made
clear
QUOTE
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p633
Mr. ISAACS.-The money must be expended with regard to "the peace, order, and good government
END QUOTE
As such any monies raised by taxes, etc, are within the terms of Section 51 and therefore unless
5 there is a specific loan under a loan act to aid a State from financial distress the monies otherwise
raised/collected by the Commonwealth only can be used for powers within Section 51 and 51 of
the Constitution, as the framers of the constitution indicated “to protect that state from
financial disaster or financial strait”. As such, I for one do not accept that the commonwealth
nilly willy can spend the monies raised as it desires and in fact by granting municipal councils
10 monies without any State involvement then somehow the States nevertheless can be robbed of
this monies to which they ordinary are entitled upon.
.
94 Distribution of surplus
15 After five years from the imposition of uniform duties of customs,
the Parliament may provide, on such basis as it deems fair, for the
monthly payment to the several States of all surplus revenue of the
Commonwealth.
.
20 It should be kept in mind that the more the Commonwealth taxes taxpayers the more the taxpayer
is burdened with overall taxation and duties to both the State and Commonwealth.
The more money the Commonwealth squanders monies the less money States receive and the
more the States themselves need to raise monies to make up for their financial planned
expenditure.
25 .
The question is if the High Court of Australia was right to argue that the Commonwealth through
Section 96 of the Constitution could make unconstitutional demands?
I reject such nonsense as it must be clear from the following also that to allow for this the entire
set up of principles and provisions embedded in the Constitution would be erodes as the
30 Commonwealth pleases. The danger is that if you then were to get another Hitler into power he
could use this Section 96 as to basically having taxed taxpayers out of existence then hold the
States over a barrel, so to say, by making unconstitutional demands as to force them to hand
over State powers without any referendum to approve of this. The Commonwealth could simply
wipe out the States altogether and then turn the Commonwealth of Australia into some
35 dictatorship.
The building blocks for this already have been put in place by the assistance of politicians of all
kinds of political parties and what I consider to be the treasonous conduct of the High Court of
Australia.
If we were to accept the argument of the High Court of Australia then nothing would stop the
40 Commonwealth to simply stop any surplus being given back to the States and make it mandatory
that the Commonwealth decides how any monies granted within Section 96 is being used, etc.
As such, while the Commonwealth has no constitutional powers to interfere with state
employment contracts the Commonwealth simply could then dictate to the State that any funding
monies provided is under the condition that the States hand over their industrial relations
45 legislative powers. From there on the Commonwealth could nibble away time and again the next
source of power and turn a federation into a confederation.
.
The aim to fund municipal councils obviously will be to divide and conquer as the more
participants, some about 565 of them rather then a mere 6 State Premiers the less likely will there
50 be any opposition to whatever the Commonwealth plans.
p 633 9-3-2009
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Once the Commonwealth has achieved total annihilation of the States by creating a
confederation it then can dismantle the so called Australian Council of Local Government.
Within what constitutional powers did the Commonwealth have the legislative powers to create
the Australian Council of Local Government?
5 .
Or is it that what constitutional limitations are embedded in the Constitution no longer are
relevant to whomever is elected?
.
10 Mr. BARTON.-This is merely a matter of benevolence to the other colonies.
Mr. DOUGLAS.-Of course, New South Wales has her land revenue; but her representatives need not boast.
Tasmania will be all right in the end. The honorable member (Mr. Holder) has made some excellent speeches
during the sittings of the Convention, but his last speech was the worst I ever heard. He said-"I do not know
what the opinion of the lawyers may be on this subject, but I cannot find any particular reason for this
15 provision. I think there are so many things which will lead to extravagance." How can the insertion of this
provision lead to extravagance? Will a state run into debt simply to be relieved of its indebtedness?
.
What must be clear is that the funding which Kevin Rudd PM allows for is not as to fund States
in dire straits of finances but rather his way of spending moneys ill begotten from taxpayers. It is
20 not spending monies for the whole of the Commonwealth but for repairing municipal council
buildings, etc, nothing to do with the Commonwealth.
In fact the monies can be used as municipal councils desire provided they are new projects, yet
must be allegedly be where the municipal council itself also pay a large part towards the project.
With Banyule City Council having had its June 2008 budget it means that the monies needed to
25 be allocated before end June 2009 and used before September 2009 cannot be wisely used as it
means that somehow Banyule City Council would be obligated to approve in its next budget
projects that also must be paid for before the end of September. This is a receipt for disaster as
even the long planned Greensborough project could not be managed to be planned appropriately,
such as even simple issues such as temporary car parking facilities.
30 .
Mr. CARRUTHERS:
Mr. Barton first of all recites Dicey to show what occurs under the unwritten Constitution of
England. But here we are framing a written Constitution. When once that Constitution is framed we
35 cannot get behind it.
Again;
QUOTE
When once that Constitution is framed we cannot get behind it.
END QUOTE
40
Therefore the Commonwealth can only finance matters within its constitutional powers and only
for so far it doesn’t offend any constitutional embedded principle.
In my view how the Commonwealth is spending taxpayers monies is an utter disgrace, not just
because of the 18 November 2008 $300 million to municipal councils in an unconstitutional
45 manner but also how it spend monies to build schools, police stations etc, not in the
Commonwealth of Australia but in foreign nations for which the framers of the constitution made
clear there is no legislative powers to do so. They are not “annual service” expenditure to
maintain Departments, yet the Commonwealth is funding this from monies otherwise allocated to
various Departments as now the Commonwealth budget such kind of expenditure as being for the
50 annual services of a Department even so it is not and cannot be because it is not a ordinary cost
to a Department.
p 634 9-3-2009
p635
.
.
Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our
own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above
Parliament, and Parliament will have to conform to it.
10 .
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on the Constitution
we will have to wipe it out."
And
15 Mr. BARTON.- The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to a power given.
.
Mr. REID.-I suppose that money could not be paid to any church under this Constitution?
20 Mr. BARTON.-No; you have only two powers of spending money, and a church could not receive the
funds of the Commonwealth under either of them.
.
Therefore, Section 96 cannot be used to fund religion in any manner, directly or indirectly and
the High Court of Australia has no constitutional powers to amend the Constitution to allow for
25 this by way of its judgments.
.
The following is part of a submission that eventually on 19 July 2006 was before the County
Court of Victoria and the Crown didn’t in any way whatsoever challenge this submission and the
Court unreservedly upheld my cases against the Crown!
30 .
QUOTE 061115 ADDRESS TO THE COURT
Only the people of Australia themselves can vote for some form of independence, and in the last Referendum
the option of a republic was soundly defeated. Hence, any attempt to by some back door manner achieve the
same must be rejected as a constitutional absurdity. The moment it is accepted that it was within the powers
35 of the State and the Commonwealth of Australia to provide for the Australia Act 1986 and to then accept as if
this is the new constitution, then by this one accepts that they can replace this purported Australia Act 1986
with any other purported Constitution of whatever terms they desire and also then again repeal the now
purported Australia Act 1986. The High Court of Australia is already on record that the Commonwealth of
Australia can make unconstitutional demands upon the States, where the Commonwealth if provided funding
40 within Section 96 of the Constitution, a matter that is ridiculous as the Framers of the Constitution made
clear this is not possible, then what would stop then the Commonwealth of Australia to use financial
blackmail to force the State to agree to whatever alternative version of Constitution it demands? This kind of
dictatorship should never be allowed and by some back door way created! The power and should always be
granted to the Commonwealth from the States not enforced the other way around.
45 Anyone who had studied the Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention ) would be well aware that Section 51, and so its subsections, never
intended and neither contemplated to allow some creation of an alternative Constitution, regardless if
identical in wording, but to alter the application of the Constitution. Indeed, where the Constitution itself
p 635 9-3-2009
p636
provides for “Until the Parliament otherwise provides” and this being only in limited area’s, then it must be
clear that without a Referendum the Commonwealth of Australia, regardless if the States agree with it, cannot
replace it and/or alter its application without Section 128 Referendum. As Barton made clear that regardless
if the States and the Commonwealth agreed it still would require to be approved by a Referendum! Therefore,
5 the purported Australia Act 1986 remains ULTRA VIRES as it was never approved by way of Section 128
Referendum! Neither is it within the powers of the High Court of Australia to declare this legislation INTRA
VIRES, as the High Court of Australia was created to interpret the intentions of the Framers of the
Constitution and not to somehow implement their own contemporary views as an alternative!
END QUOTE 061115 ADDRESS TO THE COURT
10 .
QUOTE 20-2-2007 correspondence to John Howard
Basically, if Queensland, NSW, Victoria and South Australia were to refer legislative powers to the
Commonwealth of Australia then the Commonwealth of Australia has to recoup the billions of dollars by
charging those four States a special levy. Now, I view that the electors of those States should be made aware
15 of this!
It is because of the reference of legislative powers that this come about, whereas if the States retain their
legislative powers and the Commonwealth of Australia, say, within Section 96 of the Constitution, then the
Commonwealth of Australia could set conditions, albeit they must not go beyond any other powers set out in
the Constitution (as the Framers of the Constitution made clear) and as such the Commonwealth of Australia
20 could insist, for example, that the 10 BILLION DOLLARS are provided progressively pending completion
of certain targets, such as exist in Victoria when one has to pay a builder only progressively as a house is
being build.
END QUOTE 20-2-2007 correspondence to John Howard
.
25 QUOTE 20-2-2007 correspondence to John Howard
What ought to be clear is that Section 96 grands can be facilitated only regarding issues where the States have
legislative powers. After all, if the Commonwealth of Australia has legislative powers it does not need to
make grands. And, if the Commonwealth of Australia were to obtain legislative powers it might well be that
the entire WATER issue could get worse, rather then better.
30 END QUOTE 20-2-2007 correspondence to John Howard
.
QUOTE 11-9-2005 correspondence Barnaby Joyce
Date: Sun, 11 Sep 2005 18:41:17 +1000
From: "G. H. SCHOREL-HLAVKA" <INSPECTOR-RIKATI@SCHOREL-HLAVKA.COM>
35 Subject: Telstra issue, etc
To: senator.joyce@aph.gov.au
Cc: inspector-rikati@schorel-hlavka.com
40 Barnaby,
In my past correspondence I indicated you would be deceived,

and it seems you were.
45 While John Howard seem to "personally" guarantee 2 billion,

then again, what if he is, so to say, run over by b a bus
tomorrow. Where are you then?
END QUOTE 11-9-2005 correspondence Barnaby Joyce

50 .
And (consider the word “attaché” should be read as “attached”);
QUOTE 11-9-2005 correspondence Barnaby Joyce
p 636 9-3-2009
p637
What we need is to get the Commonwealth of Australia getting

back on track to operate within constitutional limits.
Constitutionally, any surplus is to be returned to the

5 States, but what we see is that Section 96 is being abused to
use the surplus in other ways as to blackmail the states to
give in to the dictatorship of the Commonwealth of Australia.
That is precisely that needs to be stopped, so that States
get the surplus without strings attaché.
10 END QUOTE 11-9-2005 correspondence Barnaby Joyce
.
QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
WITHOUT PREJUDICE
Committee Secretary 13-2-2006
15 Senate Legal and Constitutional Committee
Department of the Senate, Parliament House
Canberra ACT 2600, Australia
Phone +61 2 6277 3560, Fax +61 2 6277 5794
Email legcon.sen@aph.gov.au
20 END QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
.
QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
After all, the High Court of Australia it self is on record (albeit it was a ill conceived judgment)
that the Commonwealth of Australia can make unconstitutional demands in regard of Section 96
25 fundings. While such a judgments is clear and utter stupidity and only underlines the
incompetent of the judges not to comprehend the intentions of the Framers of the Constitution,
the problem is that by being on the records, any religious group who were to come into power
could use this kind of a judgment then to benefits its religion and turn this nation into some
religious fanatic nation. It is for this that we must not allow current political leaders to continue
30 their destruction of constitutional provisions and limitations as we are setting up for others to do
the same. And then the consequences will be likely to the extreme.
The Framers of the Constitution crafted an art work with the Constitution that albeit may have
certain problems, such as Section 51xxvi) it is a remarkable declaration of rights.
While the Framers held that no Constitution was like that of the Constitution they were creating,
35 since then the Singaporean and Indonesian constitution in some respects have far better
provisions.
The Singaporean constitution includes;
QUOTE
Part VA;
40
"existing law" means any law having effect as part of the law of Singapore immediately
before the commencement of this Constitution;
END QUOTE
QUOTE
45
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or instrument whatsoever which is in operation in Singapore and the common law in so far
as it is in operation in Singapore and any custom or usage having the force of law in
Singapore;
5 END QUOTE
While the same is applicable to the Commonwealth of Australian Constitution Act 1900 (UK) it
is generally ignored or not realised.
10 QUOTE
Equality.
12. --(1) All persons are equal before the law and entitled to the equal protection of the law.
QUOTE
QUOTE
15 Liberty of the person.
9. --(1) No person shall be deprived of his life or personal liberty save in accordance with
law.
(2) Where a complaint is made to the High Court or any Judge thereof that a person is
being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied
20 that the detention is lawful, shall order him to be produced before the Court and release
him.
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his
arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released, he shall, without unreasonable delay, and
25 in any case within 48 hours (excluding the time of any necessary journey), be produced
before a magistrate and shall not be further detained in custody without the magistrate’s
authority.
16/84.
(5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for
30 contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.
[M5
28/86.
(6) Nothing in this Article shall invalidate any law —
(a) in force before 16th September 1963 which authorises the arrest and detention of any
35 person in the interests of public safety, peace and good order; or
(b) relating to the misuse of drugs or intoxicating substances which authorises the arrest
and detention of any person for the purpose of treatment and rehabilitation,
by reason of such law being inconsistent with clauses (3) and (4), and, in particular,
nothing in this Article shall affect the validity or operation of any such law before 10th
40 March 1978.
END QUOTE
In Australia this is also applicable (UNWRITTEN PART OF THE CONSTITUTION,

Constitution Convention Debates) but tell this to Vivian Solon the alleged Asian sex worker,
45 that her Australian nationality in the end had no meaning neither her ill health but only how she
was Asian looking to deny her any equality and rightful treatment ACCORDING TO LAW!
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QUOTE
Commonwealth citizenship.
139. --(1) In accordance with the position of Singapore within the Commonwealth, every
person who is a citizen of Singapore enjoys by virtue of that citizenship the status of a
5 Commonwealth citizen in common with the citizens of other Commonwealth countries.
(2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation
to a citizen of the Republic of Ireland who is not also a Commonwealth citizen as it applies
in relation to a Commonwealth citizen.
END QUOTE
10
It may be noticed that Commonwealth citizenship is not “Commonwealth nationality” but refers
to people who are a “citizen” of a Commonwealth country regardless of their nationality.
Unless the committee is open minded and accepting that the Australian Citizenship Act 1948
15 was based on LEGAL FICTIONS and wrongly titled and beyond constitutional powers
defining/declaring citizenship we will simply continue a lot of rot and by this invite others to use
whatever method they may contemplate to use to resolve the issued we ourselves stubbornly
refuse to rectify.
“AUSTRALIAN CITIZENSHIP” is not “nationality” but can only be obtained
20 AUTOMATICALLY by obtaining “STATE CITIZENSHIP” and citizens are entitled to be
protected against any Commonwealth of Australia interference, including of the Australian
Federal Police, while they are within State legal jurisdiction!
MAY JUSTICE ALWAYS PREVAIL®

25 END QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
.
There is no doubt that the Commonwealth could take over land taxes from the states and other
money raising avenues as to so to say bleed the States dry of any revenue and then force the
States to capitulate and hand over its various legislatives powers to the Commonwealth, as time
30 goes bye to finish of the States. But before those in who’s favour a confederation would be
clapping their hands on this prospect, the Commonwealth once having achieved this then could
nullify the Australian Council of Local Government upon the basis it has no constitutional
validity.
Now consider the unlimited powers of those then in the Federal Government.
35 .
While the climate and temperatures of area’s differ from State to State and for this different
building practices are required, the commonwealth under the principle to legislate for the “whole
of the Commonwealth” would issue its regulations and regardless how inappropriate it might be
to build a residence as such in a certain area, the right and interest of local communities will no
40 linger exist. Are we then having to start all over as occurred when NSW originally was before it
was divided in different colonies?
.
Commonwealth of Australia Constitution Act1900 (UK)
Chapter IV—Finance and Trade
45 96 Financial assistance to States
on such terms and conditions as the Parliament thinks fit.
50 .
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We also have;
83 Money to be appropriated by law

No money shall be drawn from the Treasury of the Commonwealth
5 except under appropriation made by law.
But until the expiration of one month after the first meeting of the
Parliament the Governor-General in Council may draw from the
Treasury and expend such moneys as may be necessary for the
maintenance of any department transferred to the Commonwealth
10 and for the holding of the first elections for the Parliament.
.
Therefore any monies to be granted by the Commonwealth must be subject to an Appropriation
Bill, including the claimed $300 million Kevin Rudd PM on 18 November 2008 claimed to give
the Municipal councils.
15 As I have already set out previously, Appropriation Bills and Taxation Bills must be dealt with
together prior to the commencement of the financial year.
As I understand it Hitler gained more and more power by fooling people that he was going to
help them, such as the gay people, but once he got the power he went against them.
The Commonwealth has clearly ulterior motives as to intervene with what is essential State
20 internal matters as to how municipal councils are funded and the manner in which they can do so.
.
.
Versus
25 .
STATE GOVERNMENT/LOCAL GOVERNMENT
.
Versus
.
30 MUNICIPAL COUNILS/LOCAL GOVERNMENT
.
35 GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
with a “STATE PARLIAMENT”.
40 .
of Government.
.
Governments.
p 640 9-3-2009
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Government.
5
is and remains to be a constitutional power reserved for the State Parliaments. See also Hansard
2-3-1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so
10 far it purports to define/declare “CITIZENSHIP” is ULTRA VIRES.
government would not be able to deal with this appropriately. Why you may ask? Because
15 “CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
interested can always read my various books published in the INSPECTOR-RIKATI® series.
20 The usage of the term “local government” during the Constitution Convention Debates were
25 The Federal Government cannot have it both ways, argue it has constitutional rights to
doesn’t suit it.
What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
30 constitutional council, that advises the Government, the People, the Parliament and the Courts as
(judgments) while those politicians in the Parliament know next to nothing as to what is
35 constitutionally permissible or not.
do not comprehend how matters are constitutionally then what are they talking about?
40
Please note the comments below.
Mr. DEAKIN.-
45 I believe, by the Bill which will shortly grant Western Australia the local government which all Australasia
has long wished her, to confine the new colony to the territory south of the 26th parallel, while the territory
north of that is to be governed by Western Australia under the control of Ministers in England.
And
Mr. DEAKIN.-
50 With regard to work which might be better done by a Federal Government than by the separate Governments
of the colonies, it is questioned whether, when the Convention comes to consider all the issues raised (which I
do not enter into), it will not be decided that the larger part of the work should be left to the local
p 641 9-3-2009
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Governments. It is argued that public works, for instance, would be more satisfactorily carried out by the
local Governments than by a Government more removed.
And
Mr. DEAKIN.-
5 But what is clearer is, that the great cable and mail lines between this continent and the old world would
inevitably pass under the control of the Federal Government. There is one land line already across the
continent of Australia, which it might be necessary to hand over to the Central Government, And there is a
cable projected towards North America, which will greatly affect the interests of the inhabitants of Australasia
and the Pacific islands and our countrymen across the sea.
10 And
Mr. DEAKIN
Leaving these details, which I have only ventured to touch upon in a fragmentary way, and sympathizing with
the strong stand made by Mr. Playford on the supposition that the powers and privileges of the different local
Governments were to be assailed, and being as prepared as he is to do my utmost in their defence, I believe
15 that we would act idly unless we admitted from the first that in the creation of a Federal Legislature and a
Federal Executive we meant them to be the organs of a Sovereign state-a state which would not be a figment
or shadow, nor exist only on the sufferance of the local Parliaments, but which would draw its authority
straight from the people of the different colonies, obtaining from them the plenary powers to be exercised by
it within certain limits. The great lesson taught by Mr. Bryce in his magnificent work is that the strength of
20 the United States Government lies in this, that although it is a Federal Government, under which each State of
the Union is theoretically and actually independent in respect to all concerns of local life and legislation, it
has nevertheless sovereign authority in that it is gifted with powers which act directly and immediately on
every citizen of the entire country. It is not dependent on any state for one cent of its revenue, nor upon state
officers for any act of administration , nor upon State Courts for any decision in its favour. Except that the
25 state legislators elect the members of the Senate there is no connexion between the states and their
Central Government. The Union is not concerned to have their support, nor does it seek their aid for the
forces it maintains. It is a Sovereign state acting directly, without any intermediary, upon the citizens
from which it springs. (Hear, hear.) I am glad that view is concurred with. I am glad to think that we shall
see a Sovereign state in Australasia which will be able to act directly through its judiciary, and in other ways,
30 on every citizen within its borders, and be in every respect and in all its powers the equal of any state in the
world. Were we to aim at crippling, maiming, or enfeebling the local Legislatures, we would aim at doing
something not only wholly unnecessary for our purpose, but something which would actually injure the
Federal Government we are seeking to establish. There should be and must be nothing antagonistic between a
Federal Government supreme in its sphere and local Governments supreme in their spheres. It is perfectly
35 true that there must be a division of authority, that some of the powers of the local Governments will have to
be transferred to the Federal Government, but the judges of the powers to be given to either body must not be
either the local Governments with their jealousies, or the Central Government with its ambitions. The
judgment must come from those whom both exist only to serve-from the people themselves. So far both the
local and central authorities must be regarded as on the same platform, because as it is in the national
40 interest that there should be a differentiation of the powers of Government into central and local
Governments so in settling that division only national interests ought to be considered. What we have to
study is how to give the central authority all the powers which can be best exercised by such a body to the
distinct advantage of the whole of the people. Those powers it ought to have; but it is not to be [start page 27]
entitled to acquire them in such a way as would enfeeble the different local Governments, on whose healthy
45 life its successful existence must largely depend. As well might it be attempted to enfeeble municipal
institutions in order to aggrandize Parliament, the fact being that parliamentary Government depends very
much for its smooth and easy working upon the smooth and easy working of the minor local bodies. There
are an infinite number of issues which no central Parliament could deal with, but which necessarily
belong to the local Legislatures, and which they should be able to deal with in the present manner. For my
50 part, I think we should seek to strengthen the local Legislatures by every possible means. We should, as Mr.
Playford says, leave them every power it is possible for them to exercise in the interests of the whole
community. If more power can be given them for that purpose than is conceded elsewhere, let it be granted,
but let us give the Central Government just as emphatically a full and unfettered power so far as the
interests of the whole people demand it.
55 .
Mr. PLAYFORD: And that it would be given back to the various local governments in proportion to the
population of their respective colonies. If we consider for a moment that the federal government must have
an executive, and will have to provide the necessary payment for the federal forces, for the federal executive,
60 and for various other matters, we must see that they will have to derive a revenue in some way or other; and
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the most difficult question, I think, which the members of the Convention will find, when they come to deal
with it, will be the adjustment of that financial part of, if I may so call it, the trouble between the federal
government on the one hand, and the local governments on the other. It may be necessary that, in certain
instances, we should be paid back by the federal government a proportion of the money that we, as local
5 governments, derive from customs.
.
It must be very clear that therefore “Local Government” is constitutionally State Government
and the Commonwealth has no powers to interfere with its internal affairs.
.
Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
.
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
we are not going to make the Commonwealth a kind of social and religious power
over us.
20 .
And
Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
25 necessary or incidental to a power given.
.
Hansard Constitution Convention Debates
start page 1020] I think that we ought to be satisfied on these points, and satisfied that if we leave the
clause as it now stands there will, at any rate, be some proviso inserted which will safeguard the states
30 in the carrying out of any of their state laws over which the states are to be supreme even under
federation.
.
Mr. SYMON.-
35 The relations between the parties are determined by the contract in the place where it occurs.
And
Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal authority. That
would be an absolute impossibility in the different states.
40 And
Mr. BARTON: If they arise in a particular State they must be determined by the laws of the place
where the contract was made.
And
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they
45 are intimately allied to this question.
And
Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, an d if in course of their
contractual relations disagreements arise, and the state chooses to legislate in respect of the subject-
50 matter of them, it can do so.
.
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection of our interests,
but also for the just interpretation of the Constitution:
55 .
In my view, I have to conclude that the Commonwealth has no constitutional powers to create
some kind of Australian Council of Local Government and neither to fund its meeting at
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Canberra or to give it any funding such as the $300 million as clearly the state had no input in
this and as such it cannot be deemed to fall within Section 96 as this only relates to State who are
in financial difficulties and seek financial assistance.
Regardless what the High Court of Australia otherwise may try to make out of Section 96 and its
5 application, I view it is not for the judges to circumvent the rights of the public by using some
backdoor manner to amend the Constitution or alter its application in any way. It can only
interpret the Constitution as was intended by the Framers of the Constitution and the funding of
anything without a specific request of the States in regard of its own financial problems, if there
are/were any cannot be condoned. The Constitution must never be allowed to be corrupted in
10 such manner as soon or later such kind of conduct may play in the hands of another would be
dictator being called Hitler or otherwise.
.
1. Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd ("Flour Tax case")
[1939] HCA 27; (1939) 61 CLR 735 (25 July 1939) (From High Court of Australia; 25 July
15 1939; 168 KB)
QUOTE Latham C.J
The defendant further objects that the provisions for grants to States are invalid because the Minister, and not
the Commonwealth Parliament, determines the amount and the conditions of the grants. Thus, under sec. 7 of
the Wheat Industry Assistance Act, the Minister, after the first year, determines the amount to be received by
20 the States, and the Minister must approve the method of distribution of moneys for transferring distressed
wheat farmers from unsuitable land (sec. 7 (5)). Further, under sec. 10, the Governor-General may suspend
payment altogether in certain events, and under sec. 14 the Minister, subject to a maximum limit, determines
the amount to be paid to Tasmania.
In my opinion, none of these objections, even if well founded as objections to the validity of these sections,
25 could affect the validity of the taxation Acts. Even if the provisions as to the distribution of the funds
established under the Wheat Industry Assistance Act were invalid, that invalidity would affect only the
expenditure of moneys under that Act, and not the collection of moneys under the various flour taxation Acts.
Although the Acts are all directed towards the assistance of wheat farmers, and in a readily intelligible sense
form part of one scheme, there is nothing to show that Parliament intended that the tax should not be collected
30 if any of the provisions for expenditure of money out of the consolidated revenue fund, augmented by the
proceeds of the tax, should prove to be invalid. An analogous case may be suggested. Parliament might
provide by an appropriation Act for the expenditure of, let it be supposed, a certain proportion of the moneys
collected by way of income tax. If those provisions for appropriation were invalid, I do not think that it could
be contended that therefore the whole or any part of the income taxation legislation of the Commonwealth
35 was invalid.
But, in the second place, the objections are, in my opinion, not well founded. The grants made by the Wheat
Industry Assistance Act are made by virtue of the power conferred on the Commonwealth Parliament by sec.
96 of the Constitution, which is as follows: "During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial
40 assistance to any State on such terms and conditions as the Parliament thinks fit." The words of this section
show that Parliament may grant financial assistance to a single State under this power and may therefore
discriminate between States in making grants. They also show that the Parliament has the fullest power of
fixing the terms and conditions of any grant made under the section. Parliament does fix the terms and
conditions of the grant if, by legislation, it authorizes a Minister to determine such terms and conditions. It is
45 too late now to argue that terms and conditions determined by a Minister under such legislation are not
determined by the Parliament (Powell v. Apollo Candle Co.[12]; Baxter v. Ah Way[13]; Roche v.
Kronheimer[14]; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[15];
Radio Corporation Pty. Ltd. v. The Commonwealth[16]). Further, the case of Victoria v. The
Commonwealth[17] (the Roads Case) is conclusive against the defendant upon this point. It was there held, by
50 a court of seven justices, that the Federal Aid Roads Act 1926 was a valid enactment, "being plainly
warranted by the provisions of sec. 96 of the Constitution, and not affected by those of sec. 99 or any other
provisions of the Constitution"[18]. The Federal Aid Roads Act approved agreements between the
Commonwealth and the States for making roads under which payments were made to the States "in such
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amounts at such times and subject to such conditions as the Minister may from time to time determine." Other
provisions of the agreements required the Minister to be satisfied as to various matters before he was bound to
make payments. It was argued that "the terms and conditions referred to in sec. 96 must be terms and
conditions imposed by the Parliament itself and not terms and conditions fixed by executive authority"[19].
5 This argument was rejected, and it must again be rejected in the present case.
Sec. 96 is a means provided by the Constitution which enables the Commonwealth Parliament, when it thinks
proper , to adjust inequalities between States which may arise from the application of uniform non-
discriminating Federal laws to States which vary in development and wealth. Discrimination is prohibited in
laws with respect to taxation (sec. 51 (ii.). Bounties must be uniform (sec. 51 (iii.)). Laws or regulations of
10 trade, commerce or revenue must not give preference to one State or part thereof over another State or part
thereof (sec. 99). But these "equal" laws may produce very unequal results in different parts of Australia. A
uniform law may confer benefits upon some States, but it may so operate as to amount to what is called "a
Federal disability" in other States. Sec. 96 provides means for adjusting such inequalities in accordance with
the judgment of Parliament. That section is not limited by any prohibition of discrimination. There is no
15 general prohibition in the Constitution of some vague thing called "discrimination." There are the specific
prohibitions or restrictions to which I have referred. The word "discrimination" is sometimes so used as to
imply an element of injustice. But discrimination may be just or unjust. A wise differentiation based upon
relevant circumstances is a necessary element in national policy. The remedy for any abuse of the power
conferred by sec. 96 is political and not legal in character.
20 It was also objected that as the object of the provision in sec. 14 of the Wheat Industry Assistance Act
enabling the minister to grant special financial assistance to Tasmania was to make it possible for Tasmania to
refund the tax to Tasmanian taxpayers, the "real purpose" of that Act was to make possible a discrimination
between the States in breach of sec. 51 (ii.) of the Constitution.
This objection is, in my opinion, met by what I have already said, namely, that the taxation legislation of the
25 Commonwealth does not discriminate between States, that appropriation Acts of the Commonwealth are not
subject to sec. 51 (ii.) of the Constitution, and that legislation by the State of Tasmania is not subject to any
limitation arising from that section.
END QUOTE
And
30 QUOTE Starke J.
This form of imposing taxation was bad, so it was contended, because the Parliament could not confer upon
or delegate to any executive authority the function of determining the rate of tax. But this contention has
many times been considered in this court and always rejected for reasons that are stated in the cases of
Victorian Stevedoring and General Contracting Co. Ltd. and Meakes v. Dignan[31]: See also Roche v.
35 Kronheimer[32] and Crowe v. The Commonwealth[33].
The preamble, already mentioned, was referred to in support of an argument to the effect that the flour taxes
were imposed to provide financial assistance to the States and to ensure wheat growers a payable price for
wheat, but that the Parliament had not granted such financial assistance. The argument was based upon the
Constitution, sec. 96, which enacts that Parliament may grant financial assistance to any State on such
40 terms and conditions as the Parliament thinks fit. The Wheat Industry Assistance Act 1938, No. 53, sec. 7 (2),
provides for payments to each State by way of financial assistance out of a fund into which had been paid
from consolidated revenue the amounts collected by way of flour taxes of such amount, if any, as the Minister
administering the Act (Acts Interpretation Act 1901-1937, sec. 17) after advice from the State Minister
determined. Substantially this contention again asserts the proposition that Parliament cannot delegate its
45 authority or confer upon an executive authority the function of determining the amount of assistance that a
State requires. It is contrary to the decisions already mentioned, and also to the actual decision, Victoria v.
The Commonwealth[34]: See clause 2 (3) of the agreement scheduled to the Federal Aid Roads Act 1926, No.
46. I would add that I am far from convinced that the validity of the taxing Acts depends, in any way, upon
the validity or effectiveness of the grant of financial assistance to the States.
50 Much broader ground, however, was relied upon in support of the defence. It is said that the scheme of the
Acts already mentioned involves taxation which discriminates between the States (Constitution, sec. 51 (ii.)),
bounties on the production or export of goods which are not uniform throughout the Commonwealth
p 645 9-3-2009
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(Constitution, sec. 51 (iii.)) and preference to the State of Tasmania over the other States contrary to sec. 99
of the Constitution: "The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue,
give preference to one State or any part thereof over another State or any part thereof."
The provisions of the various Acts may be summarized. The tax Acts impose the taxation and the assessment
5 Act provides for its assessment, collection and recovery. The Wheat Industry Assistance Act 1938, No. 53,
provides for the grant of financial assistance to the States. A wheat industry stabilization fund is created into
which is paid, out of the consolidated revenue fund, all moneys collected under the assessment Act, sec. 5.
Moneys to the credit of the fund are applied in making grants of financial assistance to the States (sec. 6). The
whole amount paid into the fund, subject to the deduction of certain payments, expenses and credits, is
10 applied in making payments to the States of such amounts respectively that there shall be paid to each State in
respect of that year the amount which bears to that total amount after the deduction has been made, the same
proportion as the quantity of wheat produced in that State during the year bears to the total quantity of wheat
produced in Australia during that year. Any amount so granted and paid to a State shall be paid to the State
upon condition that it is distributed to the wheat growers in that State in proportion to the quantity of wheat
15 sold or delivered for sale by each wheat grower during the year in respect of which payment is made (sec. 6).
Special accounts are kept in the fund, called "Wheat Industry Special Account" and "Wheat Tax Account,"
and the amounts at credit of those special accounts applied for purposes mentioned in accordance with the
determination of the Minister administering the Act: See secs. 6 (3), (4), (5), (7) and (8); Acts Interpretation
Act 1901-1937, sec. 17—the Minister.
20 This court has decided that grants of financial assistance to the States may be made on such terms and
conditions as the Parliament thinks fit and are therefore unaffected by sec. 99 or any other provision of the
Constitution (Victoria v. The Commonwealth[35]).
END QUOTE
.
25 2. South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65
CLR 373 (23 July 1942) (From High Court of Australia; 23 July 1942; 242 KB)
QUOTE Latham C.J.
The Grants Act.—It is now necessary to deal with the far-reaching and fundamental general objection which
is made to the Tax Act considered in association with the other Acts, but which is particularly directed against
30 the Grants Act.
This objection is based upon the following principle which, it is argued, applies to all Commonwealth
legislative powers, namely—the Commonwealth cannot direct its legislative powers towards destroying or
weakening the constitutional functions or capacities of a State. (A corresponding rule should, it is said, be
applied in favour of the Commonwealth as against the States.) In another form the principle is said to be that
35 the Commonwealth cannot use its legislative powers to destroy either "the essential governmental functions"
or "the normal activities" of a State.
Before considering sec. 4, which is the main provision of the Grants Act, reference may be made to an
objection to the validity of sec. 6. This section enables the Treasurer of the Commonwealth, subject to a
maximum limit to be stated in a recommendation of the Commonwealth Grants Commission, to increase the
40 grants to the States. It is objected by the plaintiffs that this provision is not a valid exercise of the power given
to the Commonwealth Parliament to grant financial assistance to States under sec. 96 of the Constitution,
because it involves an unconstitutional delegation to the Treasurer of legislative power. This objection,
however, is answered by Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[25].
The principal provision of the Grants Act is sec. 4, which is in the following terms: "In every financial year
45 during which this Act is in operation in respect of which the Treasurer is satisfied that a State has not imposed
a tax upon incomes, there shall be payable by way of financial assistance to that State the amount set forth in
the Schedule to this Act against the name of that State, less an amount equal to any arrears of tax collected by
or on behalf of that State during that financial year."
Upon this provision the following preliminary comments may be made:—

50 (a)
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The Act does not purport to repeal State income-tax legislation. The Commonwealth Parliament cannot do
this. It cannot repeal an Act which it has no power to enact: See Attorney-General for Ontario v. Attorney-
General for the Dominion[26]; Great West Saddlery Co. v. The King[27]. Plainly the Commonwealth
Parliament could not enact separate income-tax Acts for separate States. Nor can it repeal such Acts enacted
5 by the States.
(b)
The Grants Act does not require, in order that a State should qualify for a grant, that the State—or rather the
State Parliament—should abdicate, or purport to abdicate, its power to impose taxes upon incomes. A State
Parliament could not bind itself or its successors not to legislate upon a particular subject matter, not even, I
10 should think, by referring a matter to the Commonwealth Parliament under sec. 51 (xxxvii.) of the
Constitution—but no decision upon that provision is called for in the present case. The grant becomes payable
if the Treasurer is satisfied that a State has not in fact imposed a tax upon incomes in any particular year
during the operation of the Acts.
(c)
15 The Act does not purport to deprive the State Parliament of the power to impose an income tax. The
Commonwealth Parliament cannot deprive any State of that power: see Constitution, secs. 106, 107.
Notwithstanding the Grants Act a State Parliament could at any time impose an income tax. The State would
then not benefit by a grant under the Act, but there is nothing in the Grants Act which could make the State
income-tax legislation invalid.
20 (d)
The Grants Act offers an inducement to the State Parliaments not to exercise a power the continued existence
of which is recognized—the power to impose income tax. The States may or may not yield to this
inducement, but there is no legal compulsion to yield.
The Commonwealth may properly induce a State to exercise its powers (e.g. the power to make roads: See
25 Victoria v. The Commonwealth[28]) by offering a money grant. So also the Commonwealth may properly
induce a State by the same means to abstain from exercising its powers. For example, the Commonwealth
might wish to exercise the powers given by the Constitution, sec. 51 (xiii.) and (xiv.) to legislate with respect
to banking, other than State banking, and insurance, other than State insurance. The Commonwealth might
wish to set up some Federal system of banking or insurance without any State competition. If the States were
30 deriving revenue from State banking or State insurance, they might be prepared to retire from such activities
upon receiving what they regarded as adequate compensation. The Commonwealth could properly, under
Commonwealth legislation, make grants to the States upon condition of them so retiring. The States could not
abdicate their powers by binding themselves not to re-enter the vacated field, but if the Commonwealth,
aware of this possibility, was prepared to pay money to a State which in fact gave up its system of State
35 banking or insurance, there could be no objection on this ground to the validity of the Commonwealth law
which authorized the payment.
But the position is radically different, it is urged, if the so-called inducement practically amounts to coercion.
Admittedly the Commonwealth Parliament could not pass a law compelling a State to surrender the power to
tax incomes or prohibiting the exercise of that power by a State. Equally, it is said, the Com monwealth cannot
40 lawfully make an offer of money to a State which, under the conditions which actually exist, the State cannot,
on political or economic grounds, really refuse.
END QUOTE
And
QUOTE Latham CJ
45 When a power is defined by reference to purpose, other considerations arise (Deputy Federal Commissioner
of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[80]). So also if there were a prohibition against attaining a
result by any method whatever. If, for example, the Commonwealth Constitution contained a provision that
no Commonwealth law should by any means bring about the result of a discrimination between States, the
indirect consequential effects of the law would have to be examined. But the Constitution contains no such
50 provision. For example, taxation laws may not discriminate between States (sec. 51 (ii.)); laws of trade,
commerce or revenue may not give preference to a State (sec. 99). These provisions affect only laws of the
stated character. Thus there may be discrimination between States and preferences to States under sec. 96—
grants to States—because that section is not subject to any limitation with respect to discrimination (Deputy
Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[81]).
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Thus, although the Commonwealth Parliament cannot validly pass laws limiting the functions of State
Parliaments—and vice versa—the Tax Act and the Grants Act are not invalid on that ground. They do not
give any command or impose any prohibition with respect to the exercise of any State power, legislative or
other. The Tax Act simply imposes Commonwealth taxation, and is authorized by sec. 51 (ii.) of the
5 Constitution. The Grants Act authorizes payments to States which choose to abstain from imposing income
tax, and is valid by reason of sec. 96 of the Constitution, unless it is bad as involving some prohibited
discrimination or preference. It is now necessary to deal specifically with that objection.
Discrimination.—Sec. 96 provides that: "During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial
10 assistance to any State on such terms and conditions as the Parliament thinks fit." Plainly under this
provision financial assistance could be given to a single State only. Thus variation in amounts given to
different States is permissible. The section contains no express or implied prohibition against any kind of
discrimination: See references to Moran's Case[82]. Thus it is no objection to the Grants Act that States
which abandon income tax are given a grant while those who retain income tax get nothing.
15 So also the indirect effect of varying grants upon the fortunes of taxpayers of different States is an irrelevant
circumstance. The Tax Act itself is a general Act, applying to all persons in all States without discrimination.
The States, not the taxpayers, receive varying amounts under the Grants Act. As taxpayers in some States will
this year pay more in Commonwealth income tax than they did last year in both Commonwealth and State
income tax, and taxpayers in other States will pay less than last year, it is said that the Tax Act, read with the
20 Grants Act, discriminates between States. But a comparison of this year with last year or any past year is not
to the point. If the Commonwealth had not enacted the challenged Acts, no-one can say what the
Commonwealth or State rates of tax would have been this year. The question whether these facts unlawfully
discriminate between States cannot be answered by any consideration of the actual position of taxpayers
under past legislation (which was alterable by one Commonwealth and six State Parliaments severally) or by
25 a speculation as to the taxation which would probably have been imposed by Commonwealth and States if the
Acts in question had not been passed. Further, as already pointed out, the proceeds of the Tax Act simply go
into general consolidated revenue, together with the receipts from other taxes and other moneys, such as the
revenue derived from the post office. Then a portion of this general fund is applied, to the extent of
£33,489,000, in making grants to States, if the States are willing to accept them. There is no reduction of
30 Commonwealth income tax to taxpayers in particular States.
It is true that in Moran v. Deputy Commissioner of Taxation[83] the Privy Council pronounced a warning that
possibly (no decision was given on the question) a grant under sec. 96 might be used for the purpose of
effecting discrimination in regard to taxation—"under the guise or pretence of assisting a State with money."
It may be that, with a very misguided Parliament, such a case is perhaps conceivable. If the proceeds of a tax
35 could be earmarked and if such proceeds were then distributed in whole or in part among the States upon a
discriminatory basis the case apparently contemplated by the Privy Council would arise. Reference has
however already been made to the difficulties which, under the Commonwealth Constitution, stand in the way
of earmarking Commonwealth revenue in any respect. In the Hoosac Mills Case[84] the Supreme Court of
the United States considered such a case as that suggested. The Agricultural Adjustment Act was there held
40 invalid because the proceeds of a tax were identified with a purpose to which the Act was applied, that
purpose being held to be an unlawful purpose. It was held to be unlawful because it involved an invasion by
the Federal Government of the reserved powers of the States[85]. This decision depended upon the doctrine
of immunity of State instrumentalities which, in Australia, was rejected in the Engineers' Case[86]—See the
discussion of this case in The Supreme Court and the National Will by Dean Alfange, pp. 180 et seq. If the
45 proceeds of a Commonwealth tax were as such devoted to some unlawful purpose, the case contemplated by
the Privy Council might arise and it would be similar to the Hoosac Mills Case[87]. But it will not be easy to
find a case where it can properly be held that an appropriation Act making grants to States is invalid because
it involves an infringement of the provision that Acts with respect to taxation shall not discriminate between
States or parts of States.
50 END QUOTE
And
QUOTE Starke J.
Next it was contended that the following provision of the Assessment Act is invalid:—"For the better securing
to the Commonwealth of the revenue required for the efficient prosecution of the present war—(a) a taxpayer
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shall not pay any tax imposed by or under any State Act on the income of any year of income in respect of
which tax is imposed by or under any Act with which this Act is incorporated until he has paid that last-
mentioned tax or has received from the Commissioner a certificate notifying him that the tax is no longer
payable" (Act No. 22 of 1942, sec. 31). It was said that the Commonwealth had no power to give itself
5 priority in payment of its income taxes over the taxes of the States. But that contention, despite some dicta to
the contrary, is precluded by the decision of this Court in The Commonwealth v. Queensland[130], and by the
decision of the Judicial Committee in In re Silver Brothers Ltd.[131]. The taxing power gives the
Commonwealth authority to make its taxation effective and to secure to it the full benefit thereof. In my
opinion, there is no distinction in principle between the Commonwealth giving itself priority in the
10 administration of assets in bankruptcy and in giving itself priority in payment of the personal obligations
imposed by an income tax. The dicta above referred to may be found in Federal Commissioner of Taxation v.
Official Liquidator of E. O. Farley Ltd.[132] and West v. Commissioner of Taxation (N.S.W.)[133], but the
contrary view appears to have been expressed by the same justice in Federal Commissioner of Taxation v.
Farley[134 ], and note Graves v. New York[135].
15 It was also contended that sec. 31 prohibits taxpayers from paying to the States any taxation whatever. If that
were the proper construction of sec. 31 the Commonwealth would, I think, transcend its authority, but I
cannot so construe the section. The tax imposed is for a financial year, that is, for the twelve months
beginning on 1st July, but it is in every year assessed upon the year of income preceding the year of tax: See
Tax Act, No. 23 of 1942, sec. 7; Assessment Act 1936-1942, secs. 17 and 6; Acts Interpretation Act 1901-
20 1937 , sec. 22. But there is nothing in sec. 31 which prohibits or precludes a taxpayer from paying State taxes
so soon as his liability for Commonwealth income tax in any financial year has been discharged. The section
prescribes priority of payment, and it operates to that extent and no further, both in law and in fact.
2.
The States Grants (Income Tax Reimbursement) Act 1942 (No. 20 of 1942).—By sec. 96 of the Constitution
25 the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament
thinks fit. This section does not prohibit discrimination or preference (Victoria v. The Commonwealth[136];
Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[137]).
The States Grants Act in sec. 4 provides: "In every financial year during which this Act is in operation in
respect of which the Treasurer is satisfied that a State has not imposed a tax upon incomes, there shall be
30 payable by way of financial assistance to that State the amount set forth in the Schedule." And there are other
provisions for further assistance which may be found in the Act, but which it is unnecessary to detail. This
device could be made effective, as well in time of war as in time of peace, to control State legislation, and the
administration of State laws, and ultimately to control and supervise all State functions. The danger to the
States is obvious enough, but this Court has nothing to do with political policies or remedies; its sole function
35 is to determine whether the States Grants Act, in its present form, is warranted by the Constitution.
The government of Australia is a dual system based upon a separation of organs and of powers. The
maintenance of the States and their powers is as much the object of the Constitution as the maintenance of the
Commonwealth and its powers. Therefore it is beyond the power of either to abolish or destroy the other. The
limited grant of powers to the Commonwealth cannot be exercised for ends inconsistent with the
40 separate existence and self-government of the States, nor for ends inconsistent with its limited grants
(R. v. Barger[138]; In re Insurance Act of Canada[139]; Attorney-General for Alberta v. Attorney-General
for Canada[140]).
The States Grants Act, it is said, leaves the States perfectly free to exercise their constitutional powers, though
the exercise by the Commonwealth of its powers of taxation may render the exercise by the States of their
45 powers difficult or impracticable from an economic standpoint, which it is the object of the States Grants Act
to relieve: Cf. Massachusetts v. Mellon[141]; Steward Machine Co. v. Davis[142].
It cannot be doubted that the Commonwealth cannot expressly prohibit the States from exercising their
powers of taxation, and that those powers cannot, subject to the provisions of the Constitution, sec. 51
(xxxviii.), be appropriated by the Commonwealth nor abdicated by the States. The question in this case
50 comes back to this: What is the object and operation of the States Grants Act? It purports in sec. 4 to grant
financial assistance to the States, but is it linked up with an object that is beyond the powers of the
Commonwealth, namely, to control the exercise by the States of their powers to impose taxes upon income?
The title of the Act itself is States Grants (Income Tax Reimbursement) Act. The amounts of the grants set
forth in the schedule to the Act are, it is admitted in the pleadings, substantially the average of the amounts
55 raised by each State by means of income tax in the financial years of each respective State ended 30th June
1940 and 30th June 1941. Further, the tax imposed under the Federal Act on the lower grades of income is
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moderate as compared with the tax imposed upon higher grades of income. Consequently it was open for the
States to exploit this field of taxation, but if they do so the Grants Act deprives them of the financial
assistance thereby provided.
5 linked up in it an object and an end that is inconsistent with the limited grant of power given by sec. 96
respect of incomes and compensating the States for the resulting loss in income tax. The argument that
10 States' position that the condition of the Act relates to a matter in respect of which the Commonwealth has no
any power conferred upon the Commonwealth, the grant of assistance to the States is withdrawn unless
they comply with its terms. The real object of the condition is that already stated, and it is in my
judgment neither contemplated by nor sanctioned by the Constitution, and in particular by sec. 96
15 thereof. As I have said, all State legislation and functions might ultimately be so controlled and
supervised. The possibility of the abuse of a power is not, however, an argument against the existence of
a power. But if the extent of the power claimed by the Commonwealth leads to "results which it is
impossible to believe ... the statute contemplated ... there is ... good reason for believing that the
construction which leads to such results cannot be the true construction of the statute" (The Queen v.
20 Clarence[143]). A legitimate use of the powers contained in sec. 96 may be found in the Road Grants Case
(Victoria v. The Commonwealth[144]), where the Commonwealth and the State of Victoria entered into an
agreement, the object of which was to aid the State in the construction and reconstruction of certain roads.
Incidentally the making of roads would be an aid to trade and commerce, and possibly also to defence: See
Federal Aid Roads Act 1926 (No. 46 of 1926). No doubt means can be found to give the States financial
25 assistance without crippling them in the exercise of their powers of self-government if the Commonwealth
taxation creates economic difficulties for them. But I cannot agree that the provisions of sec. 96 enable the
Commonwealth to condition that assistance upon the States abdicating their powers of taxation or,
which in substance is the same thing, not imposing taxes upon income. In my opinion, it follows that the
States Grants (Income Tax Reimbursement) Act 1942 is not within the power or authority of the
30 Commonwealth Parliament.
END QUOTE
3. Attorney-General (Vic); Ex rel Dale v Commonwealth ("Pharmaceutical Benefits case")

[1945] HCA 30; (1945) 71 CLR 237 (19 November 1945) (From High Court of Australia; 19
November 1945; 129 KB)
35 .
4. Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR
575 (23 August 1957) (From High Court of Australia; 23 August 1957; 204 KB)
QUOTE DIXON CJ
18. The constitutional basis for this enactment is s. 96. Section 96 forms part of the financial clauses of the
40 Constitution which we know as a matter of history were the final outcome of the prolonged attempts to
reconcile the conflicting views and interests of the colonies on that most difficult of matters. (at p603)
19. The fact that it came out of the Premiers' Conference of 1899 (see the Victorian statute Australasian
Federation Enabling Act 1899 (No. 1603) particularly s. 2 and first schedule), when the opening words of s.
87 (the Braddon clause) were inserted, does not assist in its construction nor ought the fact to be used for such
45 a purpose, notwithstanding that now it has a place, however inconspicuous, as part of the history of the
country. But it may explain why the terms in which it was drafted have been found to contain possibilities not
discoverable in the text as it emerged from the Conventions, and also why the same opening words were
adopted as in the Braddon clause as to the duration of the power, although in a context where they seem to
have no purpose or effect that is intelligible, or at all events credible. It is, perhaps, as well to set out s. 96. It
50 is as follows: - " 96. During a period of ten years after the establishment of the Commonwealth and thereafter
until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such
terms and conditions as the Parliament thinks fit." One may guess that s. 96 was regarded as connected with
the Braddon clause, s. 87, and that the purpose of the opening words was to enable the Parliament to terminate
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the operation of both together. See Quick and Garran: The Annotated Constitution of the Australian
Commonwealth (1901) pp. 869, 870, and per Evatt J., in Deputy Federal Commissioner of Taxation (N.S.W.)
v. W. R. Moran Pty. Ltd. (1939) 61 CLR, at p 803 . But s. 51 (xxxvi.) confers upon the Parliament legislative
power "with respect to matters in respect of which this Constitution makes provision until the Parliament
5 otherwise provides". On its face par. (xxxvi.) presupposes that the Parliament is authorised to provide
otherwise as to "matters" with respect to which the Constitution immediately provides: they will be matters
defined, like those enumerated in s. 51, in such a way as to be subjects "with respect to" which laws may be
made. Section 87 does deal with such a matter, viz. the disposal of the net revenue of the Commonwealth. In
the same way subject matters "with respect to" which legislative powers may be exercised are specified by the
10 other provisions of the Constitution, except s. 96, in which the phrase occurs "until the Parliament otherwise
provides" (cf. ss. 3, 7, 10, 22, 24, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73 and 97). (at p604)
20. In all such cases the Constitution makes directly an interim provision for the subject matter and s. 51
(xxxvi.) operates to confer power on the Parliament to make thereafter such provisions with respect thereto as
from time to time may appear appropriate. But s. 96 does not deal with a legislative subject matter; it does not
15 make some interim provision with respect thereto. It confers a bare power of appropriating money to a
purpose and of imposing conditions. Either the power is terminated or it continues. It would be easy to
understand if it terminated when another provision under or "with respect to" s. 87 was made but, however
much one may suspect it, there is nothing in the Constitution itself to warrant any such construction. The
conclusion reached in Quick and Garran: The Annotated Constitution of the Australian Commonwealth
20 (1901) p. 870 was that the section might be considered for all practical purposes as a permanent part of the
Constitution; and the Constitutional Commission of 1927-1929, after hearing the meaning discussed of the
limitation to "a period of ten years after the establishment of the Commonwealth and thereafter until the
Parliament otherwise provides", reported that they considered the words to be ineffective and recommended
that they be repealed. In the cases in this Court in which s. 96 has been considered, except in the passage to
25 which a reference has already been made in the judgment of Evatt J. in Moran's Case (1939) 61 CLR, at p 803
, it seems to have been taken for granted that the scope and purpose of the power conferred by s. 96 was to be
ascertained on the footing that it was not transitional but stood with the permanent provisions of the
Constitution. (at p605)
21. On this basis it is apparent that the power to grant financial assistance to any State upon such terms and
30 conditions as the Parliament thinks fit is susceptible of a very wide construction in which few if any
restrictions can be implied. For the restrictions could only be implied from some conception of the purpose
for which the particular power was conferred upon the Parliament or from some general constitutional
limitations upon the powers of the Parliament which otherwise an exercise of the power given by s. 96 might
transcend. In the case of what may briefly be described as coercive powers it may not be difficult to perceive
35 that limitations of such a kind must be intended. But in s. 96 there is nothing coercive. It is but a power to
make grants of money and to impose conditions on the grant, there being no power of course to compel
acceptance of the grant and with it the accompanying term or condition. (at p605)
22. There has been what amounts to a course of decisions upon s. 96 all amplifying the power and tending to
a denial of any restriction upon the purpose of the appropriation or the character of the condition. The first
40 case decided under s. 96 was Victoria v. The Commonwealth [1926] HCA 48; (1926) 38 CLR 399 . The
enactment there in question, the Federal Aid Roads Act 1926 (No. 46), did not express its reliance on s. 96
either in terms or by reference to the grant of financial assistance. It authorised the execution by or on behalf
of the Commonwealth of an agreement in a scheduled form with each of the States. It established a trust
account in the books of the Treasury to be known as the Federal Aid Roads Trust Account and appropriated
45 for payment into the fund such amount as was necessary for each agreement so executed. The scheduled form
of agreement set out in detail a plan or scheme for the construction of roads at the combined expense of State
and Commonwealth. The roads, called Federal Aid Roads, fell into three classes, (1) main roads opening up
and developing new country; (2) trunk roads between important towns; and (3) arterial roads carrying
concentrated traffic from developmental main trunk and other roads. Very specific provisions were made by
50 which what the State did in pursuance of the plan was made subject to the control or approval of the
Commonwealth. The amounts contributed by a State were to be about three-fourths of those contributed by
the Commonwealth. The contributions of the Commonwealth were to extend over ten years. It was provided
that payments would be made to the State out of the moneys for the time being in the trust account in such
amounts and at such times and subject to such conditions as the Commonwealth Minister might determine.
55 The form of agreement should perhaps be studied in detail to appreciate how much is implied by the decision
of the Court, but for present purposes the foregoing outline may be enough. The validity of the legislation was
upheld by this Court as authorised by s. 96. This means that the power conferred by that provision is well
exercised although (1) the State is bound to apply the money specifically to an object that has been defined,
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(2) the object is outside the powers of the Commonwealth, (3) the payments are left to the discretion of the
Commonwealth Minister, (4) the money is provided as the Commonwealth's contribution to an object for
which the State is also to contribute funds. Road-making no doubt may have been conceived as a function of
the State so that to provide money for its performance must amount to financial assistance to the State. But
5 only in this way was there "assistance". (at p606)
23. In Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [1939] HCA 27; (1939)
61 CLR 735 , one of the matters decided was the validity of s. 6 of the Wheat Industry Assistance Act 1938
(No. 53). It is unnecessary to describe the legislative plan or scheme of which that section formed a part or to
discuss the constitutional question from which I have isolated the question whether s. 6 was valid. The
10 provision was upheld (Evatt J. dissenting) on the ground that it amounted to an exercise of the power
contained in s. 96. (at p606)
END QUOTE
And
QUOTE
15 25. The decision, which was affirmed in the Privy Council [1940] HCA 11; (1940) AC 838; (1940) 63
CLR 338 , without express reference to this use of s. 96, must mean that s. 96 is satisfied if the money is
placed in the hands of the State notwithstanding that in the exercise of the power to impose terms and
conditions the State is required to pay over the money to a class of persons in or connected with the
State in order to fulfil some purpose pursued by the Commonwealth and one outside its power to effect
20 directly. I should myself find it difficult to accept this doctrine in full and carry it into logical effect, but
the decision shows that the Court placed no limitation upon the terms or conditions it was competent to
the Commonwealth to impose under s. 96 and regarded the conception of assistance to a State as going
beyond and outside subventions to or the actual supplementing of the financial resources of the
Treasury of a State. (at p607)
25 26. From the reasons given in the Privy Council it clearly appears that their Lordships considered that
it is no objection to a purported grant of financial assistance under s. 96 that it discriminates as
between States or that it is for the purpose of a distribution to a class of the people of a State; but what
was said did not necessarily include such an imperative requirement as s. 6 (7) imposes: for that
provision was not mentioned: (1940) AC at pp 857-859; (1940) 63 CLR, at pp 349-350 . (at p607)
30 END QUOTE
And
QUOTE
28. In the present attack upon the validity of the Tax Reimbursement Act 1946 -1948 the two States that are
plaintiffs naturally rest heavily upon the argument that the Act is a law for the restriction or control of the
35 States in the exercise of their taxing powers, that on its face the purpose appears of compelling the States to
abstain from imposing taxes upon income. If s. 96 came before us for the first time for interpretation, the
contention might be supported on the ground that the true scope and purpose of the power which s. 96 confers
upon the Parliament of granting money and imposing terms and conditions did not admit of any attempt to
influence the direction of the exercise by the State of its legislative or executive powers. It may well be that s.
40 96 was conceived by the framers as (1) a transitional power, (2) confined to supplementing the resources of
the Treasury of a State by particular subventions when some special or particular need or occasion arose, and
(3) imposing terms or conditions relevant to the situation which called for special relief of assistance from the
Commonwealth. It seems a not improbable supposition that the framers had some such conception of the
purpose of the power. But the course of judicial decision has put any such limited interpretation of s. 96
45 out of consideration. In any case it must be borne in mind that the power conferred by s. 96 is confined
to granting money and moreover to granting money to governments. It is not a power to make laws
with respect to a general subject matter, which for reasons such as I gave in Melbourne Corporation v.
The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 , may be taken to fall short of authorising a
special attempt to control the exercise of the constitutional powers of the States where there is a
50 connexion with some part of the subject matter of the federal power. The very matter with which the
power conferred by s. 96 is concerned relates to State finance. Further there is nothing which would
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enable the making of a coercive law. By coercive law is meant one that demands obedience. As is illustrated
by Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 , the duty may be
imposed, not on the State or its servants, but on others and yet its intended operation may interfere
unconstitutionally with the governmental functions of the State in such a way as to take the law outside
5 federal power. But nothing of this sort could be done by a law which in other respects might amount to an
exercise of the power conferred by s. 96. For the essence of an exercise of that power must be a grant of
money or its equivalent and beyond that the legislature can go no further than attaching conditions to the
grant. Once it is certain that a law which is either valid under s. 96 or not at all does contain a grant of
financial assistance to the States, the further inquiry into its validity could not go beyond the admissibility of
10 the terms and conditions that the law may have sought to impose. The grant of money may supply the
inducement to comply with the term or condition. But beyond that no law passed under s. 96 can go. (at p610)
29. Once the interpretation is accepted in full which the decisions in Victoria v. The Commonwealth
[1926] HCA 48; (1926) 38 CLR 399 , and in Moran's Case [1939] HCA 27; (1939) 61 CLR 735; (1940) AC
838; (1940) 63 CLR 338 combine to place upon the section it becomes difficult indeed to find safe
15 ground for saying that the condition of the grant of financial assistance may not be that a particular
form of tax shall not be imposed by the State. The interpretation flowing from these two decisions is not
consistent with the view that there must be a need for relief or a reason for giving assistance which is not
itself created by t he Commonwealth legislation connected with the grant. It is inconsistent with the view that
the terms or conditions cannot require the exercise of governmental powers of the State and require the State
20 to conform with the desires of the Commonwealth in the exercise of such powers. It seems a short step from
this to saying that the condition may stipulate for the exercise or non-exercise of the State's general legislative
power in some particular or specific respect. Once this step is taken it becomes easier to ask than to answer
the question - "Why then does this not apply to the legislative power of imposing this or that form of
taxation?" (at p610)
25 30. In short the result of my consideration of the two prior decisions upon s. 96 has been to convince me that
the decision of the majority of the Court with respect to the Tax Reimbursement Act in South Australia v. The
Commonwealth [1942] HCA 14; (1942) 65 CLR 373 was but an extension of the interpretation already placed
upon s. 96 of the Constitution. The three decisions certainly harmonise and they combine to give to s. 96 a
consistent and coherent interpretation and they each involve the entire exclusion of the limited operation
30 which might have been assigned to the power as an alternative. (at p611)
31. Before the meaning of s. 96 and the scope of the power it gives had been the subject of judicial
decision no one seems to have been prepared to speak with any confidence as to its place in the
constitutional plan and its intended operation. It may be said perhaps that while others asked where
the limits of what could be done in virtue of the power the section conferred were to be drawn, the
35 Court has said that none are drawn; that any enactment is valid if it can be brought within the literal
meaning of the words of the section and as to the words "financial assistance" even that is unnecessary.
For it may be said that a very extended meaning has been given to the words "grant financial
assistance to any State" and that they have received an application beyond that suggested by a literal
interpretation. (at p611)
40 32. But even if the meaning of s. 96 had seemed more certain, it would, in my opinion, be impossible to
disregard the cumulative authority of the three cases I have discussed and conclude that ss. 5 and 11 of the
Tax Reimbursement Act are invalid. I therefore think that the validity of that Act must be upheld. (at p611)
END QUOTE
5. Attorney-General (Vic); Ex Rel Black v Commonwealth ("DOGS case") [1981] HCA 2;

45 (1981) 146 CLR 559 (2 February 1981) (From High Court of Australia; 2 February 1981; 278 KB)
.
6. New South Wales v Commonwealth [2006] HCA 52; 81 ALJR 34; 231 ALR 1 (14
November 2006) (From High Court of Australia; 14 November 2006; 1493 KB)
QUOTE CALLINAN J.
50 (bold and colour added)
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679. The other example, The Tasmanian Dam Case[775], also involved the intrusion by the Commonwealth, by
legislation and not acquisition on just terms, this time under the asserted head of the external affairs power,
upon three, to adopt the language of Stephen J in Murphyores, "essential functions of a State", the supply
of hydro-electric power to its residents, the environment of a local area of a State, and the use of State land
5 as the State wished. This Court upheld the constitutional validity of that intrusion, thereby allowing the
Commonwealth to achieve, by very indirect means, the use, I would say misuse, of the external affairs
power, by reliance upon an international arrangement of a kind, and having an impact which I do not
believe the founders would have countenanced, and for which the Constitution, either textually or
otherwise, does not provide[776].
10 680. The Act here requires for its validity at least in part the application of the doctrine of indirect
operation[777]. For that reason, the capacity for intrusiveness upon essential State functions that its
application has, the Act deserves sceptical and close scrutiny.
END QUOTE
And
15 QUOTE
[777] By contrast, s 96 of the Constitution, for example, does legitimately constitutionally enable the
Commonwealth to achieve ends indirectly and without offence to other provisions and rights. It provides:
"During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament
otherwise provides, the Parliament may grant financial assistance to any State on such terms and
20 conditions as the Parliament thinks fit."
END QUOTE
.
Again, the real issue ignored by judges was that Section 96 was for extreme circumstances only
if a State was not able to meet its financial obligations and was at a risk to be bankrupt.
25 .
Again;
Mr. WISE-The order and good government of the Commonwealth would come under the term "public
services of the Commonwealth."
Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of the powers of the
30 Commonwealth, especially when dealing with the expenditure of the money of the taxpayers. In such a
case there will be a great deal of care taken to keep the nose of the Federal Parliament to the grindstone in the
matter of this expenditure. I do not think any expenditure will be constitutional which travels outside
these limits. We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution
35 will be above Parliament, and Parliament will have to conform to it. If any Act were carried giving
monetary assistance to any state it would be unconstitutional, and the object sought would not be
attained. That brings me to the question of whether it is desirable that there should be any such power either
expressed or implied. I have no hesitation in saying that it would be a disastrous thing for the future of the
[start page 1109] Commonwealth if there was any such power given.
40 And
Mr. OCONNOR.-Unfortunately, things do happen in states that are not always creditable to the public
spirit of the people. We must take human nature as we find it. There is no doubt that a state might be in such
straits that it would unconsciously be influenced by the feeling that it had behind it, as a last resort, a power
that would save it from public bankruptcy. I have always regarded any dealing between the Commonwealth
45 and the state in matters of money as a thing to be deplored. I should have much preferred some system of
finance by which the states and the Commonwealth could have been absolutely independent in matters of
account and in matters of money. Unfortunately, that cannot be; but if we must have relations of this
kind between the Commonwealth and the states, let them be such that the states will have certain
definite rights which they can assert, and the Commonwealth definite rights which it can assert.
50 Mr. FRASER.-And duties.
p 654 9-3-2009
p655
Mr. OCONNOR.-And duties. Do not let us create a relationship between the states and the Commonwealth
in which one state may have the power to exact terms from the Commonwealth, while the Commonwealth
may be able to bring pressure to bear upon a state or its representatives. If that is possible under the
Constitution, you have at once the germs of corruption and improper influence, which may be used
5 disastrously in the interests of the whole people. If the financial provisions of the Constitution are
administered in the spirit in which I hope they will be administered, there can be no danger to any of the
states.
.
It must therefore be very clear that the corruptive conduct associated with funding for projects
10 was on the minds of the Framers of the Constitution and they specifically provided for the Inter-
State Commission and debated this since 24-3-1897 over at least 35 days and as such section 96
never was intended to replace the very function of the Inter-State Commission and in fact the
framers of the Constitution were so eager that this Inter-State Commission could not be sidelined
by any government it specifically inserted the wording “There shall be” as to ensure this always
15 would exist.
101 Inter-State Commission
There shall be an Inter-State Commission, with such powers of
adjudication and administration as the Parliament deems necessary
for the execution and maintenance, within the Commonwealth, of
20 the provisions of this Constitution relating to trade and commerce,
and of all laws made thereunder.
.
As such, in the overall context Section 96 is a very limited Section that can only be used for
purposes to save a State from financial disaster as to, so to say, go belly up and then the
25 commonwealth may provide for conditions that may be required to ensure that any monies
advanced are not wasted. As such, the State may be acting recklessly and need to conform to
certain conditions as to safeguard any monies the Commonwealth were to provide to this State,
as not to unduly waste taxpayers monies collected from other States. Therefore the extend of
Section 96 to intrude into State affairs only is relevant where a State is on financial collapse and
30 needs to be saved and as such not a section to be applied for whatever road work construction or
other wimp a State may desire to spend monies on. Neither does it give the Commonwealth any
powers as to make unconstitutional demand upon the States as to blackmail them to hand over
powers or otherwise conform to its demands by refusing to refund the surplus as a way to deprive
the States of finances as that was never intended by the Framers of the Constitution and cannot
35 be implied either.
.
It is remarkable that with so many highly educated lawyers having been involved in this section
96 issue since about federation not one of them appears to ever have understood let alone
comprehended the real meaning and application of Section 96 and the very restrictive nature of
40 it. Yet, to me it was very obvious as rather then lawyers reading up what previous judges may
have stated and base their arguments upon that I did what I view was no more but common sense
and that is to research what the intentions of the Framers of the Constitution was as to Section
96, as some quoted above as to their various statements, and who cares about whatever lawyers
otherwise may try to make of it. Most of them never may have bothered to research the Hansard
45 Constitution Convention Debates and as the High Court of Australia specifically refused its
usage since about federation until about 1992 then no wonder they had it so wrong.
.
So much for the High Court of Australia to be the GUARDIAN OF THE CONSTITUTION, as
the Framers of the Constitution stated where the judges themselves as I view it, haven’t got a
50 clue that they must not interpret the statements and decisions of previous judges but they are
appointed and are getting paid for to do their own work and to do their own research as to ensure
they are not just merely repeating nonsense expressed by other judges but are competent to
p 655 9-3-2009
p656
present their own argument as to what is constitutionally appropriate. They then could have same
me a lot of time having to do so as to expose their total incompetence and would have save the
general public also a lot of harm.
.
5 Lawyers should keep in mind that “intelligence” and “intellect” is not what you get from
attending to a law study, it is something that you get by doing the hard work in research, etc.
.
Any one no matter how dumb can repeat any nonsense state by others but we should expect that
highly paid lawyers, indeed those specifically appointed to the High Court of Australia have a
10 more to show for then just repeating any nonsense uttered by other lawyers.
.
Some judges in the cases referred to above indicated that was it not for Section 96 some loans
conditions would be unconstitutional. The truth is that other then a specific loan to avoid a State
to become bankrupt they all were unconstitutional in the first place because they were not loans
15 designed from saving a State regarding a fiscal problem not being able to meet is obligations and
going, so to say, belly up, but were loans for ordinary matters for which no constitutional powers
existed for the Commonwealth to provide taxpayers hard earned monies to a specific state.
The States must be responsible enough to manage their own financial affairs and only in the
extreme a States falters the Commonwealth can invoke Section 96 and then set conditions to
20 avoid the continuation of this State financial problems and to protect it from repeating the same.
Hence the numerous loans purportedly done under the section 96 umbrella all are
unconstitutional and so ULTRA VIRES.
.
Again
that every clause should fit into every other clause; when we consider the great amount of time, trouble,
30 we shall undoubtedly have laid the foundation of lawsuits of a most extensive nature, which will harass
.
40 .
Therefore, where Section 96 is prior to Section 99 then Section 96 is bound to be consistent with
Section 99. Therefore any funding provided within Section 96 must be to seek to avoid any
discrimination against other States. Hence, any “financial bailout” for any State must be on such
terms as not to offend Section 99. Therefore, the Commonwealth could not give a State bail out
45 and disregard recouping the monies as then other States are discriminated against.
It should be understood that Section 96 must be considered that at the time of federation the
danger was that colonies having committed themselves as to debts, etc, not covered within
Section 105 could be confronted with being unable to pay their liabilities where they lost certain
powers of taxation when the Commonwealth commenced to legislate for this and as such their
50 viability as a State to financially survive was the issue. For the first “ten years” at the very least
and therefore is something catastrophic occurred to prevent a State to honour its financial
p 656 9-3-2009
p657
commitments. It was never intended to be an alternative for the Commonwealth to so to say

blackmail the States to have surplus refunded under unconstitutional conditions. This kind of
operation clearly defies what the Constitution was set up to achieve.
Again;
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get £100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
10 Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
15 occupy a few minutes in discussing it.
.
As such, unless a State is in such financial problems it cannot honour its financial commitments
and is standing to go bankrupt it must be accepted that Section 96 cannot be used, certainly not
for all kind of nonsense such as the 18 November 2008 $300 Million handout by Kevin Rudd
20 PM to municipal councils for repairing court houses, swimming pools, etc. As this clearly was
never intended by the Framers of the Constitution and neither could be deemed financial
assistance to a State where the States themselves are excluded of such money give away.
Fancy the Commonwealth to pursue the States for a reduction of surplus being paid to the States
because of what was without their consent squandered to the municipal councils.
25 This is not the kind of Constitution the Framers of the Constitution slugged so hard for to create.
In my view, those who are holding law degrees and do not comprehend this kind of nonsense
being unconstitutional do better to hand back their law degrees.
.
* I just wonder that if so many judges declared it to be constitutionally valid then why did they if
30 they were so utterly wrong?
.
**#** Check each and every judgment and you will find, at least for so far I could detect, that
none bothered to quote the actual debates as I did. Now, this may underline how they are all
taking something for granted and ignore to do proper research. While they may have held it was
35 constitutionally valid to provide grants within Section 96 under otherwise deemed
unconstitutional conditions but in a proper consideration what the Constitution set out to do and
that include the independence of the States in their reserve powers then Section 96 as being
applied simply is in total conflict of this. If anything it is common sense that Section 96 cannot
operate as if it is not limited by anything else, such as for example Section 116 of the constitution
40 to prohibit legislation as to religion. Once you accept that the Commonwealth cannot go against
Section 116 of the constitution in regard of Section 96 then you also need to accept that neither
can it go against Section 99.
.
Providing financial assistance to a State in dire strait therefore is not going to be a breach of
45 Section 99 if appropriate conditions are set as after all if a State were to go, so to say, belly up
then it could drag down also other States, as their financial status may also be placed in question,
and making it harder for them to borrow monies, etc. Section 99 simply prohibit Section 96 to be
used as a general funding facility, as now is used, but limits this to the extreme circumstances
and so not seeking to make discriminatory funding. If the meaning of section 96 was to be as
50 judges purport it to be then Section 99 has no value whatsoever in the Constitution. Hence, the
fact that Section 99 is in the Constitution then Section 96 must be subject to this provision.
.
p 657 9-3-2009
p658

Dr. COCKBURN (South Australia).-The Bill provides that the command is vested in the "Governor-
General," and not in the "Governor-General in Council." It has been said that the Federal Parliament will be
able to pass a military law which will alter this, but I say there can be no alteration in defiance of the
5 Constitution.
Mr. BARTON.-One improvement we want in this Constitution is the establishment of a

Commonwealth kindergarten.
Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot of lawyers.
.
10 The message is clear that the parliament cannot give the Federal Executive powers in regard of
Section 96 to circumvent what otherwise is prohibited by the Constitution
.
While Section 122 of the Constitution provided the Commonwealth with legislative powers as to
religion in regard of those residing in Commonwealth territories this as Section 116 was not
15 intended to deny this as Territories are quasi States, by the 1967 con-job referendum it actually
eventuated that the Commonwealth took over legislative powers and neither the States, the
Commonwealth or the Territories can now legislate as to religious matters regarding Aboriginals.
That is when you fool around with the Constitution and amend it without anyone comprehending
what BLACKHOLE you are creating in the Constitution.
20 .
Mr. HIGGINS.-You had it in the Draft Bill.
Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to objections from
members of the Convention. I am inclined to think that the Convention is right in not applying [start page
25 1765] the term "citizens" to subjects residing in the Commonwealth or in the states, but in leaving them to
their ordinary definition as subjects of the Crown. If, however, we make an amendment of this character,
inasmuch as citizens of the state must be citizens of the Commonwealth by the very terms of the
Constitution, we shall simply be enabling the Commonwealth to deal with the political rights of the
citizens of the states. The one thing follows from the other. If you once admit that a citizen or subject of
30 the state is a citizen or subject of the Commonwealth, the power conferred in these wide terms would
enable the Federal Parliament to deal with the political rights of subjects of the states. I do not think
the honorable member intends to go so far as that, but his amendment is open to that misconception.
.
I am not aware that there was ever a referendum to transfer the States legislative powers from the
35 States to the Commonwealth as to “citizenship” but then again, I am not a lawyer but an Attorney
and so may not rely upon fictional legislative powers but rely only upon what are legal facts. If
just we could stop this rot.
.
40 What we need is an OFFICE OF THE GUARDIAN, a constitutional council, that advises the
Government, the People, the Parliament and the courts as to constitutional powers and
limitations. As without such an an OFFICE OF THE GUARDIAN we will continue to having
to endure such nonsense and worse the robbing of the rights of the electors as to what is their
right that the Constitution is applied as intended by the Framers of the Constitution, and as
45 amended validly by referendums and not that politicians/lawyers are twist and turn the true
application of the Constitution as to whatever their contemporary desires might be.
.
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people and the states on
terms that are just to both.
p 658 9-3-2009
p659
.
So to say, changing the goal post to rob the people of their various rights isn’t what the
Constitution was to be about. Neither should anyone ever accept this kind of armed robbery upon
them. Armed robbery in that the Commonwealth is arming itself with unconstitutional powers
5 and robbing the general public of their state and other rights and so seemingly condoned by the
lawyers.
THIS MUST BE STOPPED.
.
10 END QUOTE Chapter Section 96 true application
.
Awaiting your response, G. H. SCHOREL-HLAVKA (Gerrit)
END QUOTE 22-11-2008 correspondence Mr. Kevin Rudd, PM
.
15 Albeit this document is extensive it should be understood that the relentless persistency by
Moorabool Shire Council and its solicitors Maddocks Lawyers as well as VCAT and others to
refuse to abort the 16 March 2009 hearing despite the ruling of VCAT Member Ms Preuss on 27
January 2009, upon Mr G. H. Schorel-Hlavka’s submission that the 16 March 2009 hearing
could not proceed, that indeed the 16 March 2009 hearing as to sentencing could not proceed,
20 then the risk of a sentence nevertheless being imposed upon Mr Francis James Colosimo, so to
say, warrants a full scale counter attack to prevent the continuation of INJUSTICE to eventuate
in that regard.
.
There was ample of WARNING given by Mr. G. H. Schorel-Hlavka that a comprehensive
25 document would be filed if the proceedings of 16 March 2009 were not aborted in view of the
ruling also of Mr Preuss of 27 January 2009 in this regard that it could not proceed, and lacking
any written confirmation to this (at the time of this Part 2 being compiled – with less then a week
to go before the planned hearing) to indeed show beyond doubt that the 16 March 2009 hearing
is not proceeded with then no matter how much work is to digest the content of this document it
30 must be understood it was a lot more work for Mr. G. H. Schorel-Hlavka to compile it for Mr
.
Now that it is filed it is part of the litigation and places Moorabool Shire Council indeed in the
awkward position that not to challenge the content of this part of the submissions it would by this
35 imply to agree with the content thereof and by this the relevant implications of it also.
.
p 659 9-3-2009

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p1

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADDRESS TO THE COURT/VCAT (Part 2)

Billed 28/05/2007 Attendance at court Solicitor Attending hearing on behalf of Council

Division 2—Appointment of Administrator

46. Appointment of administrator

PART 6—REHEARINGS AND REASSESSMENT OF ORDERS

60A. Application for rehearing

(3) Sub-section (2) does not apply to the Public Advocate.

Division 2—Reassessment of Orders

(1) The Tribunal must conduct a reassessment of a guardianship order or an

30 (c) in the case of a reassessment of a guardianship order—

Below (That is in the electronic complete format of this ADDRESS TO THE

A Objective or Subjective Rationality?

Mr. HIGGINS.-But suppose they go beyond their power?

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to

A book on CD, making litigation a more level playing field

 VICTORIAN Parliament to purportedly allowing Aboriginals (in breach of

DEFENCE AND COUNTERCLAIM ON BEHALF OF FRANCES JAMES COLOSIMO

commonwealth ,the States and Territories cannot , by co-operation , amend the

1.That the respondent confirms paragraphs 1-17 of the statement of defence.

4. Accordingly the respondent seeks the following;

Criminal Code Act 1995

This compilation was prepared on 10 July 2008

The operation of amendments that have been incorporated may be

Prepared by the Office of Legislative Drafting and Publishing,

(1) A person is not criminally responsible for an offence that has

50 (3) This section does not negate criminal responsibility for an

offence relating to the use of force against a person.

Francis James Colosimo as to try to get Mr Francis James Colosimo, in particularly a

A Proposed Law: To alter the Constitution to recognise local government.

10 Do you approve this proposed alteration?

Jeff McMullen, ABC, DIFFERENCE OF OPINION

25 Re; levels of Government

WE EITHER HAVE A CONSTITUTION OR WE DON’T!

DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)

Hansard 5-3-1891 Constitution Convention Debates

Hansard 17-3-1898 Constitution Convention Debates

Parliament has been. The great federal industries of Australia-fruit-growing, dairying,

30 Hansard 4-3-1898 Constitution Convention Debates

35 The motion was agreed to.

The CLERK read the petition, as follows:-

Date: Tue, 28 Aug 2007 01:23:27 +1000 (EST)

By colonial referendums this was approved by all Colonies electors.

MAY JUSTICE ALWAYS PREVAIL®

107 Graham Road

"CONSTITUTIONALIST" and Author of books in the INSPECTOR-RIKATI® series on certain

35 See also website; http://schorel-hlavka.com and

As a CONSTITUTIONALIST I then ask who on earth authorised those organs of

You see that is where the constitution is very handy for.

What we have therefore is unconstitutional legislation by the Victorian State

As such, where are basically terrorised by interest charges by water trading

10 Amendment suggested by the Legislative Assembly of Victoria, and the Legislative

After "banking" insert "excluding state banks."

If that is carried, the remaining words may be inserted.

The Hon. Sir J.W. DOWNER: Is it a Government bank?

40 The Hon. Sir J.W. DOWNER: Then, it is a state bank!

Services rendered in the Parliament to any person or state.

QUOTE Mr. ISAACS.-

Division 3—Justice and Liberty

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

[1368] 42 Edward III c. III

PART II—TRANSCRIBED ENACTMENTS