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060719gh Address Part 3 v7

060719gh Address Part 3 v7

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060719gh-address-part 3-v7 is the third of three parts regarding the very successful 5-year epic litigation in which I comprehensively defeated the Commonwealth of Australia upon all constitutional issues I raised, including that the Commonwealth cannot compel any person to register and/or to vote.
060719gh-address-part 3-v7 is the third of three parts regarding the very successful 5-year epic litigation in which I comprehensively defeated the Commonwealth of Australia upon all constitutional issues I raised, including that the Commonwealth cannot compel any person to register and/or to vote.

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Published by: Gerrit Hendrik Schorel-Hlavka on Jan 01, 2010
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Part 3 Page 1

Page 1 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

ADDRESS TO THE COURT, Part 3

County Court of Victoria, Case numbers T01567737 & Q10897630

With an OBJECTION TO LEGAL JURISDICTION, who has the carriage of the
proceedings?
&
No legal jurisdiction can be invoked with Constitutional matter before the Court.
&
NO CASE TO ANSWER
&
STANDARD OF PROOF
&
DOUBLE JEOPARDY RULE

AVERTMENT

Part XXIII Miscellaneous

Section 387 384 Commonwealth Electoral Act 1918

(i) section 326 or 327 of this Act or section 28 of the
Crimes Act 1914; or

388 Averments deemed to be proved

In any prosecution in a court of summary jurisdiction in respect of
a contravention of the provisions of this Act or the regulations
relating to compulsory enrolment or compulsory voting, instituted
by an officer or by any person acting under the direction of an
officer, the averments of the prosecutor contained in the
information or complaint shall be deemed to be proved in the
absence of evidence to the contrary.

There is something illogic about this section in that it demands that unless the Defendant present
evidence to prove contrary to the averment rule that there is evidence disproving the fact alleged
by the Commonwealth director of Public Prosecution there is no requirement for the Director of
Public Prosecution to prove anything.

Now, let take this in the correct prospective by example;
A trial commence and the Prosecutor having charged the Defendant with failure to vote then
commence his case and using the averment rule does not provide any evidence to prove the
charge. The Defendant then pleads NO CASE TO ANSWER, and the judicial officer rejects this
on the basis that the averment rule applies. The Defendant then commences to open his case and
present evidence contrary to the charge. The Defendant has the conduct of civil standards of
proof and as such merely has to state that he/she attended to the polling station. And as such the
defendant has completed his contrary evidence. While the Prosecutor can now cross examine the
Defendant, something the Defendant was denied to do upon the Prosecutor as to elicit any
evidence because the Prosecutor relies upon the averment rule, now the Prosecutor ask all kinds of
questions to try to trap one way or another the Defendant to give evidence that he had perhaps not
filled in the ballot paper or otherwise did not accept them. The Prosecutor has clearly no legal
position to now call witnesses, such as those who were at the polling station as to what actually
occurred at the polling station, and so is seeking to use the Defendant to try to prove his case.
However, because of the NO CASE TO ANSWER claim the Defendant made before opening
his own case, the judicial officer must now find that the failure of the prosecutor to present
evidence and to rely now upon the Defendant to give some kind of evidence that he may not
actually have filled in any ballot paper is irrelevant as the claim of NO CASE TO ANSWER
relies upon what evidence was before the Court PRIOR TO what evidence was before the Court
when this claim was made and must disregard any evidence that was given afterwards. A Court of

Part 3 Page 2

Page 2 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Appeal, if the matter is appealed, re-assess the claim of NO CASE TO ANSWER, upon the basis
if the Prosecutor in fact had proved “BEYOND REASONABLE DOUBT” the charge and by
this must disregard any evidence that was given after the claim of NO CASE TO ANSWER was
made. The Prosecutor having the “CRIMINAL STANDARD OF PROOF” there by had the
onus to disprove each and every excuse the Defendant may proffer on the “CIVIL STANDARD
OF PROOF
” and therefore where the Prosecutor takes the gamble of relying upon the averment
rule that he takes a CALCULATED RISK that it might be fatal to his case. The judicial officer,
who becomes aware , once the Defendant opened his case, that the Defendant in fact on CIVIL
STANDARDS OF PROOF
had a excuse, then is duty bound to discontinue the trial and make a
ruling that the NO CASE TO ANSWER claim by hindsight now is validated. This, as the
Prosecutor already had closed his case. To allow for the prosecutor to use cross-examination as a
way to try to re-open his case and to try to thereby get away from the averment rule and now seek
to rely upon evidence elicited from the Defendant would a be gross abuse of the legal processes
and would defeat the entire purpose of what the averment rule is about and interfere with the DUE
PROCESSES OF LAW
.
It, so to say, would giver the Prosecutor another bite on the cherry to re-commence his case,
having refused already to present relevant evidence. It also robs the Defendant of a FAIR and
PROPER trial as the Defendant is denied to elicit of any witnesses for the Prosecution what he
may wish to present as simply by the averment rule application the Prosecutor can conceal
evidence from the Court that might be critical to the Defendants case.
If for example the Defendant attended to the poling station and notified staff that he had religious
objections to vote, which is provided for within Section 245 of the Commonwealth Electoral Act
1918
for an excuse not to vote, then regardless if the staff member of the Australian electoral
Commission then by error or otherwise did not mark of the name of the Defendant is not an issue
as within the legislation no charge can be upheld. Therefore, it is not relevant if the Defendant in
this example did not receive ballot papers, if his/her name was not marked of rather what is
relevant if at the time the Defendant by what occurred at the polling station was excused not
having to vote. the staff member having not issued any ballot papers may in his/her mind correctly
not mark off the name of the Defendant as after all he/she did not fill in any ballot paper.
When then the Prosecutor, having relied upon the averment rule failed to present witnesses that
could, so to say, shed a light upon matters then this must be deemed FATAL to the charges and
no charges could be legitimately upheld.
Therefore, any evidence of by the Defendant during cross examination, if he gave such evidence.,
that he did not receive any ballot papers, after attending to the polling station is not of any
standard of criminal proof by the Prosecutor that the Defendant therefore is guilty of failing to
vote.
In the proceedings before the Magistrates Court of Victoria at Heidelberg on 16 and 17 November
2005 the Prosecutor at no time did cross examine the Defendant in that case, when advised the
staff of the Australian Electoral Commission did not issue any ballot papers, if this was because of
having been made or being aware of any religious objection. The Prosecutor neither cross
examined if the Defendant had not been issued with ballot papers because of having declared
perhaps that he had already submitted a postal voting or was to do so that day. And I raised this
with the magistrate that the Prosecutor had failed to address this!
As such, what we had was a conviction where even if all issues regarding validity of citizenship,
writs, proclamation, the appointment of Governor-Generals, etc were all overcome somehow by
the Prosecutor, something I view is beyond his capacity to get around, then in the end his own
usage of the averment rule is FATAL to his case as he could not now in cross examination call
witness , such as staff members of the Australian Electoral Commission to give evidence that
either they denied any religious objection having been made or otherwise any postal voting or pre
voting was recorded.
For example, in regard of the 2004 purported federal election, standing as a candidate, I was
known to refuse to indicate a preference vote as I opposed the murderous unconstitutional
invasion into the sovereign nations Afghanistan and Iraq and did not wish to be seen to support

Part 3 Page 3

Page 3 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

this by giving preference vote indications which may be seen that somehow I supported this
humanitarian disaster and warmongering. Hence, it was therefore critical to the Prosecutors case if
perhaps the staff member sitting at the table when my wife and I attended at the polling station
may have been aware or have been made aware that I opposed any kind of involvement as to the
murderous invasions and as such was not issued any ballot papers on that basis.
I was well aware during the proceedings that it didn’t matter for me to give whatever evidence as
ultimately having made a NO CASE TO ANSWER the magistrate was bound by this to
reconsider then if in light of the subsequent evidence his earlier ruling to dismiss my submission
of NO CASE TO ANSWER was found to be proven where I presented a reasonable excuse that I
had attended to the polling station and as such it was not for the Court to try to score some
conviction where the Prosecutor himself had elected not to call witnesses who could have clarified
what occurred that day.
Again, it was not for the magistrate to assume what may have occurred that day where the
Prosecutor himself refused to call witnesses whom could have elaborated on what had occurred on
that day! The Defendant was denied the option to cross witnesses in that regard as there were
none who could have shed light on this and as such the Prosecutor taking the gamble to prevent
the defendant to question any staff of the Australian Electoral Commission by this had overplayed
his hand, so to say.

Hansard 30-3-1897 Constitution Convention Debates
Mr. DEAKIN:

It appears to me that the representatives of the less populous States decline to distinguish
sufficiently between the money powers and the general powers to be conferred by a
Constitution. Now the distinction is no mere fantasy. It should be recognised in the forefront
of the Constitution. In the exercise of both powers there are instances in which it is possible
that State interests may be put in jeopardy. State rights cannot be put in. such jeopardy; they
are enshrined and preserved under the Constitution and protected by the courts to be
established under that Constitution.

It must be clear that the Framers of the Constitution themselves relied upon certain principles
having been embedded in theConstitution, and unless one is a “constitutionalist” as I am by self
education, no one really should attempt to use constitutional provisions an limitations or any
legislation within that unless it has been checked of its constitutional correctness.

"A right is not what someone gives you;
it's what no one can take from you."

HYPERLINK "http://quotes.liberty-tree.ca/quotes_by/ramsey+clark" Ramsey Clark
U. S. Attorney General New York Times, 2 October 1977

The right to vote exist and cannot be made subject to curtailments. Only if a person exercise a
right to vote can appropriate legal provisions regarding the exercise of such right be invoked, if
they are constitutionally valid, that is.
For example, a person whom obtains a divers licence and is entitled to drive has the right to
exercise this but cannot be made obligated to do so. It is only when exercising this right to drive a
motor vehicle that then his duties to conform with road rules apply in that regard.

Hansard24-3-1897 Constitution Convention Debates;
Sir GEORGE TURNER:
I would go the length of saying that everyone who has the right in the various colonies, if
they desire to exercise their franchise
, should have the opportunity of doing so.

Part 3 Page 4

Page 4 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

The right to vote cannot be enforced if the person holding this right desires not at that time to
exercise that right.

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)):
"(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. The
Legislature can impose no duties except on them; and when legislating for the benefit of
persons, must, prima facie, be considered to mean the benefit of those who owe obedience
to our laws, and whose interests the Legislature is under a correlative obligation to protect."
In Delaney v. Great Western Milling Co. Ltd (1916) HYPERLINK
"http://www.austlii.edu.au/au/cases/cth/high_ct/22clr150.html" 22 CLR 150 , at pp 161-
162, Griffith C.J. quoted and applied those remarks.

I view that the so called “Pacific solution” is not only unconstitutional but the Commonwealth of
Australia has no constitutional powers to detain people in breach of constitutional provisions. The
Framers of the Constitution specifically made clear that the “ADMINISTRATION” of
Commonwealth law enforcement was with the States, and Section 120 of the Constitution was put
in place for the detention of any person accused or convicted in State prison system.

With the “TAMPA” incident and the “CHILDREN OVERBOARD” saga and the
unconstitutioinal detention refugees, and the wrongful detention of children who were natural
born in Australia but unconstitutionally robbed of their birth right by the Commonwealth of
Australia and so unconstitutionally deported as “STATELESS” I took the stand against this, and
while legally not entitled to advise people not to vote, I was entitled to refuse to give preferences
and make known that I opposed to vote that may somehow be used by preferences that could be
used to claim that those involved in those human and unconstitutional disasters were having my
support. This is the problem with “preference” voting system that if the other candidates all are in
support of conduct that I deem unconstitutional then giving any preference of voting my vote and
those of others who follow this preference would automatically go to the next candidate allocated
where I would not be elected. Therefore, the preference voting system in effect denied any elector
to vote as he/she desires as it basically forces a person to have his/her vote counted for a
warmongering candidate where theopponent to warmongering fails to be elected.
While it may be argued that the elector can leave his/her ballot paper blank, this would rob the
elector of the right to vote for the very candidate that opposed such inhumane and unconstitutional
conduct. As such, the very POLITICAL LIBERTY enshrined in the Constitution is denied.
Therefore, besides the legal issues governing the validity of the election process there were ample
of reasons for me to not vote and to avoid encouraging other to vote for any person I view is
deviant. By refusing to give a preference to anyone and making known my opposition to the
BANANA REPUBLIC kind of system now in place I did achieve more by this then had I
refrained to be a candidate, had withdrawn, etc.
I did publish;

INSPECTOR-RIKATI® and the BANANA REPUBLIC AUSTRALIA
Dictatorship & deaths by stealth- Preliminary book edition on CD

ISBN 0-9580569-3-5

And

INSPECTOR-RIKATI® & There is no Government to go to war
A book on CD About Legal Issues Confronting Australia

ISBN 0-9580569-5-1

I am due to publish (at the time of drafting this ADDRESS TO THE COURT)

Part 3 Page 5

Page 5 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

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

And also;

INSPECTOR-RIKATI® on CITIZENSHIP & Why not voting
A book on CD about ELECTORAL AND CITIZENSHIP RIGHTS

ISBN 0-9751760-1-3

Therefore no one can deny that I have placed on record time and again my opposition to war
mongering my views about the currentBANANA REPUBLIC OF AUSTRALIA situation, etc.

Therefore it neither could be claimed by the Commonwealth director of Public Prosecution that I
did not make any attempt in regard of the issues I raise as the records are in tens of thousands of
pages.

Indeed, in;

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

I am intending to publish more then 400 Megabite of correspondence to politicians and others
both within and outside the Commonwealth of Australia, including various heads of Government,
including constitutional issues. This is why I publish on CD as I include also responses such as
from His Royal Highness Prince Charles and Prime Minister Tony Blair for their copies of my
books forwarded to them.

As a judge some 20 years ago made clear to a opponent barrister that my conduct is that of a
TRAPDOOR SPIDER, and that I open up a PANDOORA BOX and that as long as I remained
within the legal provisions there was nothing he could do to stop me cross examining the witness.
It was also because of being labelled TRAPDOOR SPIDER that judges, magistrates and even
lawyers of opposing parties requested my assistance being it at the bar table and or in
deliberations as they were well aware that I have a skill to negotiate (MEDIATION) and get
unrepresented parties to achieve a FAIR and PROPER hearing.
The BLACKSHIRTS was a case where four of the BLACKSHIRTS had been charged with
STALKING on 24 November 2001. Three of them were before the Magistrate Court of Victoria
at Ringwood on 2-December 2001, where two were legally represented and the third Defendant,
suffering dyslexia relied upon an ADDRESS TO THE COURT I had assisted with to present his
case ofNO CASE TO ANSWER. The magistrate dismissed all charges, where the unrepresented
Mr Ray Vella refused to have the case adjourned and insisted the trial to proceed (while the
lawyers were willing to have the matter adjourned) because the police never having served any of
the evidence upon the unrepresented Mr Ray Vella obviously could not proceed when the
magistrate ruled in favour of Mr Vella to proceed with the case. Hence the case ended with
dismissal of all charges relating to STALKING. A week later, the police reinstated the
STALKING charge against the three, and their lawyers then made known that the police were
entitled to do so. I became the unofficial co-ordinator of all four Defendants and made clear that
legally this could not be done and the re-instatement of charges was “an abuse of the legal
processes” in particular that the police could not use evidence against Mr Vella they had prior to
the original charges having been dismissed but never had served it as without fresh evidence there
was no case. In the end His Honour Ross J of the County Court of Victoria in September 2004
indicated that the reinstatement of the charges already dismissed previously by the magistrate

Part 3 Page 6

Page 6 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

were “an abuse of the legal processes”. This being precisely what I had claimed all along! It
would effectively have been against the DOUBLE JEOPARDY rule to retrial people already
obtained a dismissal of charges. Further more, where the police elected not to provide evidence to
the defendant prior to the original charge having been heard before the Court then the police
cannot use this evidence subsequently without any fresh evidence to support the charge. The jury
found Mr Abbott, who had sought obtained a verdict from the Magistrates Court of Victoria but
had elected to have a jury,NOT GUILTY to the same charge.

Sure, I am not a legally trained lawyer, so to say, but the fact that lawyers (including barristers)
seek my assistance which I always provided FREE OF CHARGE, in civil and criminal matters,
including to research constitutional issues, may indicate that as an Attorney and McKenzie Friend,
etc, I have assisted many.
The difference being that not being a lawyer no one can force me to assist someone I desire not to
assist, I can step out of any case if I consider the party to be acting deceptive. By not receiving
any financial benefits in assisting in cases no one can hold it above my head that I do it for the
monies. I do it because I belief in JUSTICE.
Therefore the Australian Electoral Commission really got themselves, so to say, a TRAPDOOR
SPIDER
on their hand in that they took me on perhaps thinking that abusing the legal processes
would be a common issue to them to score convictions regardless of what JUSTICEdemands.
Sure, I could have simply made known in my writings, when asked why I allegedly failed to vote,
that I had certain religious objections, but as I indicated extensively before the Magistrates Court
of Victoria at Heidelberg, it was not within the principles embedded in the Constitution that the
Australian Electoral Commissioner can set himself up, so to say, as judge and jury, as to hold
some kind ofSTAR CHAMBER COURT and then fine me $20.00, as any legal provision by the
Commonwealth of Australia would be unconstitutional. Hence, the conduct used by the Australian
Electoral Commissioner was in that regard also unconstitutional. Further, as I did set out
extensively in my ADDRESS TO THE COURT for the 16 and 17 November 2005 hearing that
the documents provided to me by the Court were deceptive and misleading as to my rights as a
Defendant. By this also causing the Court to be bias or seen to be bias.

The problem now faced is that a wrongful convictions were obtained against me (as set out below
I amAGGRIEVED) and even a recorded failing to vote on 1 January 2005, which is always New
Year Day, and despite having notified the Court in writing that there never was on that day any
local council, State or Federal election I was refused (when I attended to the Registry of the
Magistrate Court of Victoria At Heidelberg) when lodging the appeal, any issue of orders
otherwise, (As such I have the Order that I failed to vote on 1/1/2005, which obviously is a
LEGAL FICTION and I intend to publish in my forthcoming books also.) that the issue of
DOUBLE JEOPARDY arises for this also.

It would be highly in appropriate if the Commonwealth Director of Public Prosecutions having
relied upon the averment rule, and having wrongly obtained a conviction now could use what he
learns of this ADDRESS TO THE COURT as to possible restructure his case and to try to get
somehow witnesses he did not use in the first place, who may or may not recall what occurred as a
weapon to try to still score some conviction.
This hardly is what the legal processes is about as for the Commonwealth Director of Public
Prosecutions abusing the legal processes, and indeed where the summonsed were issued that relies
upon the averment rule then where despite the ruling of the magistrate on 4 August 2005 the
Commonwealth Director of Public Prosecutions refused to present all witnesses on 16 and 17
November 2005 then I view he has burned his options and can not now , so to say, take a second
bite in the cherry, to try to rectify what he failed to do in the first place.
TheDOUBLE JEOPARDY rules is precisely for this that Prosecutors are not willy nilly going to
court and then when they fail to achieve a conviction can restart litigation time and again until
they may score a conviction, by seeking to circumvent whatever obstacle they had previously.

Part 3 Page 7

Page 7 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

I stated my case and was denied any opportunity to question witnesses who may have been
present at the relevant times that the purported elections were held and view that the
Commonwealth Director of Public Prosecutions cannot now complain that by his own conduct not
to present witnesses and other evidence this was FATAL and the Magistrates Court of Victoria
ruling onOBJECTION TO LEGAL JURISDICTION on 17 November 2005 was defective this
as the magistrate was bound to deal with each and every issue I had raised to support my
OBJECTION TO LEGAL JURISDICTION and cannot ignore a single ground of them and
having ignored to make appropriate rulings then failed to invoke legal jurisdiction.
Further, that where there was a NO CASE TO ANSWER submission and by the prosecutor
seeking albeit perhaps misguided to rely upon the averment rule, despite of the 4 August 2005
magistrates ruling that he must present all relevant evidence, then clear the NO CASE TO
ANSWER
submission was to have been upheld, as at no time did the Commonwealth Director of
Public Prosecutions ever address the issue of postal voting, pre-voting and religious objections to
vote and hence had not made out a case that there was a case to answer.
The refusal by the magistrate to provide a written Reason of Judgment also ought to be taken that
somehow the magistrate denied JUSTICE in that regard as I was at the very least entitled to
know why I was convicted and with reasons why my evidence was not accepted where there was
such a gross failure by the Commonwealth Director of Public Prosecutions to prove beyond
reasonable doubt that I had not voted or was not required to vote.

The issue then is also that in view that there are orders on foot for the magistrate of 4 December
2002 ordering, upon the submission of the Commonwealth Director of Public Prosecutions that
the constitutional issues are to be decided by the High Court of Australia, which the
Commonwealth Director of Public Prosecutions failed to pursue, even so having the carriage and
duty to prove jurisdiction, even where constitutionally challenged, then this order consented to by
me and neither parties having appealed prevented the magistrate on 16 and 17 November 2005 in
any event to hear and determine the case. This, I did make known to the Court then but it was
ignored.
A a self educated “constitutionalist” with the objections on foot and they remain on foot because
of the orders of 4 December 2002 all legislation objected against remain ULTRA VIRES and
therefore it is not merely some issue as perhaps the Commonwealth Director of Public
Prosecutions to seek to withdraw the ill conceived charges against me, as even if the
Commonwealth Director of Public Prosecutions seeks to abort the case he is still faced that
constitutionally the relevant legislative provisions, the proclamation and the writs which all were
disputed remain ULTRA VIRUS.
As such, I view, the onus is upon the Commonwealth Director of Public Prosecutions to achieve
some legal determination from the High Court of Australia as to the validity or invalidity of what
was objected against before the Commonwealth Director of Public Prosecutions can even
contemplate to withdraw any charged which clearly were ill conceived as Section 245 of the
Commonwealth Electoral Act 1918 in any event excuse any person not to vote upon religious
grounds. And no religious test can be done by the Commonwealth Director of Public Prosecutions
about this as this is strictly prohibited by Section 116 of the Constitution and by the Constitution
in general as this is embedded in the Constitution.

HANSARD 2-3-1898 Constitution Convention Debates
Mr. SYMON
.-
The next point is that this is an amendment to secure an amendment of the Constitution in
case the Federal High Court, which is the body in whom we repose the custody and care of
our liberty from all kinds of legislative and executive encroachments, decides, in regard to a
particular law of the Commonwealth, that it is ultra vires. If the question is of sufficient
importance to warrant an amendment of the Constitution, let the Constitution be amended
under the provision of clause 121 in the ordinary constitutional way. Why not?

Part 3 Page 8

Page 8 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

And

Mr. SYMON.-

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
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 viresby 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 viresis not treated, is grossly
unfair. You must, to be just, deal with both the states and the Commonwealth upon the same
method in regard to alterations of the Constitution.

Hansard1-3-1898 Constitution Convention Debates

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

Mr. GORDON.-There will be more than one sentry. In the case of a federal law,
every member of a state Parliament will be a sentry, and, every constituent of a state
Parliament will be a sentry. As regards a law passed by a state, every man in the
Federal Parliament will be a sentry, and the whole constituency behind the Federal
Parliament will be a sentry.

And

Mr. GORDON.-We must postulate of all our Parliaments that they will not pass laws
which are ethically indefensible.
We must also postulate that they will pass laws which
may do injuries to individuals; but I contend if any serious individual injury is done, or any
injury is done to a number of persons whose interests really require to be protected, the state
will intervene and assist them, on the one hand, if it is an infringement by the Federal
Parliament. On the other hand, the Federal Parliament will intervene and assist them if it is
an infringement by the state Parliament.

And

Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his
mind to the subject he will see it is not abstruse. If a statute of either the Federal or the states
Parliament be taken into court the court is bound to give an interpretation according to the
strict hyper-refinements of the law. It may be a good law passed by "the sovereign will of
the people," although that latter phrase is a common one which I do not care much about.
The court may say-"It is a good law, but as it technically infringes on the Constitution
we will have to wipe it out."
As I have said, the proposal I support retains some remnant of
parliamentary sovereignty, leaving it to the will of Parliament on either side to attack each
other's laws.

And

Mr. GORDON.-If the law only affected a few individuals, the state might not intervene,
but it is possible that a law referring to only a few individuals may involve the benefit of the
whole of the community.

[start page 1683]

Part 3 Page 9

Page 9 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Mr. SYMON.-It is not a law if it is ultra vires.

Mr. GORDON.-It would be law by acquiescence. It would remain a law until it was
attacked.
It might injure a few individuals, but that might be to the benefit of the whole. Or
if it were not, the party whose area of power was infringed on would attack if.

And

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

Mr. GORDON.-It is still the expression of Parliament. Directly a Ministry seeks to
enforce improperly any law the
citizen has his right.

Mr. HIGGINS.-What I mean is: There may be an act done by the federal power

which is illegal.

And

Mr. DEAKIN.-He could not paralyze the law unless it ought to be paralyzed.

And

Mr. BARTON.-Our civil rights are not in the hands of any Government, but the
rights of the Crown in prosecuting criminals are.

And

[start page 1685]

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 that it is
being improperly administered, and it leaves open the whole judicial power once the
question of ultra vires is raised.

And

Mr. WISE.- about ( In a book prepared by you, sir, entitled A Manual of Reference for the
use of Members of the National Australasian Convention
, to which frequent reference has
been made, the matter is further dealt with. You say, at page 126, in words that I would like
to adopt as part of my argument:-)

Public attention is probably directed to other matters, and the question has, in
many cases, shrunk into its native insignificance; and "it is to the interest of
every man who wishes the Federal Constitution to be observed that the
judgments of the federal tribunals should be respected, and they take it that the
courts are the protectors of the federal compact, and that the federal compact is,
in the long run, the guarantee of the rights of the separate state."

Again;

Part 3 Page 10

Page 10 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

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.

Therefore, as the framers of the Constitution referred to, as a “sentry” I have every right to object
to legislation and any part thereof I deem unconstitutional (in conflict with constitutional
limitations, etc)

Therefore, while the Australian Electoral Commission used lawyers and abused the legal
processes to prevent my objections to be heard otherwise before the Courts, I for one expected all
along that the Australian Electoral Commissioner would, so to say, pull out all stops to seek some
kind of revenge against me for having exposed the rot in the election and pursue me for allegedly
failing to vote.
I also expected that because I am not a lawyer the lawyers engaged for and on behalf of the
Commonwealth of Australia would likely consider me to be below their stature (level) and likely
ignore whatever I was placing before them.
After all in over two decades in the Courts I have experienced this time and again by many
lawyers regardless if they are barristers or judges.

Alice Carter about the Family Court of Australia;
(Alice Carter also acted as legal adviser for the Northern Territory)

“unfortunately, much of the proceedings I witnessed were repetitive, and general
disorganised,..”

“Further more the court was disorganised as many files were missing and cases were
adjourned early as many counsel failed to turn up.”

“I am now able to understand the general public’s fear of going to court and facing judges; I
too, was overawed by the excessive formality and surprised by the appearance, at least of the
judges’ authoritarian and patronising attitude towards others in the court room.”

Likewise often other lawyers , so judicial officers are found to take this kind of conduct.
Indeed, I have had judges who simply altogether ignored my ADDRESS TO THE COURT and
hand down a Reason of Judgement that the Full Court on Appeal makes clear failed to
appropriately consider what I had stated in the ADDRESS TO THE COURT, and grand the
appeal.

In this case, I commented to the magistrate that he appeared to me not to have read the
ADDRESS TO THE COURT, but the magistrate insisted he had, this while the counsel for the
Commonwealth Director of Public Prosecutions indicated not going to bother to read it. As I
explained to the magistrate I cannot force the counsel for the Commonwealth Director of Public
Prosecutions to read the material but I nevertheless can rely upon it.

The ADDRESS TO THE COURT extensively detailed also that there was a 4 December 2002
order by the magistrates Court of Victoria, at Heidelberg to adjourn matters upon the submission
of the Commonwealth Director of Public Prosecution (I consented to) for the High Court of
Australia first to deal with the constitutional issued I had raised as an OBJECTION TO LEGAL
JURISDICTION
. Also, the ADDRESS TO THE COURT did refer on pages 2 and 3;

QUOTE

Part 3 Page 11

Page 11 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

The Prosecutor since then pursued another charge of “failing to vote” in regard of a purported 9
October 2004 federal election, which came before this court on 4 August 2005, and again I made
my OBJECTION TO LEGAL JURISDICTION and for this the Court directed a special
hearing
to be held on 16 November 2005. it was after the hearing that I discovered from the
registrar that in fact both cases had been before the Court albeit I am not aware that the Court on 4
August 2005 made such a ruling and discharged the 4 December 2003 Orders for this purpose.

[ 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:

- 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.

As already set out in the previous mentioned submissions, there are no FREE ELECTIONS,
when unconstitutionally police officers, fire brigade officers, soldiers and numerous others who
are putting their lives on the line are denied to stand as a candidate unless they first resign their
position. Where judges are forced to resign their judicial office to be able to stand as a candidate
in a federal election even so this is not constitutionally required.
In my view, any judicial officer with any common sense will reject any charges as being
vexatious and an abuse of the legal processes as unless and until elections are held in the manner
intended by the Framers of theConstitution and in accordance with all relevant laws then the
Court cannot in that regard enforce any election issue against those who refuse to vote.

The Hon. I.A. ISAACS: It does not prevent such a person from being elected!

As such, the holding of a seat rather then the right to be elected was the issue and only regarding a
candidate who was having a disqualification in that regard.
As they also stated;

Mr. SYMON: They would be eligible. This provision would not prevent their [start
page 999] being elected; it merely says that if elected they shall not hold the two
offices!

The Hon. S. FRASER: Men holding certainties are not likely to give up those

certainties.

Mr. SYMON: They are not asked to give them up until the other is made a

certainty!

The Hon. S. FRASER: That removes part of my objection certainly.

The Hon. R.E. O'CONNOR: They are not to come under this provision until they have
been elected and have a right to sit in the federal parliament!

The Hon. S. FRASER: They will be capable of being elected whilst holding the other

position.

Mr. SYMON: Certainly!

Again;

Part 3 Page 12

Page 12 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Mr. SYMON: They would be eligible. This provision would not prevent their [start
page 999] being elected; it merely says that if elected they shall not hold the two
offices!

A person elected does not hold the office elected for unless the person has accepted the seat in
parliament elected for. As such, there is and cannot be a conflict of any person holding an “office
of profit” to be excluded from standing as a candidate as standing as a candidate itself does not
include holding the office, as the person may be elected and then decide not to accept the seat
elected for, because the political party was not elected into government and as such the person
elected may find it undesirable then to take up the seat elected for.
A person who is a bankrupt but can have the bankruptcy period completed before required to take
up the seat in parliament would be eligible to stand as a candidate for an election as much as
anyone else is.

The Hon. R.E. O'CONNOR: They are not to come under this provision until they have
been elected and have a right to sit in the federal parliament!

This makes it absolutely clear that they cannot be “chosen” by the Governor-General to be
appointed to a seat in the parliament unless they first get rid of any disability they are under, being
it having a bankruptcy period finish, having a criminal sentence of a certain length completed,
having disposed of any “office of profit” with the Commonwealth of Australia, etc.
It is absurd to demand people to quit their job to stand for an election where they have no
certainty to be elected, where in fact the Framers of the Constitution themselves made clear;

The Hon. S. FRASER: Men holding certainties are not likely to give up those

certainties.

Mr. SYMON: They are not asked to give them up until the other is made a

certainty!

Therefore, only if a person is actually elected and desires to take up the seat elected for then and
only then is the person obligated to dispose of the disability referred to in Section 44 of the
Constitution to be able to take up the seat in Parliament.
A person entitled to vote but residing overseas as a citizen of a foreign nation as such could stand
for election and be elected but could not take up the seat elected for unless first moving back to
the Commonwealth of Australia to be a “citizen” (resident) in the Commonwealth of Australia
and no longer overseas.
While the Italian elections allow for Members of Parliament to permanently reside in a foreign
country, as occurred in the recent Italian election, this is constitutionally barred from the
Commonwealth of Australia to occur. It also means that no Member of Parliament can have any
holdings in a foreign nation that would in effect create to this Member of Parliament to be
considered by that nation’s law to be a citizen of that nation being it for taxation purposes of that
country or otherwise. Yet, many Members of Parliament may hold overseas investments which
constitutionally may disqualify them from holding a seat in the Parliament.
The same with the so called “DUAL CITIZENSHIP” where the Commonwealth of Australia
legislated as to “DUAL CITIZENSHIP” but by this meaning “DUAL NATIONALITY” . No
Member of Parliament can poses “DUAL NATIONALITY” as this would be in conflict to the
constitutional provisions of Section 44 of theConstitution.
Section 44 of theConstitution is not subject to as the parliament may otherwise provide and as
such is in an, so to say, iron cast position and nothing the Commonwealth of Australia can do as
to circumvent those Section 44 constitutional provisions.
After more then one hundred years of Federation the High Court of Australia nevertheless has
never managed to competently resolve these and many other issues and I view this much because

Part 3 Page 13

Page 13 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

those judges are not “constitutionalist” that they spend in principle years to research what the
Constitution is about, as I did, but merely are going along to whatever quick solution they may
deem suitable. TheSykes v Cleary and the Sue v Hill judgments in my view are a clear example
where the High Court of Australia failed to appropriately reflect the intentions of the Framers of
theConstitution and by this handed down judgments based on errors of constitutional law.
In my view, the fact perhaps that Heather Hill was of Pauline Hanson One Nation and Phil
Cleary
an Independent may have rather been a reason why they were ousted.
For this also anOFFICE OF THE GUARDIAN is badly needed to stop this ongoing rot and to
seek to ensure that there is, so to say, a common denominator among all judgments that judges do
not hand down judgments because they happen to fancy it because it might perhaps advance their
own person cause but rather that the general public can have a better trust in its judges that they
hand down judgment based on reality and not upon a LEGAL FICTION.
As much as Ican do the research and in my book have been able to set out in sequence what went
on during the Constitution Convention Debates and what was intended, then I view the High
Court of Australia judges likewise should have ensured to do so.
My 30 September 2003 published book set this out extensively in particularly also in CHAPTER
11
PHIL CLEARLY DISSASTER, in the document; Chapter 11A Public service.doc the entire
history resulting to section 44 of the Constitution is shown;

INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.

ISBN 0-9580569-6-X

For example other matters relating to this also, such as in the in the following Chapters;

Folder; CHAPTER 00 Set out about CITIZENSHIP
Document; Chapter 00A Set out about CITIZENSHIP.doc

Folder; CHAPTER 11 PHIL CLEARLY DISSASTER
Document; Chapter 11A Public service.doc
Document; Chapter 11E RESTRICTION FOR PUBLIC OFFICE.doc

Folder; CHAPTER 33 CONSTITUTION CONVENTIONS;
Document; 18970417@U738-831.doc
Document; 18970921@U932-1035.doc

Folder; CHAPTER 75 ADDRESS TO THE COURT
Document; Address to the court-8.doc
Document; Address to the court-9-UPDATE.doc
Document; CHAPTER 75 ADDRESS TO THE COURT.doc

Franklin Delano Roosevelt;

In politics nothing ever happens accidentally! If something occurs, you can be sure
that it had been planned this way!

As for a special hearing as to LEGAL JURISDICTION of the Court to hear and determine
certain matters, where the Defendant claims that albeit the Magistrates Court of Victoria at
Heidelberg has normal LEGAL JURISDICTION to hear and determine matters concerning
Commonwealth law, being invested also with Federal legal jurisdiction, it can however not hear
and determine matters of unconstitutional legislation and/or legislation that was not applicable at
the time of the alleged offence(s). Further, the State Court is not bound by Commonwealth law
(Commonwealth of Australia law), and neither can be dictated by Commonwealth law, as to how

Part 3 Page 14

Page 14 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

to conduct its proceedings, such as Section 388 of the Commonwealth Electoral Act 1918 which
purports to avers the right of the informant, for the Commonwealth Electoral Commission as to
evidence, which is a clear denial of the right of the Defendant under the adversary system that the
informant prove his case, failing to do so there is NO LEGAL JURISDICTION and also NO
CASE TO ANSWER
, as the lack of evidence to provide relevant evidence to prove that Section
245 of the Commonwealth Electoral Act 1918 in fact was applicable at the times of the alleged
offences then no alleged offences could be considered to have been committed, by there being no
evidence that Section 245 was at those times was applicable.

The courts legal position as to which legislation is applicable to its proceedings governing the
sought enforcement against alleged breaches of Commonwealth law is also questioned and it
is for the Prosecutor therefore to prove jurisdiction.

Because of the complex nature of the way LEGAL JURISDICTION comes about, if at all can
be invoked by any Court, including the High Court of Australia, certain basic issues need to be
addressed also.

“The House of Representatives… can make no law which will not have its full operation on
themselves and their friends, as well as the great mass of society.
This has always been deemed one of the strongest bonds by which human policy can
connect the rulers and the people together.
It creates between them that communion of interest, and sympathy of sentiments, of which
few governments have furnished examples; but without which everygovernment
degenerates into tyranny."

James Madison, (Federalist No. 57, 19 February 1788)

Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;

"A law in excess of the authority conferred by the Constitution is no law; it is wholly void
and inoperative; it confers no rights, it imposes no duties; it affords no protection.".

Some of the constitutional and other legal issues are set out below in this ADDRESS OF THE
COURT
(Not set out in any order of importance neither setting out all important issues) as to
determine if the Court can in fact invoke any legal jurisdiction, as for example the Court could
hardly deal with any alleged breach of Commonwealth law against a person who has no electoral
rights and is not entitled to vote. other issues may still be raided by me during the course of
proceedings. I ought to be clear that unless a person is an elector, the Court simply cannot even
invoke any legal jurisdiction to commence any legal proceedings in that regard either. Likewise, if
the legislation is ULTRA VIRES, as I maintain, then the Court cannot invoke legal jurisdiction
on that basis either. And even if I am deemed to be an elector various other issues are relevant to
determine if the Court can invoke legal jurisdiction, such as if the trial will be by State legislative
provisions or has it contaminated by commonwealth legislation such as to avoid
NULLIFICATION powers, etc.

What constitutes “JUDICIAL DETERMINATION”?
Which Commonwealth legislation can apply?
Can the Commonwealth dictate a State Court how it shall conduct its legal
proceedings?
Has the Defendant a right to challenge any evidence the Prosecutor relies upon to
prove his case of not voting?
Can the Prosecutor use Commonwealth legislation of averment to deny the Defendant
his legal right within state legal provisions to challenge any evidence the prosecutor
may wish to rely upon to support the charge of failing to vote?

Part 3 Page 15

Page 15 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Is the onus upon the Prosecutor to prove beyond reasonable doubt that the Defendant
failed to vote?
Has the Prosecutor the obligation to disprove BEYOND REASONABLE DOUBT
each and every excuse the Defendant may present against the charge?
Is voting confidential?
How is it establish if a person has failed to vote?
Is there any record as to when a person has voted for one House but not for the other?
Is a person entitled to vote for the Senate at any polling station, if not already having
voted by postal vote, within the State?
Is a person entitled to vote for the House of Representatives at any polling station, if
not already having voted by postal vote, within the electoral division for which the
elector is enrolled for?
Can a person vote separately for the Senate in one polling station anywhere in the
State while voting elsewhere, or postal voting, for the electoral division enrolled for,
for the House of Representatives?
What legislative provisions, if any, denies an elector to vote for the House of
Representative at one polling booth and for the Senate at another polling booth?
By what authority can the Australian Electoral Commissioner force an elector to vote
at the same visit to a polling station for both the Senate and the House of
Representatives?
By what authority can the Australian Electoral Commissioner force an elector to vote
with the same postal vote for both the Senate and the House of Representatives?
How does the Australian Electoral Commission establish beyond any doubt that a
person has not voted or has failed to vote as to invoke Section 245 of the
Commonwealth Electoral Act 1918?
Is Section 245(14) of the Commonwealth Electoral Act 1918 constitutionally valid
where it is in conflict of the constitutional prohibition for the commonwealth of
Australia to apply any religious test or practice?
Did the Australian Electoral Commission ever notify the Defendant that he was not
required to vote if he were to rely upon religious beliefs not to do so?
To what extend, if at all, are Sections 6.1, 13 of the Criminal Code Act 1995 (Cth) Act
No. 12, 1995, as amended, applicable?
Is Section 388 of the Commonwealth Electoral Act 1918 applicable?
Is compulsory voting constitutionally permissible?
Is it constitutionally permissible to use the preference of a vote for other purposes
other then to determine the election of candidates?
Is it constitutionally permissible to use the voting to financial reward a candidate?
Is it constitutionally permissible to base a persons deposit (of being a candidate) upon
the percentage of votes received?
Is it discriminatory to candidates to refund a deposit upon basis of percentage of first
preferences obtained?
Can the Court proceed with hearing the case considering the Australian Electoral
Commission already imposed a fine and extracted statements of the Defendant, and
without notifying the Defendant that such statements (information/details) can and
may be used against him in subsequent proceedings, and thereby denied the Defendant
NATURAL JUSTICE and aFAIR AND PROPER TRIAL.
Where the Registrar of the Court provided false, misleading and or deceptive material
to the Defendant, with the summons, then can it be held the Court has shown to be bias
against the Defendant?
To what extend, if any, is are the provisions of the Australian Citizenship Act 1948
ULTRA VIRES
?

Part 3 Page 16

Page 16 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

The usage of purported Commonwealth electoral rolls rather then what ought to be
used being the State electoral rolls, as electors are already (by State legislation)
qualified to vote.
Was the proclamation constitutionally and/or otherwise legally validly published?
Were the writs constitutionally and or otherwise legally valid?
What is required to invoke any Commonwealth legislation for elections to be held,
voting issues, etc?
What prior process is required to be able to issue writs for general elections?
Is the Special Gazette S421 appropriately worded to reflect being printed by the
“Government printer”?
Was the Proclamation validly published?
What is required to be able to issue writs?
What is “citizenship” (“State citizenship”, “Australian citizenship”, “Commonwealth
citizenship”) within constitutional meaning?
How does one obtain “citizenship”?
What is “citizenship” within constitutional meaning?
What is the difference between State citizenship and Commonwealth citizenship?
Who has the power to legislate regarding citizenship?
How does the Racial Discrimination Act (Cth) relate to deny any person citizenship
and so the electoral rights (Franchise)?
The twice voting, Senate and House of Representatives, versus one charge of “failing
to vote
” for each particular general election
Can the Commonwealth legislate to deny an elector to vote?
Can enrolling be made compulsory?
Can voting be made compulsory?
Who is constitutionally entitled to vote or not.
Who can be deprived of voting?
When/how can one obtain the right to vote?
Did the Framers of the Constitution (theConstitution Convention Bill 1898) that any
person not having the Australian nationality is entitled to vote?
Does one have to be an Australian national to be able to vote in Federal elections?
Can a Candidate be forced to vote for his opponents?
Is a candidate denied NATURAL JUSTICE if force to vote for his/her opponent(s)?
How do past Authorities (judgments) apply to this case where they failed to consider
the Hansard records of the Constitution Convention Debates, if at all?
What constituted the Australian Act constitutional validity within Section 51(xxxviii)
powers of the Constitution?
What is by DUE PROCESS OF LAW?
Can the court nullify commonwealth legislation?
ETC, ETC. ETC.

The mere fact that the Defendant is canvassing the LEGAL JURISDICTION of the Court
(including upon certain constitutional issues) itself ought to point out that no Court ever before
did appropriately conduct any hearing in regard of any Defendant allegedly having failed to vote.
While this may appear to be a considerable misstatement, in the end, anyone would have to come
to the conclusion this to be so. It is simply that no Court in the Commonwealth of Australia ever
canvassed what really was constitutionally appropriate. Merely, it was “assumed” to be in a
certain manner. For this, the Defendant will have to start from basics to set out matters.

END QUOTE

Again;

Part 3 Page 17

Page 17 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Did the Australian Electoral Commission ever notify the Defendant that he was
not required to vote if he were to rely upon religious beliefs not to do so?

Also at page 58

QUOTE

I have compiled this document (albeit not being conclusive, as to do so would take reams of
paper), including quotations of Joint Standing Committee on Electoral Matters hearings,
Authorities, and others as to provide as much as possible a comprehensive set out about the back
ground of matters, and why I OBJECTS TO THE LEGAL JURISDICTION of the Court,
including on constitutional grounds, for the Magistrates Court of Victoria to hear and determine
the charges against me within section 245 of the Commonwealth Electoral Act 1918.

END QUOTE

Also at page 60;

QUOTE

JSCEMtranscript 16 August 2002;
CHAIR—In terms of the electoral ombudsman, in submission No. 39 Dr Amy
McGrath recommended the appointment of an electoral ombudsman; in your
submission, No. 66, the AEC indicated it does not support that. Could you outline why
you do not support the appointment of an electoral ombudsman?

Mr Becker—Frankly, I think we have got enough policemen around the place. We have
already had our own ombudsman involved in an investigation that we referred to it,
and then they changed it to an investigation of their own motion.
We have the AFP, the
DPP, the Ombudsman, ANAO, JSC, CJC—how many bodies of this nature do we want?

Who is going to guard the guardian? How far do you go? I just think it is totally
unnecessary.

END QUOTE

At page 96

QUOTE

I have clearly OBJECTED to the legal jurisdiction of the Court to hear and determine matters
within Section 245 of the Australian Electoral Act 1918, including by this I rely upon
constitutional grounds. However, the onus is upon the Commonwealth Director of Public
Prosecutions to prove to this Court in the first place that Section 245 in fact is applicable at all.
After all, Section 245 does not apply every day of the year but can only be invoked provided a
string of conduct takes place that results to Section 245 to be applicable. It is then for me to
counter act the validity (constitutionally or otherwise) of Section 245 not to be applicable.

If Section 245, for whatever reasons, can not be held to be applicable in regard to each or
every charge, then the Court would have no legal jurisdiction to hear and determine the
charges.

It is not relevant for the purpose of exercise of jurisdiction if I do or does not admit to having
voted, as that is an issue that would only be relevant if the Court were to dismiss the
OBJECTION OF LEGAL JURISDICTION, pending of course any appeal that may follow.
Therefore, the burden to prove Section 245 is invoked must rest with the Commonwealth Director
of Public Prosecutions.

END QUOTE

What I did in fact foreshadow was the issue of religious ground, as I did refer to “Did the
Australian Electoral Commission ever notify the Defendant that he was not required to vote
if he were to rely upon religious beliefs not to do so?
” and “If Section 245, for whatever
reasons, can not be held to be applicable
”, just that I left it to the Commonwealth Director of
Public Prosecutions to work out for himself if he was going to address this issue or not and for
this was to call witnesses.

Section 245 Commonwealth Electoral Act 1918

Part 3 Page 18

Page 18 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

(14)Without limiting the circumstances that may constitute a valid and sufficient reason
for not voting, the fact that an elector believes it to be part of his or her religious duty
to abstain from voting constitutes a valid and sufficient reason for the failure of the
elector to vote.

It was not my job, so to say, to wake up the Commonwealth Director of Public Prosecution and to
advise him how to do his job. Indeed, the mere fact that I provided such extensive material by way
of ADDRESS TO THE COURT, then I did more then anyone could have expected from an
unrepresented Defendant
I expected all along that the lawyers acting for the Commonwealth Director of Public Prosecution
would be arrogant and refuse to have any kind of proper communication with me, despite that I in
fact requested this on occasions. I also expected the magistrate to be arrogant and otherwise
ignorant to what my rights were and pretend to have read the ADDRESS TO THE COURT but
likely if not all then generally ignore it.
I had no doubt that if I was to come before a competent judicial officer then my OBJECTION
TO LEGAL JURISDICTION
would be upheld, however I also contemplated that if the judicial
officer was to, so to say, play along with the Commonwealth director of Public Prosecutions then
the judicial officer would place his//her own competence in question in light what was stated in
theADDRESS TO THE COURT.
The issue was not for the judicial officer (in this case the magistrate on 16 and 17 November 2005
to specifically declare Mr. John Howard not to be elected, but rather that he was to declare that in
view of the evidence before the Court there was no valid proclamation published on 8 October
2001 and there were no valid writs issued on 8 October 2001 and as such there was no valid
election held for either of the Houses of Parliament. Likewise so in regard of the purported 2004
federal election. The fact that this would amount to not a single Member of Parliament having
been duly and properly elected according to constitutional and other relevant legal provisions, was
elected and the Commonwealth of Australia became a de facto DICTATORSHIP, a BANANA
REPUBLIC
is something that should not be of concern to the judicial officer as being a
consequence as to prevent JUSTICE to be provided to me to declare the law as it is.

As was made clear about publications of Proclamations governed by the Constitution, such as in
Section 32 of theConstitution;

Hansard28-1-1898 Constitution Convention Debates

Mr. BARTON.-
If we make it read that it shall take place on the date of the proclamation by the Governor-
General it will only take place when the Governor-General will take that action by
publishing a proclamation.
Then it would follow the action of the Commonwealth.

Again; will take that action by publishing a proclamation

It shows; “Then it would follow the action of the Commonwealth”!

This is embedded in the Constitution and the Commonwealth of Australia, so the federal
parliament has no constitutional powers to interfere with this section what so ever.
Hence, where there was no proclamation published on 8 October 2001 then the Parliament was
never prorogued and the House of Representatives was never dissolved when it was
ASSUMED” it had been.
As set out below there is no proper system governing procedures involved to set in train an
election process and to supervise this to occur in a proper manner, and hence the Australian
electoral commissioner being both in supervisionary capacity and conducting the election has a

Part 3 Page 19

Page 19 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

conflict of interest and as it appears to me willing to abuse the legal processes to ensure his
unconstitutional and illegal elections will prevail.

As I expected that no judge, so to say, would stick his neck out to stand up for JUSTICE, where
this might perhaps jeopardize his future career prospects, then I expected, and experienced at
every turn of events to be obstructed by the judiciary also and Rules and regulations of the Court
to be abused and misused to railroad whatever application I might pursue before the Courts.
Hence, I expected that the Australian Electoral Commission then would pursue me for failing to
vote and then he would in fact provide me with the vehicle he otherwise prevented as to place my
numerous objections before the Courts.
My concern was to give a lot of details but somehow avoid that it is too open and that I do not, so
to say, awake sleeping dogs. Hence, while raising religion as an issue I sought not to make it too
obvious as it was not my obligation to do so.
After all, I am not bound to give any explanation at all unless for the OBJECTION TO LEGAL
JURISDICTION
was appropriately disposed of, as I was entitled to. Also, as the magistrate on 4
August 2005 directed that if the OBJECTION OF LEGAL JURISDICTION were to fail then
and only then was the Commonwealth Director of Public Prosecutions required to provide all
relevant evidence he desired to rely upon in support of the charge so that I could prepare my case
against the charges.

However, on 17 November 2005, even so I made this known to the presiding magistrate an
adjournment for this was refused and no material was provided to me after the magistrate
overruled the OBJECTION TO LEGAL JURISDICTION by refusing to deal with parts of the
OBJECTION TO LEGAL JURISDICTION, and other then some minimal documentation
provided prior to the hearing commencing on 16 November 2005 of the OBJECTION TO
LEGAL JURISDICTION
, no documents of any nature were provided to me, after the
OBJECTION TO LEGAL JURISDICTION matters was deemed completed by the presiding
magistrate who them immediately commenced with hearing the matters about charges, even while
I stood at the Bar table, as he seemed to be in such a hurry not even following proper protocol that
an unrepresented Defendant must step aside from the Bar table to be made aware of the charge
and to be asked for his/her plea.

Therefore, there was neither any time to prepare my defence and to highlight other issues in
further details. Therefore, the Commonwealth Director of Public Prosecutions can only blame
himself for having rushed through the case and by this robbing himself of the opportunity to
discover what really the case was about. While this might be the common practice to
unrepresented Defendants to deny them a FAIR and PROPER trial, in my case it was FATAL to
the case of the Commonwealth Director of Public Prosecutions, as while he scored a conviction is
was a hollow victory, so to say, as it wasn’t worth the paper it was written on. It might be the
conduct of the Commonwealth Director of Public Prosecutions to, so to say, burn unrepresented
Defendants in such manner and get away with it time and again but in this case the conviction is
without legal force, as set out further in thisADDRESS TO THE COURT also.
After all, one the magistrate on 4 December 2002 adjourned the charge in regard of the 2001
alleged “failing to vote” for the matter to be dealt with in regard of OBJECTION TO LEGAL
JURISDICTION
, then no magistrate had the legal power to simply still proceed with the charge
and ignore the outstanding order! And as the second charge regarding the purported 2004 election
relied also upon the issues raised in the 2001 case, the magistrate himself made known about on
17 November 2005, then neither was then a legal jurisdiction to deal with this matter with the 4
December 2002 orders still being on foot.
Therefore, the magistrate on 17 November 2005 overruling my OBJECTION TO LEGAL
JURISDICTION
was of no legal value as he had no such legal powers to ignore the 4 December
2002 orders.

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Page 20 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
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While there appear to have been celebrations of 10 years of Howard government and Mr. John
Howard being 10 year Prime Minister, the legal reality is that because of my OBJECTION TO
LEGAL JURISDICTION
that was subject to the orders of 4 December 2002 challenging the
validity of the 2001 federal election then as the Framers of the Constitution made clear, the
provisions wereULTRA VIRES. Hence, the purported election was ULTRA VIRES and by this
its results.

While the Commonwealth Director of Public Prosecutions seems to have spend a lot of effort to
pursue me for allegedly “failing to vote” he did not at all do so upon my complaints to him about
the invalid elections, the conduct of Mr. John Howard (and his fellow Members of Parliament
involved in the matter) to unconstitutionally and illegally authorised a murderous invasion into
another sovereign nation that may constitute TREACHERY within the meaning of section 24
AA of the Crimes Act Cth) neither did the Australian Federal Police bother to act upon my
official complaint. As such, it appears to me that the Commonwealth Director of Public
Prosecutions is not the least interested to uphold the law irrespective of the position of the person
but rather seems to be a political football for the Government and not bothering to deal with real
serious offences.

As I have stated in the past Osama bin Laden does not need any terrorism tactics to be used to
gain control of the Commonwealth of Australia, as simply all he need is some competent lawyers
to show there is no validly elected Government and so basically it is as in 1788 when British
Rules was established, now anyone can take control and install his/her authority.

Hansard9-3-1898 Constitution Convention Debates

Sir JOHN DOWNER.-I know that my right honorable friend, judging probably from the
time I am taking now, thinks that in such a case I would take a long time, if I were in the
Senate. I admit that his surmise is quite right in my case. I admit there are persons on whom
this terrorism could not be practised, or on whom, if practised, it would probably not be
effective. But I am thinking of persons of weaker minds and wills, and I say that, as far as
this Constitution is concerned, it is absolutely necessary to put some provision in this Bill
which will strengthen the Senate and prevent it being intimidated in the way indicated. We
have been frittering away the first principles of the Federal Constitution long enough.

The only time the Framers of the Constitution referred to “terrorism” was when it referred to the
government of the day preventing the Senate sufficient time to debate bills.

We all know are well aware that this is precisely of late occurring, where the Senate has bills
rushed through which denies proper debate.
It is this kind of “terrorism” that also results to unconstitutional legislation being enacted.

It are the Courts therefore that must act as GUARDIANS and do not tolerate to be part of such
form of terrorism upon the general public and rather then to go along convicting me will take the
opportunity to fulfil the oath of office and ensure JUSTICE PREVAIL!
Going along with whatever is done wrong as to seeking to avoid, so to say, to rock the boat, by
not wanting to upset a certain government, in my view, is alike sedition.
Judicial officers are appointed to act on behalf of the general public and to ensure that the
democracy is and remain alive. There fore to ignore abuses of power and to go along with it
would be to undermine the very foundation of society that is based upon a proper law
enforcement, even against the rich and the powerful. This, as no one should be deemed to be
above the Constitution. Indeed, the Framers of the Constitution made clear that not even the High
Court of Australia was above the Constitution but could only decided cases within the powers
provided for within theConstitution.

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I might not be particularly popular by High Court of Australia judges for stating this, but that is
the least of my concerns, as after all if people have to be afraid for speaking out and wanting to
have constitutional rights embedded in the Constitution protected, then why have a Constitution
at all I may ask!

As much as Members of Parliament are entitled to refuse to vote, refuse to attend to a voting then
I view the same applies to any (deemed) elector. So often Members of Parliament “abstain” from
voting and I take the position that if legal representatives can do so then their constituents have
the same right, regardless of what Section 245 of the Commonwealth Electoral Act 1918
otherwise may indicate. One cannot have that the voting system for politicians is one system and
that the constituents have another system. The very POLITICAL LIBERTY enshrined in the
Constitution is that a person has the right to vote but cannot be forced to vote, and certainly not
when it involves warmongering candidates who may by the preference vote obtain votes of those
who oppose warmongering and the cold blooded murder of innocent people in another “friendly”
sovereign nation.

I challenge also the validity of the Application of this Section 388 of the Commonwealth
Electoral Act 1918
in a State Court as it conflicts with the judicial processes of a State Court, as
further setout in this ADDRESS TO THE COURT, in any event, the averment rule does provide
for “in the absence of evidence to the contrary” and where therefore I have overwhelmingly
contested the validity of the election process and indeed the proclamation, writs, etc, then in that
regard the averment rule can no longer be applied in any event. After all, the evidence is and has
been all along that I do not have “State citizenship” and so neither “Australian citizenship” and by
this I am not obligated to vote and as such the averment rule does not come in play for this either.
If there was no proper process to hold any election then the averment rule for this also does not
come into play.
While the magistrate relied upon the averment rule that the Commonwealth Director of Public
Prosecution did not have to prove jurisdiction this is not what the averment rule is about.

the averments of the prosecutor contained in the
information or complaint shall be deemed to be proved in the
absence of evidence to the contrary.

Therefore, where there is contrary evidence before the Court that the Proclamation and writs were
defective then there is clearly evidence to the contrary that there was no valid election being held.
To me it appeared that the magistrate being well aware that the Commonwealth Director of Public
Prosecutions has failed to prove his case, such as citizenship, etc, then simply elected to disregard
addressing those issues, even so for purpose of the OBJECTION TO LEGAL JURISDICTION
the Court could not do so.

For the record, the State of Victoria has specifically legislated for the averment of evidence to
prove matters alleged in regard of off-shore explorations but not in regard of other matters and as
such Section 388 of the Commonwealth Electoral Act 1918 of averment is in conflict with State
legislative provisions and cannot be applied by any State Court exercising federal jurisdiction,
this, as the State Court legal procedures cannot be interfered with by Commonwealth legislation,
as the Delegates of the Constitution Convention in the creation of the constitution made clear
when setting out what “Due process of law” was meaning, as well as in regard of appeals. It was
for this also that the magistrate on 4-8-2005 ordered the Commonwealth of Director of Public
Prosecutions to provide all relevant material to the Defendant (to me) subsequently to the Court
were to find that the Court had legal jurisdiction! Neither party appealed that decision, and as such
the magistrate having ruled Section 388 of the Commonwealth Electoral Act 1918 not being
applicable as such by this then this decision remains on foot. Likewise so, that the magistrate of
the Magistrates Court of Victoria at Heidelberg on 4 December 2002 on submission of the

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Commonwealth Director of Public Prosecutions directed the matters to be adjourned pending the
constitutional issues to be determined by the High Court of Australia. (See; Judiciary Act 1903
(Cth) Part VII—Removal of causes, 40 Removal by order of the High Court) Neither party
appealed this decision! As such, the onus rest upon the Commonwealth Director of Public
Prosecutions to prove jurisdiction which was all along opposed by me. the failure by the
Commonwealth Director of Public Prosecutions to obtain a ruling its favour cannot be
circumvented by a subsequent judicial officer (magistrate and or judge) to ignore this outstanding
order! I am entitled as a Defendant to the benefits of the orders obtained, this however so far was
denied.

"Although there formerly was a conflict of authority with respect to the proof of jurisdiction or the
lack of jurisdiction, the Supreme Court has declared that one who claims that the power of the
court should be exercised in one's behalf must carry throughout the litigation the burden of
showing that he or she is properly in court. Accordingly, if a party's allegations of
jurisdictional facts are challenged by an adversary in any appropriate manner, he or she
must support them by competent proof
, and, even where they are not so challenged, the court
may still insist that the jurisdictional facts be established or the case be dismissed, and for that
purpose the court may demand that the party alleging jurisdiction justify his or her allegations by
a preponderance of evidence. However, it is not mandatory upon the court to call upon the party
asserting jurisdiction to establish it by proof, in the event that the party's jurisdictional averments
are not properly challenged by the adversary, and, in such a case, application may be made of the
rule that proof in support of jurisdictional averments need not be offered where the
defendant does not formally plead to [challenge] the jurisdiction.
"§ 2.455, Federal Procedure

Due to what I perceived to be a gross miscarriage of JUSTICE that resulted to a conviction
appealed against and which case is now DE NOVO before this Court, nevertheless to avoid
simular if not the same and other errors in law to occur I have done some research in these matters
and present some critical details. The magistrate even failing to hand down a “Reason of
judgment
” as to upon what basis the conviction was made.

The carriage of proving JURISDICTION clearly lies with the Commonwealth Director of Public
Prosecutions and if for example the Commonwealth Director of Public Prosecutions fails to prove
that Section 245 of the Commonwealth Electoral Act 1918 is in any way at all not legally
enforceable then the Court cannot proceed on hearing the matter upon its MERITS, as there is
thenNO CASE TO ANSWER.
The court simply cannot entertain some charge that in regard of which it cannot invoke legal
jurisdiction. It is not sufficient to prove that the Court has federal jurisdiction but that the alleged
offence can invoke federal jurisdiction for the Court to entertain any hearing as to the alleged
offence.
For example, a court may have powers to deal with damages against another driver, however if
the Driver suing the other driver has no legal status to be able to sue, being it having been declare
bankrupt or otherwise not being the owner or being authorise to sue on behalf of the true owner
then the Court cannot entertain the matter for judicial determination against the other driver.
The Court in such a case could not simply ignore the objection by the driver being sued that the
other driver has no legal position to sue as the Court can only invoke jurisdiction upon what is
relevant to invoke such jurisdiction.
In the previous hearing before the magistrates Court of Victoria the magistrate on 17 November
2005 elected not to deal with certain issues relevant as for the Court to decide if it could invoke
legal jurisdiction and as such never could therefore have invoked legal jurisdiction where I had
OBJECTED TO THE LEGAL JURISDICTION of the Court from onset. A Court can only
invoke jurisdiction if it has competently discharged each and every element of the OBJECTION
OF LEGAL JURISDICTION
, and failure to even dismiss any part of the objection prevent the
Court to invoke legal jurisdiction.

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The carriage of proving LEGAL JURISDICTION and that the Court can “INVOKE LEGAL
JURISDICTION
is upon the Director of Public Prosecutions who pursues the charges before the
Court. I (The defendant) have to do no more but to make objections.
A proper examination and consideration of what has stated in this document, aided by the material
already further on Court file, I view, there is absolutely no way this Court could possibly invoke
jurisdiction in regard of enforcement of Section 245 of the Commonwealth Electoral Act 1918
against me, but this is for the Commonwealth Director of Public Prosecutions to attempt to prove
otherwise.

JURISDICTION;

Lack of sufficient availability (to me) of case law and other Authorities in regard of certain issues
I have also relied upon American Authorities, such authorities can be used in aid of any deficient
Authorities existing in Australian legal matters.

Held by the Supreme Court of New South Wales where it was alleged that an offence was against
a law of the Commonwealth and that therefore a conviction under the law of a State was bad.R v.
Gates; Ex parte Maling, (1928) 41 C.L.R. 519; 2 A.L.J. 330
.

The Court order issued by the Magistrates Court of Victoria issued a conviction not only to a 1st

of
January 2005 purported election, that never existed, but issued it as the Magistrate Court of
Victoria at Heidelberg even no such Court actually heard and determined this matter. This, as the
Magistrates Court of Victoria is a State Court that cannot hear and determine federal matters.
What is however is that the Magistrates Court of Victoria at Heidelberg “exercising federal
jurisdiction
” heard and determined the case (rightly or wrongly) and as such its orders should
have refected that it was the “Magistrates Court of Victoria exercising federal jurisdiction”!
See also Section 39 Judiciary Act 1903-1950

This, as the orders are a federally enforceable order and applicable throughout the
Commonwealth, where as for example a person committed for a crime, such as burglary, in the
Magistrate of Victoria, if committing a simular crime in another state, say Queensland, and then
later is convicted in that State for a simular crime or other crime has no “prior conviction” where
as if the conviction had been in the State of Victoria for the later offence then a “prior conviction”
would be applicable for sentencing purposes. Likewise a person obtaining a traffic violation under
the laws of one State does not have this used as a prior conviction if convicted in another State of
subsequent traffic offences. Therefore, it is essential that it is established that the Court dealing
with the matter is a Federal court, a State Court or a State Court exercising federal jurisdiction.
That there are difference in this is also made clear by some of the following authorities;

The High Court of Australia held that where a party pleads the non-application of a State Act
because of Commonwealth legislation then the State Court is exercising Federal jurisdiction. Troy
v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66
.

Held by the High Court of Australia that the expression “Court or judge of a State” does not
include a Judge sitting in Chambers exercising the jurisdiction of the Supreme Court. Wilcox v
Donohoe, (1905) 3 C.L.R. 83; 12 A.L.R. 54
.

Held by the High Court of Australia that the federal jurisdiction which is conferred on a State
Court by the section is subject to any limitations imposed by the laws of the State upon its state
jurisdiction, unless otherwise expressly declared. Federated Saw-mill Timberyard and General
Woodworkers Employees Association v Alexander, (1912) 15 C.L.R. 308; 19 A.L.R. 22
.

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Held by the Full Court of the Supreme Court of Queensland that the police magistrate exercising
Federal jurisdiction is not an officer of a Federal Court within the meaning of this paragraph
(Section 39 of the Judicial Act 1903) R. v. Archdall and Others; Ex parte Taylor, 1919 St. R. Qld
207; 13 Q.J.P.R. 22 C.L.R. 437 in which the High Court (Isaacs, Higgins, Gavan Duffy and Ricch
JJ ; Griffith CJ and Barton J dissenting) held that a Judge of an inferior Court of a State invested
with and purporting to exercise Federal jurisdiction is not an officer of the Commonwealth within
the meaning of s. 75 (v) of the Constitution.

Held by the High Court of Australia that a State Court, the appellated jurisdiction of which is
limited by a State Act, has no federal appellated jurisdiction beyond those limits. R. v. Whitfield
and Others’ Ex parte Quon Tat, (1013) 15 C. L.R. 689; 19 A.L.R. 97

Held by the High Court of Australia that under this section the Courts of the several States have
federal appellated jurisdiction, as regard the matters enumerated in ss75 and 76 of the
Constitution, to the same extent that, and subject to the same conditions as, under the State laws
they have appellated jurisdiction in matters to which State laws apply. Ah Yick v Lehmert, (1905)
2 C.L.R. 593; 11 A.L.R. 306

Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act
1903 the Attorney-General for the Commonwealth or a State may apply for the removal into the
High Court of a cause or part of a cause whether or not he is a party to the proceedings in which
the cause arises, and if the cause really and substantially arises under the Constitution or involves
its interpretation, the court MUST grant the removal as of right notwithstanding that the matter is
apparently concluded by authority. Any distinct and divisible question may be “part” of such a
cause within the meaning of this section. In re an Application by the Public Service Association
of N.S.W. , (1947) 75 C.L.R. 430

The fact that the magistrate on 4 December 2002 made orders upon the submission of the
Commonwealth Director of Public Prosecution that the matter was to be dealt with by the High
Court of Australia as to determine constitutional issues, and the Commonwealth Director of
Public Prosecutions failed to do so, who had the onus to prove the jurisdiction that I opposed from
onset, then the orders of the Magistrate on 16 and 17 November 2005 were ULTRA VIRES as
they were held in error of law (in defiance) where I (the Defendant) was denied the benefits of
outstanding Court determinations in the same matters.

Per Evatt J. ; Each question as to the limits inter se is involved where State Legislature is
challenged on the grounds that it contravenes s. 90 of the Constitution. Hopper v Egg and Egg
Pulp Marketing Board (Vic), (1939) 61 C.L.R. 665, at p 681; A.L.R. 249, at p 255

Per Evatt J.; Each question of the validity of the Commonwealth legislation in s51 of the
Constitution (and a fortiori in s. 52) necessarily raised a question as to the limits of
Commonwealth and State powers. Ibid at p. 682 C.L.R. and p 255 A.L.R.

Held that a State Court exercising federal jurisdiction when it erroneously applies Commonwealth
Act to subject matter before the Court. Commonwealth v Cole, (1923) 32 C.L.R. 602 and
Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85

Judiciary Act 1903 (Cth)

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39 Federal jurisdiction of State Courts in other matters

(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court
of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of
the States, except as provided in this section.

(2) The several Courts of the States shall within the limits of their several jurisdictions, whether
such limits are as to locality, subject-matter, or otherwise, be invested with federal
jurisdiction, in all matters in which the High Court has original jurisdiction or in which
original jurisdiction can be conferred upon it, except as provided in section 38, and subject to
the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not
be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

Special leave to appeal from decisions of State Courts though State law prohibits appeal

(c) The High Court may grant special leave to appeal to the High Court from any decision
of any Court or Judge of a State notwithstanding that the law of the State may prohibit
any appeal from such Court or Judge.

Exercise of federal jurisdiction by State Courts of summary jurisdiction

(d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be
judicially exercised except by a Stipendiary or Police or Special Magistrate, or some
Magistrate of the State who is specially authorized by the Governor-General to exercise
such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of
that Court is conferred by a prescribed law of the State, within the limits of the
jurisdiction so conferred.

39A Federal jurisdiction invested in State Courts by other provisions

(1) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether
the investing occurred or occurs before or after the commencement of this section, including
federal jurisdiction invested by a provision of this Act other than the last preceding section:
(a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2)
of the last preceding section; and
(b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d) of that
subsection (whether or not it is expressed to be invested subject to both or either of those
provisions), so far as they are capable of application and are not inconsistent with a
provision made by or under the Act by or under which the jurisdiction is invested;
in addition to any other conditions or restrictions subject to which the jurisdiction is expressed
to be invested.

(2) Nothing in this section or the last preceding section, or in any Act passed before the
commencement of this section, shall be taken to prejudice the application of any of sections
72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences.

From the above it already ought to be clear that a State Court, subject to certain provisions, can
exercise Federal jurisdiction.
While the authorities below are USA Authorities, the legal concepts nevertheless are of a general
nature that can be applied within the Commonwealth of Australia.

JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power
may be established and described with reference to particular subjects or to parties who fall
into a particular category. In addition to the power to adjudicate, a valid exercise of
jurisdiction requires fair noticeand an opportunity for the affected parties to be heard.
Without jurisdiction, a court's judgment is void. A court must have both SUBJECT

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MATTER JURISDICTION and PERSONAL JURISDICTION (see below). See also
territorial jurisdiction; title jurisdiction."

SUBJECT MATTER JURISDICTION refers to the competency of the court to hear
and determine a particular category of cases. Federal district courts have "limited"
jurisdiction in that they have only such jurisdiction as is explicitly conferred by federal
statutes. 28 U.S.C. §1330 [EDITOR'S NOTE: see also 40 U.S.C.S. §255] et seq. See
LIMITED [SPECIAL] JURISDICTION. Many state trial courts have "general"
jurisdiction to hear almost all matters. The parties to a lawsuit may not waive a
requirement of subject matter jurisdiction.

TERRITORIAL JURISDICTION the territory over which a government or a
subdivision thereof has jurisdiction, 147 P.2d 858, 861; relates to a tribunal's power
with regard to the territory within which it is to be exercised, and connotes power over
property and persons within such territory. 94 N.E. 2d 438, 440.

TERRITORIAL COURT a court established by Congress under Art. IV, Sec. 3, Cl. 2
of the Constitution, which gives Congress the power to make "all needful rules and
regulations respecting the territory or other property belonging to the United States."
370 U.S. 530, 543; 371 F.2d 79, 81.Above definitions from: Barron's Law Dictionary,
Fourth Edition.

Barton J, the parliament cannot give the word a meaning
not warranted by s73 of the Constitution.

Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.

The State Court is acting under normal legal procedures applicable to State Court rules and the
Commonwealth of Australia has no constitutional powers to interfere with this. It can only
provide legislation regarding certain matters provided they do not seek to interfere with the State
Courts legal procedures. Section 388 of the Commonwealth Electoral Act 1918 is clearly
unconstitutional, and so ULTRA VIRES, as it pursues a State Court to deny a Defendant of his
rights to have all relevant material placed before the Court to enable the Defendant to verify its
accuratesy.

Because the State of Victoria specifically legislated in regard of Sea exploration that there is an
averment of evidence, then clearly it underlines that without such legislation it cannot be done.

More over, the State of Victoria abolished the right of making an unsworn Statement by the
accused because the Parliament held that proceedings should be equal to both parties, and not that
the accused can cross examine the prosecutors witnesses at length and then himself avoid being
cross examined by making a unsworn statement. For this, the right of making an unsworn
statement was abolished. Hence, it would therefore be a denial of JUSTICE, if now the
Prosecutor could make allegations without needing to prove anything by using the averment rule.
It would, so to say, tip the balance of the scales over to be in favour of the prosecution and defies
what the Parliament of Victoria intended, as was stated in the Hansard records of their Debates.

While the matter is DE NOVO, it is essential that to avoid a
repeat of the judicial errors as occurred resulting to the
convictions, certain matters are even more canvassed then
previously explored.

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The magistrate in my OBJECTION TO LEGAL JURISDICTION refused to determine the
issue of “citizenship” and by his refusal failed to invoke any jurisdiction. This, as the magistrate
can only invoke jurisdiction having appropriately disposed of each and every element of the
objection and not ignore elements that cannot be overruled.

Mens rea

The Court, even if it were to decide that it can invoke legal jurisdiction, it then nevertheless would
in my view have extreme difficulties to try to convict me where I did everything reasonably
possible to seek to avoid this current problems. Few defendants, in particularly unrepresented
defendants, may ever pursue as an extensive research as to what is constitutionally and otherwise
legally applicable as I have to place my response before the Courts. The Court therefore would be
faced to assess if the alleged failure (if it were to conclude this had occurred- not that I seek to
indicate the Court may do so) was actually caused by the frustration caused by the Australian
Electoral Commission and tits legal representatives and others beyond the control of the
Defendant or that this case is one where there was ongoing a blatant disregard by the Defendant to
make any attempt whatsoever to comply with what is alleged legal requirements. The horrific
history of this case only could indicate that I did pursue numerous way to seek to avoid any kind
of conflicts but basically all I achieved was for the Australian Electoral Commission to create
some kind of OBSTACLE COURSE as to make it extreme difficult to get any appropriate
response to resolve matters in dispute.
The Court being a State Court exercising (if it concludes it can invoke legal jurisdiction) also has
to consider then that I have no prior criminal record and by the applicable State Sentencing laws
any purported first offence should not result in a maximum $50.00 fine in any event. A State
Court, regardless of exercising Federal jurisdiction, is bound by State Sentencing laws and cannot
have its legal processes interfered with by the Commonwealth of Australia in that regard.
For example, if the State Court of Victoria was to be granted jurisdiction of another foreign nation
to trial certain persons of breaches of law of that foreign nation then the State Court still is guided
by State Victorian sentencing laws and could not, so to say, impose a death sentence regardless if
the foreign nation itself would have legislation on foot for the death Sentence to be imposed if a
guilty verdict was obtained.
In regard of the Commonwealth of Australia enforcement of laws the Court would be entitled to
NULLIFY the law and refuse to convict, regardless if it was proven that I was to be deemed to
have been in breach of Commonwealth law, where the Court holds it to be unreasonable in the
circumstances to record a conviction, in the circumstances prevailing before the Court!

Hansard 31-1-1898 Constitution Convention Debates

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 offence 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 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 conflict with the criminal law of the
Commonwealth; in any other cases there would be no necessity to change the venue,

Part 3 Page 28

Page 28 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

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
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 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 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.

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 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".

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 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".

NO CASE TO ANSWER

&

THE ISSUE OF “REASONS OF JUDGMENT”

Where the Defendant submitted for the Court on 17-11-2005 to reserve judgment, as to enable the
magistrate to appropriately consider the content of the ADDRESS TO THE COURT, then
should the Magistrate have done so, in view that the Defendant being unrepresented could not
cross-examine himself and the magistrate himself failed to ask questions of the Defendant that
ordinary would be asked by a Defendants counsel, if the Defendant had been legally represented.
By this, the Magistrate as a judicial officer having to balance the hearing as to give the Defendant
a reasonable fair and proper hearing without seeking to be bias or conduct the case as if he was

Part 3 Page 29

Page 29 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

the counsel for the Defendant. And should therefore at the very least have given proper
consideration to the extensive material that was stated in the ADDRESS TO THE COURT.
There was NO CASE TO ANSWER, as I submitted to the magistrate, and no formal judgment
was handed down as to set out upon what ground the magistrate did not accept there was NO
CASE TO ANSWER
.

In the Marriage of Tennant (1980) 5 FLR 777 at 780 (GS17)
"As no grounds for appeal are required to be specified in the notice of Appeal, which, on
filing institutes the appeal(reg 122), there is no limitations of the scope of the appeal and all
findings of fact and law made in the lower court in relation to the decree appealed are in
challengeand cannotbe reliedon by the appellantor the respondent. All the issues(unlessby
consent) must be reheard.This of course brings me to the point of the absence of reason for
the magistrates decision in this case. Perhaps reasons were given orally but not recorded for
the record. Apart from the requirement of such reason for the purpose of the appeal process,
there is the basic ground of criticism that litigants who go to court, put their witnesses up,
arguetheircaseand attemptto controvert the opposingcaseare entitledto know,if theylose,
why they lost. If they are given no reason they may be entitledto feel the decision against
them was conceived in prejudice, bias, or caprice
. In such a case not only the litigant, but
justiceitself,is theloser.

Magistrates should realise, even more than they seem to do, that this class of business is not
mere ordinary trivial work, and they should deal with these cases with a due sense of
responsibility which administrations of the summary jurisdiction Act and the far reaching
consequences of the orders that they make thereafter entail. [Baker v Baker (1906)95 LT
549; In Robinsonv Robinson(1898) p135; and again in Cobb v Cobb (1900) p145] it was
statedthatwhenmakingordersof thiskind,fromwhichliesan appealto othercourts,it is the
duty of the magistrate not only to cause a note to be made of the evidence, and of his
decision, but to give the reasons for his decision and to cause a note to be made of his
reasons... Elaboratejudgements are not required, but the reasonswhichlead the magistrate to
makehis ordermustbe explicitlystated.”

A Defendant is entitled to make a submission of NO CASE TO ANSWER as any time prior to
commencing his defence against the charge(s). While customary a Defendant would await the
conclusion of the Prosecutors case before making a claim of NO CASE TO ANSWER there is
however no specific rule that a Defendant cannot do so from onset. What it does however is that a
Defendant who may from onset make a claim NO CASE TO ANSWER then may wake of the
prosecutor that he better present all relevant evidence, something the Prosecutor may have omitted
to do if not made aware of the NO CASE TO ANSWER claim until after the Prosecutor has
completed his/her case.
Once a Defendant makes a please ofNO CASE TO ANSWER, then the Judicial officer is bound,
at the conclusion of the Prosecutors case, to make a legal determination, and state his reasons, if
there indeed isNO CASE TO ANSWER or if in his/her view there is a case to answer.
In the trial before the Magistrates Court of Victoria at Heidelberg the Commonwealth Director of
Public Prosecutions at no stage did present any evidence that I had not exercised any postal voting
in regard of either charge and neither could bother to cross examine me about this, when
presented the opportunity to cross examine me about the charge of failing to vote in each election.
As such, the Commonwealth Director of Public Prosecutions clearly had failed to establish a case
that the magistrate could invoke jurisdiction and also neither had presented sufficient evidence to
show that I had not exercised my right to vote.
It is not relevant what evidence I gave after I commenced my defence as for a claim of NO CASE
TO ANSWER
The Court is duty bound to ascertain if the Commonwealth director of Public
Prosecution had placed a case before the Court that proved beyond any doubt that I had not voted.

Part 3 Page 30

Page 30 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

The Section 388 of the Commonwealth Electoral Act 1918 averment rule clear had not been
accepted by the previous magistrate as to be applicable and as such the Commonwealth Director
of Public Prosecution was legally bound to comply with this ruling.
Therefore the failure of the director of Public Prosecution to present all relevant evidence,
including any evidence the Director of Public Prosecution sought to rely upon to prove that I had
not voted in whatever way that is provided for, must be deemed to have been fatal to the
Prosecutors case and the Magistrate was therefore bound to have upheld my claim that there was
NO CASE TO ANSWER.

For these proceedings again, I make the claim that there is NO CASE TO ANSWER and the
Commonwealth Director of Public Prosecution as such better get his act together, so to say, as to
ensure that all relevant evidence relied upon is not only presented to the Court but that I have
advanced notification, as was directed by the magistrate on 4 August 2005, of any evidence the
Commonwealth Director of Public Prosecution intend to rely upon. Not that the Commonwealth
director of Public Prosecutions as some kind of steam roller conduct seeks to drop a bundle onto
the Court at the hearing and by this prevent me any opportunity to prepare my case against any
such evidence.

Judgment to dismiss OBJECTION TO LEGAL JURISDICTION not audible to the Defendant,
and by this denied the Defendant a FAIR AND PROPER TRIAL, also because the Defendant
had no way knowing in the subsequent trial what was or was not applicable. The judicial officer
(Magistrate) had an onus to provide the Defendant with all relevant reasons of judgment to enable
the Defendant to prepare his defence. As the Defendant had made known to the magistrate to have
a 25% hearing loss, the onus was upon the magistrate to ensure his judgment was handed down in
an audible (for the Defendant) manner.
No reason of judgment had been handed down at all in regard of the submission NO CASE TO
ANSWER
, and neither also in regard of the convictions, even so requested for by the defendant.

Abolition of the right to make an unsworn statement versus averment

On 17-11-2005 the absurdity occurred that the Defendant was convicted of FAILING TO VOTE
in a 1-1-2005 Federal election (notably a public holiday, New Years Day) even so no election
then took place. This came about where the judicial officer assumed that an election had been held
that day, by using the averment rule, unconstitutionally, and by this robbing the Defendant of his
right to challenge any evidence.

Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-
"We recognise that each party is entitled to a Fair and Proper trial and to an
adequate opportunity to adduce relevant evidence and to test the quality and veracity
of the evidence adduced by the other party.
"

The Hansard transcript makes it clear, that at the time of Federation under British law the right of
an “unsworn statement” was law, and as such part of Federation. Hence I view the State Court
exercising Federal jurisdiction must allow for this right to make an unsworn statement as it is
embedded in the Constitution where it was part of legal proceedings all along.
What therefore needs to be looked at is if proceedings conducted in a State Court are conducted
under State legal processes under State law or are dictated by commonwealth provisions. If
Section 388 averment rule of the Commonwealth Electoral Act 1918 was to be applied then it
would be absurd that the right to make an “unsworn statement” would not be provided for.
However, my position is that as I had submitted in my ADDRESS TO THE COURT, that the
Commonwealth is constitutionally prohibited to interfere with the conduct of a State court, and as
such a State Court is entitled to conduct its legal processes according to state legislative

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Page 31 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

provisions, and so cannot apply Section 388 rule of averment. It would be unconstitutional to do
so.

More over the reproduced parts of the Hansard transcripts indicate that the abolition of
“unsworn Statements” was because of seeking to make litigation, so to say, a level playing
field for both the Prosecutor and the Defendant
. To then introduce the averment rule robbing
the Defendant of any ability to cross examine the Prosecutors witnesses on critical evidence flies
in the face of the very intention of the Parliament why it pursued to abolish “unsworn statements”!

Hansard 16-3-1993 Legislative Council

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=24&origqu
ery=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+contai
ns+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+and Hon. B. T. PULLEN
(Melbourne) --

The Minister also admitted that unsworn testimony was introduced to protect the
disadvantaged at a time when accused persons were often not represented and were
not allowed to give sworn evidence.

The opposition believes that, although most accused persons are represented, many
of them remain disadvantaged, which is why the provision should not be abolished.
The opposition believes the right to give unsworn evidence is a fundamental part of
our system of justice. Although the system can sometimes be criticised, it is still
based on the presumption of the innocence of the accused. The Crown must prove
that an accused person is guilty beyond reasonable doubt -- in other words, it is not
up to an accused person to prove that he or she is not guilty.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=25&house=COUNCIL&speech=11909&date1=16&date2=M
arch&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile=/
tmp/rand263663247158&query=true+and+( Page 25

The prevailing philosophy of our legal system is that it is better for some guilty
people to escape the force of the law than it is to find an innocent person guilty
through an inefficiency in the system or a deficiency in the proceedings of trial. Of
course, no system is perfect. Rather than a system that is more inquisitorial, Victoria
has inherited a system which favours the accused and protects the innocent whenever
possible.

And

Trials should be conducted in the fairest possible way.

And

Secondly I refer to an article written by Ron Merkel, QC, entitled Unsworn Evidence
in Criminal Trials - The case for change and the case for the status quo which was
included in a Victorian certificate of education legal studies discussion paper
produced as part of the Victorian Council for Civil Liberties schools program when
Mr Merkel was president of the council.

Under the heading Protecting the Innocent the article states:

A quite separate and further basis in more recent years for the retention of this right
on the part of an accused is the recognition that in a multicultural and diverse

Part 3 Page 32

Page 32 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

society many accused persons will simply present poorly to a jury. Persons on
serious criminal charges when in the witness box may stammer, twitch, sweat,
become flushed, appear to be uneducated, be stupid or just seem confused. Those
persons are no match for the skilled Crown prosecutor but nevertheless they may
still be truthful and innocent.
Leading judges such as Chief Justice Bray in South Australia and Lord Devlin in the
United Kingdom have commented that such circumstances can lead a jury to ask if
the accused is a bad witness or untrustworthy rather than whether he or she is guilty.
If the right is abolished such persons will be deprived of the opportunity to put their
view of the facts before the jury. Responsible counsel will not oppose clients to
cross-examination if they are unable or poorly equipped to handle that situation.

An article by Bronwyn Naylor published in the Law Institute Journal of July 1985
states at page 682:

The former Chief Justice of the South Australian Supreme Court, John Bray, said
recently of the unsworn statement that all logic is against it and a good deal of
experience is for it . He went on, If the unsworn statement does go and all accused
persons who want to get their story before the jury are forced into the witness box I
think that some guilty people who would otherwise be acquitted will be convicted
and that is a good thing as far as it goes. But, I also think that some innocent people
will be convicted who would otherwise be acquitted and in view of the traditional
bias of the common law in favour of the accused that should have enormous weight.

Again;

The Crown must prove that an accused person is guilty beyond reasonable doubt -- in
other words, it is not up to an accused person to prove that he or she is not guilty.
There can be no “beyond reasonable doubt” where the prosecutor does not have to prove its
case. It is turned into a STAR CHAMBER COURT, (outlawed also by the Act Interpretation
Act 1980
).

Hansard 21-5-1993 Assembly (Victoria)

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1190&orig
query=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+con
tains+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+a Hon. LOUISE ASHER
(Monash) --

I shall put the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match3"
Bill in the context of the government's concerns. The HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match3" Bill is one of a number of
measures that the government has introduced to deal with the problem of violence
against women and rape in our society. During this sessional period we have already
dealt with the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Evidence ( HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Evidence ) HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match4"
Bill , which abolished HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match5" unsworn statements. They provided the statutory right for a person
accused of rape to stand in court and make up whatever lies he wished about the
victim.

Part 3 Page 33

Page 33 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

This may underline that its intention was directed more as to serious crimes where the accused
could cross examine victims butthen the accused could make an unsworn statement.
In a matter of “FAILING TO VOTE” there is clearly no such traumatic kind of scenario for the
victim of a serious crime possibly being terrorised during cross examination.

As shown below;

So far as those who are unrepresented are concerned, generally people are
represented in court proceedings and, notwithstanding the difficulties associated with
legal aid, that situation will continue in Victoria. Nevertheless, the issues raised are
important. I am prepared to give an undertaking that the new legislation will be
carefully monitored and, if there is need for change after the enactment of the Bill, it
will be examined by the government in the appropriate way -- whether by amending
the Evidence Act or doing something else to deal with the people affected.

It must be recognised that Parliament never contemplated that any Court would conduct a case
where the prosecutor could simply not have to prove any crime has committed and so the accused
being denied to challenge the evidence as there is no evidence, and as such there can be no
“beyond reasonable doubt” as all it results to is that the judicial officer merely ASSUMESthat the
defendant has committed the crime charged with and the Defendant now has the onus to disprove
the crime having occurred. This is contrary to what is “ENSHRINED” in the Commonwealth of
Australia Constitution Act 1900
(UK)
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 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.

It cannot be accepted that the Commonwealth Director of Public Prosecution can hide behind
averment preventing the Defendant to challenge anything, because there is no evidence and yet
he can cross examine the Defendant. It flies in the face of what is NATURAL JUSTICE and a
FAIR AND PROPER TRIAL and certain never intended by the legislators when they abolished
the right of an unsworn Statement, as quoted below.

19940503 Legislative Assembly

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=439&origq
uery=true+and+(+data+contains+\\'Evidence\\'+and+data+contains+\\'Unsworn\\'+and+data+cont
ains+\\'Evidence\\'+and+data+contains+\\'Bill\\'+)&query=true+an Hon. LOUISE ASHER
(Monash) --

As I understand the amendment it is to ensure that the victim can be cross-examined
only when the statement is unfairly prejudicial to the offender. The issue of where
cross-examination on victim impact statements should occur is a valid issue for
debate. I know the Victorian Council for Civil Liberties was strong in its view that
the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match5" evidence
should be tested by cross-examination. In the debate on the HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match6" Evidence ( HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match6" Unsworn HYPERLINK

Part 3 Page 34

Page 34 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

"http://tex2.parliament.vic.gov.au/bin/" \l "match6" Evidence ) HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match6" Bill I argued that any
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match6" evidence given
in court should be subject to the test of cross-examination, and I am mindful of the
need for consistency. However, an argument can be made that because victims have
already given their HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match7" evidence , in some circumstances cross-examination may be seen to be
harsh. Some victims groups have voiced that concern. I shall briefly outline what the
Attorney-General has said about cross-examination.

The Attorney-General is strongly in favour of a decision being made about whether
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match8" evidence is
or is not cross-examined.

But the opposition is suggesting some halfway house, that there be cross-examination
in some circumstances but not in others. It is important to make a decision. Cross-
examination either should or should not take place. A decision to opt for a middle
course would give the court a considerable degree of discretion in an emotional area.
The Attorney-General has also said that cross-examination cannot begin without the
consent of the judge. Further, and most importantly, she has said that evidence from
other jurisdictions shows that cross-examination happens only rarely.

In the other place the honourable member for Mornington expressed considerable
concern about cross-examination. I also note that Mr Pullen said he wanted the
legislation to be monitored -- and I assume he meant this aspect most of all. After I
first read the bill I had the same concerns as those articulated in the other place by the
honourable member for Mornington. But it is important to allow the legislation to
pass as drafted and to see how it goes.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=443&house=COUNCIL&speech=17622&date1=3&date2=M
ay&date3=1994&title=SENTENCING+(VICTIM+IMPACT+STATEMENT)+BILL
&tmpfile=/tmp/rand264684041762&query=tru Page 443

The Attorney-General has made the important point that in other jurisdictions victims
have not been harassed, an issue honourable members are rightly concerned about,
and cross-examination has occurred only rarely.

Hansard 5-5-1993 Assembly (Victoria)

Mr COLE -- It does not these days, more's the pity. The Upper House in essence is
still an anachronism, but it has changed. So too has the right to give unsworn
evidence. That right exists for a specific purpose. Many years ago now that right was
changed and it now exists under a different set of circumstances.

Many other things are anachronisms: for example, the oath and the affirmation. I
cannot see why somebody should swear an oath or make an affirmation. A person
going into the witness box should be told by the judge, Tell the truth . It is not too
much to ask. If a person does not tell the truth and that is proved to be so, the person

Part 3 Page 35

Page 35 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

should be charged with perjury. Why should a person have to make such an oath or
affirmation? It goes back to the days when one had to swear on the Bible. Things
have changed. Now people can make an affirmation. In time it could be seen as
unnecessary.

And

The right to give unsworn evidence has been through many processes of review over
many years, and it is still felt by most that it should be retained.

Two judges of the Law Reform Commission dissented from the majority, so I am not
suggesting that the view that the right should be retained is held unanimously within
the community, but certainly the overwhelming result is that it ought to be retained.

This issue fits quite clearly into the rubric of what constitutes a fair trial. Many
factors determine whether a trial is fair and they should be balanced against the need
to establish the truth. Recently the High Court in the Dietrich decision decided that a
judge can grant an adjournment or stay at his discretion if the outcome is likely to be
unfair in that it forces the accused to be tried when unrepresented. That was a
foundation decision and completes the circle of what constitutes fairness in a trial
setting. The legal system has moved as far as saying that it is unfair for a person not
to be legally represented. That is actually enshrined in the law by the High Court. We
have moved a considerable distance towards what constitutes a fair trial.

Certain issues aside from that are sacrosanct. They include the jury system, the right
to silence, the presumption of innocence, that the burden of proof lies with the
prosecution and that guilt must be proven beyond a reasonable doubt. I hope the
Attorney-General will agree that those principles are imperative for the effective
operation of our justice system and for the retention of a fair and just society. Other
issues such as the giving of unsworn evidence require deliberation but they do not go
to the kernel of the legal system as do the matters listed above. For example, it is not
quite in the same bracket as the requirement that guilt be proven beyond a reasonable
doubt or the right of silence.

Many arguments have been put forward as to why the right to give unsworn evidence
should be withdrawn from accused persons. I would like to go through some of the
arguments against its retention. The first is the requirement to test all evidence by
cross-examination.

It is not unreasonable that evidence, whether given by way of defence by the accused
or in the normal course of events, be tested.

Evidence may be given in the witness box or the witness may choose to be silent. If
that is the case,

evidence cannot be tested because no evidence has been put forward. All evidence
that the witness seeks to rely on -- alibis or whatever other evidence -- is subject to
cross-examination by the prosecution, but that is not the case with unsworn evidence.
The story is put forward but is not subject to cross-examination. The witness has two
alternatives: giving evidence or remaining silent.

Part 3 Page 36

Page 36 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1602&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256974418567&query=true+and+( Page 1602

There is some merit in that argument in terms of perceptions of fairness, certainly in
some of the more difficult cases where victims have been badly affected by the
alleged crime. In a sense there is almost a perception that the victim has to be cross-
examined but the accused can give his statement and does not have to be cross-
examined.

Another issue is the defendant's attack on the reputation of an innocent person
without the risk of cross-examination, particularly in trials for rape and related
offences. The defendant can present a statement without being cross-examined, and
that fits into the first bracket I described.

It is argued that a defendant's counsel can cross-examine broadly to elicit useful
material for the subsequent preparation of an unsworn statement by the defendant.

It is reasonable to suggest that that happens and that there are times when a great deal
of work is put in to lengthy cross-examination to ensure that the best possible story is
presented by the accused in an unsworn statement.

Another issue is the opportunity to attack the credibility and reputations of innocent
persons without fear of retaliation, and that is extremely important from the point of
view of the accused. If the credibility of a witness is attacked without re-examination
by his or her counsel the case can appear to be unfair. That situation may have a
deleterious effect upon the victim because he or she cannot argue why his credibility
should not be attacked or that what is being put forward is incorrect.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1605&orig
query=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+a
nd+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr RYAN (Gippsland
South) -- I support the Bill.

It is relevant for the purpose of the debate to have regard to the historical origins of
the right. It arose initially in England and in circumstances where prior to 1898 and
the passage of the Criminal Evidence Act a person charged with a criminal offence
was not entitled to give evidence on oath. He was able to make a statement about his
position, but he could not give evidence on oath. According to the terminology at the
time that person was not a competent witness .

There was also concern at law about the concept of a person giving self-incriminating
evidence. Those various concerns were melded into the position that applied prior to
the passage of legislation in 1898.

With the passage of the Criminal Evidence Act it was held that a person accused of a
crime was permitted to give HYPERLINK "http://tex2.parliament.vic.gov.au/bin/"
\l "match2" sworn evidence, although at the time of the passage of the Act the
right to make an unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l

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"match3" statement was retained; that position carried over into the Victorian law
and it still applies now in the general sense.

At the moment the position in Victoria is that a person charged with a criminal
offence is entitled to adopt one of a number of courses: that person can choose to
remain silent; he can go into the witness box, give HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match4" sworn evidence and be cross-
examined; or he can give unsworn evidence.

Until 1986 such a person was entitled to make an unsworn HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match5" statement but, as a result of
amendments to the Evidence Act in 1986, the provision was qualified to the point
where a person charged with a criminal offence is now able to give unsworn
evidence.

That is another example of, I suppose, the evolutionary aspect of the development of
this concept.

Prior to 1986, in the era when an unsworn statement could be made, the process also
went through developmental stages. As a practitioner in the sphere that we now have
under discussion. I remember when the legislation had reached the point that it was
permitted for counsel appearing on behalf of an accused to assist the accused in the
preparation of an unsworn statement.

I well remember the situation where the unsworn statement of the accused made its
way onto a word processing screen at the start of a trial; with the passage of the days
of the trial it was modified as the evidence transpired and the statement ultimately

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1606&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256970586626&query=true+and+( Page 1606

read by the accused person often took on a different form from that which had been
contemplated on day one of the trial. In any event, in 1986 that position was
remedied in part by the fact of unsworn evidence being brought into being.

The real issue that we are talking about is the issue of a fair trial; a person brought
before a court is entitled to a fair trial. That is the issue under consideration. To look
at it in terms of bald statistics in the manner the honourable member for Melbourne
has done is not to deal with it on a proper basis. The guiding principle in a system of
justice must be that a person charged with a criminal offence is entitled to a fair trial.
That in turn leads to what comprises a fair trial. In reality the community's view
about these issues evolves with the passage of time. The best example is the original
English Criminal Evidence Act of 1898. In 1780 Sir John Fielding proposed that a
regular police force be formed in England. That proposition was opposed by 12 of
the 15 judges of the day.

In 1836 when the right of counsel to appear on behalf of the accused charged with a
felony was proposed, 12 of the judges of the day were opposed and one judge
threatened to resign. It is interesting to contemplate the evolutionary aspect of the

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development of the law with the passage of time. Legislation reflects a community
view, and the community at present is of the view that the right to give unsworn
evidence must go.

The honourable member for Melbourne spoke about the rights currently enjoyed in
the community and said that one must be careful about taking away a right that
currently exists. I agree with his comments in that regard. The community, though,
has already expressed its views about taking away rights which have long been
enjoyed, such as civil and common-law rights. Governments of all persuasions have
brutalised the common law over past decades in areas including rights under the
Transport Accident Act.

And

There are numerous examples where the community view about a given right which
has long been in existence has to be modified. Such is the case in this instance.

Maintenance of a system of a fair trial is paramount.

I cannot see why the removal of the right to give unsworn evidence is equated with
damaging the concept of a fair trial. An accused person is entitled to remain silent if
he or she so chooses, or is entitled to go into the witness box and give sworn
evidence and be cross-examined.

The honourable member for Melbourne rightly and fairly raised the fact that those
who are disadvantaged for a variety of reasons may not in the course of a criminal
trial have the capacity to speak on their own behalf. I share the honourable member's
concerns in that regard; they are intrinsic to the issues that must be protected if we
are to maintain a fair criminal justice system. There is a process available within the
existing system and within that which is proposed under the ambit of the legislation
to enable that to happen.

Currently a judge in a criminal trial does not enter the arena as often as he might in
circumstances where an accused has a right to give unsworn evidence.

The tendency is to stay out of the conduct of the trial and allow it to take its course. If
the legislation is passed the judges in those circumstances should conduct a trial in
such a way that they give protection to persons whom they perceive as being
disadvantaged.

The Full Court is a second level of protection for those persons. There is an appellate
system in place in the State, and if it is perceived that a person is disadvantaged by
the conduct of a trial and that

person has been unfairly convicted he or she has the right of appeal to the Full Court.
One should be mindful of the law as we propose it to apply rather than what has been
the case in the past.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1607&house=ASSEMBLY&speech=12803&date1=5&date2

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=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256976070253&query=true+and+( Page 1607

Unlike the position that applied when the Criminal Evidence Act of 1898 was passed,
the majority of people who come before courts charged with criminal offences are
legally represented. That representation removes many of the concerns that were
present when the legislation was enacted. The view of the community is important
for those who are involved in a trial, especially the victims. They perceive the
situation as being that everybody else who gives evidence at a trial is subjected to
cross-examination. The only exemption to that is the person accused of the offence in
the first instance.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage
=1607&origquery=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'state
ment\\'+)&query=true+and+(+data+contains+'sworn'+and+data+contains+'statement'
+)&db=h Mr THWAITES (Albert Park) -- The philosophy underlying the Bill
appears in the second-reading speech.

The government believes it is anomalous that a witness must give evidence that is
subject to cross-examination but the accused does not have that same obligation.

The honourable member for Gippsland South said that the government's argument is
based on the presumption that the accused person and the witness are in the same
position and that their evidence should be treated in the same way. But the witness
and the accused are not on an equal footing. The accused has much more to lose. The
accused, who may be innocent, faces conviction, punishment and in most cases the
deprivation of his or her liberty, so the accused is in an entirely different position
from that of an ordinary witness. That is the reason for the golden rule of criminal
law that the prosecution must prove its case beyond reasonable doubt.

Obviously the honourable member for Gippsland South does not understand that rule
and how it applies in criminal cases, because he said that the abolition of unsworn
statements was necessary to enable juries to decide which of the two stories to
believe.

That is not the basis on which criminal trials proceed or have proceeded for hundreds
of years. Criminal trials do not proceed on the basis that the jury takes a story from
the prosecution and a story from the accused, weighs them up and determines which
is the right or more credible story. A criminal trial must proceed on the basis of the
prosecution proving beyond reasonable doubt that the accused person is guilty. It is
not for the accused person to prove his or her innocence.

A very good reason exists for that.

The philosophy of civilised societies is that it is better for some guilty people to be
acquitted than for an innocent person to be convicted, because imprisonment and
punishment are such terrible things. Society says that an innocent person should not
be subjected to that punishment -- even though that has happened

before -- so it is prepared to weigh the scales of justice in favour of the accused. It
has never been an even balance. The government seems to want to destroy that

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golden rule of justice, and its move toward that is consistent with what it is doing in
other legislation.

Whatever is happening in other jurisdictions, that view is inconsistent with the view
of the High Court and with the views of legal practitioners.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1608&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256972008673&query=true+and+( Page 1608

The High Court has recently reconfirmed the basic rule that it is for the prosecution
to prove the accused guilty beyond reasonable doubt and that it is not for the accused
to have to prove his or her case.

And

The next point I make is that the judge is required to instruct the jury prior to
unsworn evidence being given that the evidence is not subject to cross-examination.
Indeed, the judge again refers to this at the time of the charge to the jury. On two
occasions the jury is made well aware that the evidence is unsworn and is not subject
to cross-examination. In fact, the jury is told that in emphatic terms as a matter of
practice. That is my experience and the advice I have received from legal
practitioners who practise in the criminal law area.

And

The unsworn statement given in the past was much less constrained than the unsworn
evidence that can be given now. In the article in the Law Institute Journal of April
1992 the Attorney-General says that once the accused gives evidence the prosecution
case is closed and there is no cross-examination of the accused and no opportunity to
rebut the evidence.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1609&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256974052023&query=true+and+( Page 1609

She says that while there is a right for the prosecution to introduce evidence by way
of rebuttal, as a matter of law it is not an automatic right.

Of course, the accused in giving unsworn evidence cannot give evidence that has not
been put to the complainant. That is the rule in Brown v. Dunne, the well-known rule
that the honourable member for Doncaster would be aware of whereby a witness,
including the accused, cannot put in evidence an accusation that has not already been
put to the complainant. It is not a situation where the prosecution has not had a
chance of rebutting the evidence. The prosecution has had a chance to rebut the
evidence because the complainant would have had it put to her, and it would have
been raised during the running of the prosecution case. I am glad the honourable

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member for Gippsland South agrees, because I am dealing with the Attorney-
General's claim in an article in the Law Institute Journal.

The issue of rebuttal is important because the Attorney-General claims it has not
often occurred that the prosecution has rebutted the evidence given in an unsworn
statement. In fact, the advice I have from numerous practitioners in the field is that if
there were information put in unsworn evidence which was relevant to the case, and
which the prosecution had not had a chance to rebut, the court would give the
prosecution the right to reopen its case to rebut it.

The next point, particularly in relation to rape and sexual assault cases, according to
the advice I have received from criminal law practitioners, is that loose statements
against the prosecutrix are not generally made in rape cases for the principal reason
that, if such allegations were made, it is likely the court would rule that character was
in issue and that the prosecutor was therefore entitled to lead evidence of the
accused's bad character and prior criminal convictions. That is a major reason why
the accused will not raise wild allegations.

Finally, in sexual cases the abolition of unsworn evidence will not stop the vigorous
or unfair cross-examination of rape victims. I refer the House to a minority report of
Jocelynne Scutt in the 1985 Law Reform Commission report. Ms Scutt has a fine
reputation among feminist groups. She has written many books on the subject and
there is probably no-one in the community who has more concern than she has about
these issues. She says:

If the unsworn statement were abolished, it would not mean that a defendant would
have to give evidence and be cross-examined. He could remain silent -- whilst the
woman victim continued to be harshly treated through cross-examination.
Suggestions that the woman is lying, that she is sexually loose or promiscuous could
continue to be made. Friends of the defendant could continue to be brought into
court to make allegations about the woman's sexual character.
The women's movement (and the general community) might be even more affronted
if the defendant remains silent altogether, while the victim witness is questioned.
The victim witness will be stringently cross-examined whether or not the defendant
gives an unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match6" statement , a HYPERLINK "http://tex2.parliament.vic.gov.au/bin/"
\l "match6" sworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match6" statement , or remains totally silent.

Jocelynne Scutt has impeccable feminist credentials and she says that the abolition of
unsworn evidence will not lead to a better situation for female victims of crime who
are called to give evidence.

The honourable member for Melbourne referred to disadvantaged defendants, so I
shall not go through that issue in detail other than to refer again to the minority report
of Jocelynne Scutt, who refers to the problems for some disadvantaged groups,
including non-urbanised black Australians or disadvantaged groups of other
backgrounds. She states:

The question of whether the disadvantaged person is a victim or a defendant is not
the only issue. The base issue is whether, coming from a disadvantaged group, the
individual can be disproportionately dealt with by questioning and cross-
examination. The cross-examination seems unfair because the person in the

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particular category, or with the particular background, is disproportionately
susceptible to stringent cross-examination.

These are accused people who firstly may be innocent and secondly, if found guilty,
may lose their freedom and face a long term of imprisonment. That is a risk which I
am not prepared to take and which I do not believe the opposition is prepared to take.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1609&orig
query=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+a
nd+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h

Mr COOPER

(Mornington) –

Most people ask only one thing of the criminal justice system -- that is, that justice be
done. They do not ask for statistics; rather they ask that, where a person has been
charged by the police and brought before the courts, evidence is advanced that will
enable the right decision to be made. I am not particularly interested in whether 2, 3,
5, 15 or 20 per cent of guilty people get off; but I should like the system to be as
good as it possibly can be.

The system is not perfect because, as the honourable member for Albert Park said, it
is weighted against the prosecution and in favour of the defence. In every instance the
prosecution is required to ensure that the evidence on which an accused person is
convicted is true. If the prosecution cannot come up with that evidence, the person
must be acquitted.

(Again;

If the prosecution cannot come up with that evidence, the person
must be acquitted.
)

And

People in the street are demanding that the justice system be simply what it claims to
be: a system of justice.

The community will demand that people who have committed crimes are brought
before the justice system and, when convicted under rules that are fair and equitable,
dealt with. That is not the situation that exists now in Victoria and that is what the
government is trying to rectify.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1611&orig
query=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+a
nd+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr LONEY (Geelong
North) –

And

In particular, it is about the fundamental belief in a presumption of innocence until a
person is proved guilty that underpins our legal system.

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And

I refer in particular to what the honourable member for Gippsland South said about
no perjury charges being laid against people who have made unsworn statements. His
manner betrayed more than a convincing argument; it betrayed his own biases. He
said that he was surprised that no charges of perjury had been laid against persons
who had made unsworn statements. Why would he be surprised?

It seems that the major element of surprise is based on a presumption that people
make unsworn statements only because they do not wish to tell the truth.

That is simply not so. For a range of reasons people may prefer to give unsworn
evidence rather than evidence on oath, and I would like to examine those reasons.

Some people give unsworn evidence for social or even cultural reasons. Some people
in our community are at a disadvantage for a number of reasons if they go into the
courts. Some groups would not be able to put their side of the story in court without
running the risk of casting themselves in a poor light before the jury. The term
casting themselves in a poor light is very important because, as has been pointed out
by many people close to the legal profession, people should not be convicted because
they are poor witnesses. They should be convicted only by due process through

the court and by a finding that they are guilty beyond reasonable doubt.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1613&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256974713407&query=true+and+( Page 1613

Some people would be in great danger if they did not have the advantage of giving
unsworn evidence. Who are those people? In the main they are those groups in the
community that for one reason or another are described as disadvantaged.

They may be disadvantaged in that their language skills may be less developed than
those of other groups or they may not be overly familiar with English. Simply the use
of an interpreter may disadvantage them. People who lack education to the point that
they have difficulty coping with the court system could be disadvantaged, and so
could those who are intellectually disabled.

All those groups for one reason or another may have some difficulty understanding
questions and, more importantly, may find it difficult to express themselves in the
best way possible.

It has also been pointed out in a number of places that the cultural background of the
Australian Aborigine is a particular difficulty in the court. Aborigines before the
court often have difficulty not answering in the affirmative to a person in a position
of authority. That is referred to in the same report of the Law Reform Commission
quoted by the honourable member for Mornington.

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The report also refers to people who may be well enough to stand trial but suffer
from illness or accident injuries which still affect them.

There is also the group of people who for one reason or another react poorly under
the stress of cross-examination and trial. They may exhibit nervousness in their
replies or physical symptoms of nervousness, perhaps undue twitching or sweating,
which may lead a jury to reflect poorly on their evidence even their behaviour may
not necessarily be a reflection of guilt. Such people could well be innocent.

Mr Justice Bray wrote the following:

The inquiry may imperceptibly shift from the question, Is the accused guilty? to the
question, Is the accused credible? These are not the same questions.

The shift in emphasis in our legal system from a person having to be proven guilty
beyond reasonable doubt to a person being proven not to be a credible witness is very
important. It is an important and valid reason why the right to give unsworn evidence
should not be taken away without some reasonable evidence to suggest that the right
is being abused.

The central myth surrounding unsworn evidence is that huge numbers of guilty
people have avoided conviction through making unsworn statements - they have been
acquitted and walked out of the courts when they should have been locked up. The
figures put forward by the honourable member for Melbourne and others put the lie
to that myth. That is simply not occurring.

They quoted 1985-86 figures. I shall go back further to 1981 when the Law Reform
Commission presented evidence that people giving unsworn evidence were less
likely to escape conviction than those giving sworn evidence. Figures from 1978
suggest that 36 per cent of people giving sworn evidence were acquitted while only
20 per cent of people giving unsworn evidence were acquitted. So at that time fewer
people who gave unsworn evidence were acquitted than those who gave sworn
evidence.

I can go further by looking at the overall figures on those acquitted who gave
unsworn evidence. If it is assumed that all who gave unsworn evidence and were
acquitted were guilty -- and that is a fairly large assumption -- --

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1614&orig
query=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+a
nd+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mr TRAYNOR (Ballarat
East) –
And

For a long time I have been concerned about victims of and witnesses to violent
crimes, including the young, the elderly and the frail, and the female victims of
depraved sexual attacks who must give

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/" \l "match7" sworn evidence in courts and
who are subject to rigorous cross-examination by highly skilled barristers. The

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accused does not have to enter the witness box to give evidence. On many occasions
I have seen the accused sitting at the back of the court taking numerous notes.

The honourable member for Melbourne knows well that in police and legal circles
the unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match8"
statement is known as cowards' castle. It is often a web to weave fairy tales into
fact, and some of the fairy stories would make the efforts of Hans Christian Andersen
look amateurish. Unsworn evidence is simply a licence to lie. A Crown prosecutor
once said that when an accused gave unsworn evidence in most cases he told lies.
There is an urgent need to review the situation.

I shall refer to a statement by the then Attorney-General, the present Leader of the
Opposition, who is reported in the Herald Sun of 18 May 1991:

The Attorney-General, Mr Kennan, has promised a review of allowing defendants in
criminal trials to give evidence without being cross-examined -- if he believes such
a review is warranted.

Mr Kennan has said he will seek the opinion of the appropriate people, including the
police and the Director of Public Prosecutions .

He says that if the view is that giving unsworn evidence should be reconsidered, he
would refer the matter to the Victorian Law Reform Commission.
Senior police said yesterday they were eager for unsworn evidence to be scrapped.
We want the matter re-examined as quickly as possible, said Assistant
Commissioner (Crime) Bob Falconer.
Senior police have argued that justice is not served by allowing accused people to
make, before a jury, statements that cannot be cross-examined.
We want a system which is equal for all, Mr Falconer said.
Unsworn evidence would be the greatest bone of contention in the system.
All witnesses should be on equal footing and all evidence should be tested through
cross-examination.

At least three respected judges have made comments about unsworn evidence. I shall
quote from an article headed, A question of criminal justice which also appeared in
the Herald Sun of 18 May 1991:

At least three respected Victorian Supreme Court judges have expressed concern
over the practice.
Justices Beach, Gobbo and Marks have queried the value of evidence which cannot
be cross-examined.
Justice Barry Beach has long argued the accused should not be allowed to give
unsworn evidence.
Cross-examination is probably the best test yet devised to assess the truth of a
person's statement and to deter lying.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage
=1615&origquery=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'state
ment\\'+)&query=true+and+(+data+contains+'sworn'+and+data+contains+'statement'
+)&db=h Mr E. R. SMITH (Glen Waverley) -- In 1825, Jeremy Bentham, the

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great English law reformer, commented on the right to make an unsworn statement
without the risk of being questioned by a prosecutor or judge. He said:

If all criminals of every class had assembled, and framed a system after their own
wishes, is not this rule the very first which they would have established for their
security?

In 1590 in the case of R. v. Udal it was found that it was necessary only for a person
to swear that he did not commit the crime to be let off. After that the courts went to
the other extreme of stopping all accused from making any statement. It was not until
1833 that the courts restored to an accused person the right to make a statement.

In Victoria today, the accused has four choices: he may stand mute; he may give
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match9" sworn
evidence; he may give unsworn evidence; or he may make an unsworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match10" statement . An
unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match10"
statement is permitted when the accused is unrepresented. As honourable
members are aware, the Legal Aid Commission now provides the representation that
the disadvantaged and the inarticulate require to defend themselves.

The main reasons for the retention of unsworn evidence are fairness to the accused
and a desire to make the prosecution prove its case beyond reasonable doubt. In 1986
the principal Act was amended and a trial judge was allowed more discretion in the
admission of facts. Accused persons faced the possibility of being charged with
perjury if they made untrue statements while giving unsworn evidence.

As has been forcibly put by the lawyers on the government side and by the previous
speaker, the honourable member for Ballarat East, people do not believe they are
getting a fair go. The giving of unsworn evidence does not allow either the accused to
be cross-examined or the Crown prosecutor to

comment on the failure of the accused to give sworn evidence.

The system provides a haven for the accused to attack the prosecution's case and the
evidence of witnesses without fear of counterattack. It is time we took on board the
precedents set in other jurisdictions similar to our own. Unsworn statements are
hangovers from the past when an accused was not permitted to give evidence.
Unsworn statements were abolished in England in 1983; in Canada in 1893, 100
years before; in New Zealand in 1966; in Queensland in 1975; in South Australia in
1983; in Western Australia in 1976; and in the Northern Territory in 1984.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1616&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256973835468&query=true+and+( Page 1616

All those jurisdictions share common law traditions with Victoria. Given the
abolition of the death penalty and the provision of counsel at public expense for
needy persons committed for trial, the entrenching of the right to give unsworn
evidence is anomalous, because its sole purpose appears to be to assist accused

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

persons to escape conviction. The use of unsworn evidence in the Walsh Street trial
is still fresh in the minds of honourable members, as is the use of an unsworn
statement by Lionel Murphy in his second trial, which resulted in his acquittal. I
believe unsworn statements should be abolished.

(Again;
Unsworn statements were abolished in England in 1983)
And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage
=1616&origquery=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'state
ment\\'+)&query=true+and+(+data+contains+'sworn'+and+data+contains+'statement'
+)&db=h Mr PERTON (Doncaster) - This has been an extraordinarily thoughtful
debate, one to which members on both sides of the House have made excellent
contributions. The debate is about the pursuit of justice. The opposition has been
seeking justice for the accused while government members have been seeking justice
not only for the accused but also for the community in general. In particular,
government members have been seeking justice for the victims of crime, who in
many cases must relive the horrific circumstances of the crimes that have been
committed against them when they are giving evidence.

The justification for the abolition of unsworn statements is that the system has been
abused. The original purpose of unsworn statements was to protect an
unsophisticated witness from being badgered or browbeaten by a clever and powerful
counsel. The honourable member for Albert Park spoke about his experiences, and
the honourable member for Ballarat East gave a thoughtful contribution based on his
experience.

During my time as a barrister I have browbeaten witnesses, and I have not always
seen them given a fair deal by judges. I know people have made admissions -- --

Mr Micallef interjected.

Mr PERTON -- The interjection by the honourable member for Springvale shows
that he is a pathetic man who is unable to make a thoughtful contribution to the
debate. We are talking about truth; and as the honourable member for Melbourne
said, in many cases people giving sworn evidence perjure themselves. One of the
reasons why perjury actions are not brought in this State is that perjury is difficult to
prove; and as a matter of public policy, it is difficult to re-run the litigation.

The legislation puts defendants on the same footing as victims, witnesses for the
prosecution and members of the general community.

That procedure is proper in the case of most defendants because the unsworn
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match11" statement has
been used and abused by sophisticated defendants represented by sophisticated
barristers.

I do not know the particulars of the case referred to by the honourable member for
Ballarat East, but it probably was a case of people who were well capable of giving
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match12" sworn

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

evidence and who were well represented but who chose not to do so as a matter of
tactics so as to give themselves a procedural advantage.

The Scrutiny of Acts and Regulations Committee has examined this Bill. The
committee accepted the HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match13" statement made by the Attorney-General -- namely, that the primary
purpose of the legislation is to put everyone on the same basis and to eliminate the
abuses of the legislation. During its investigations the committee received evidence at
a public hearing that led many committee members to investigate the matter further.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1617&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256973723786&query=true+and+( Page 1617

I ask the Attorney-General to investigate the circumstances of people who are
genuinely unsophisticated and who are perhaps in some danger of being browbeaten
by barristers. Examples were given to the committee of people who have a very low
intellect or a very low IQ who, on many occasions, will not be capable of thinking
about the consequences of their answers: they may say yes when they mean no. So,
too, certain ethnic groups in our community will experience difficulties because of
their cultures. Without being racist, I point out that one example given to the
committee was of the Aboriginal community where a person is more likely to answer
yes than no to a question from someone in authority. The committee is concerned
about the people who are unsophisticated and those who are culturally more inclined
to answer yes to an authority.

I ask the Attorney-General to monitor the operation of the legislation in the courts
and if for instance it appears that some injustices occur whereby judges are not
capable of ensuring a fair trial in every case, because of the abolition specified in the
Bill or that certain groups are being disadvantaged as a result of the legislation, to
review the situation and take action to ensure that justice is being done. The purpose
of the legislation is to ensure a fair go for the whole community. The coalition parties
are anxious not to cause an injustice to anyone.

The motives behind the contributions by the honourable members for Albert Park and
Melbourne are that justice should be done; and government members have spoken in
this debate on behalf of justice. Working together as a community and a Parliament I
hope we can have a better system of justice as a result of this legislation and an
ongoing monitoring of its operation by the Attorney-General and her department.

(Again;

The legislation puts defendants on the same footing as victims, witnesses for the
prosecution and members of the general community.

And

I ask the Attorney-General to monitor the operation of the legislation in the courts and if for
instance it appears that some injustices occur whereby judges are not capable of ensuring a
fair trial in every case, because of the abolition specified in the Bill or that certain groups

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Page 49 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

are being disadvantaged as a result of the legislation, to review the situation and take action
to ensure that justice is being done. The purpose of the legislation is to ensure a fair go for
the whole community.

And

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&startpage=1617&orig
query=true+and+(+data+contains+\\'sworn\\'+and+data+contains+\\'statement\\'+)&query=true+a
nd+(+data+contains+'sworn'+and+data+contains+'statement'+)&db=h Mrs WADE (Attorney-
General) –

We are not alone because a number of other States and countries including the United
Kingdom and Canada have removed the right to give unsworn evidence or an
unsworn HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match14"
statement . Canada gave away that right as long ago as the 1890s when the right
of an accused to give HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l
"match15" sworn evidence was introduced there.

When searching through the United Kingdom debates when the right to give
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match16" sworn
evidence was introduced, I noted that the issue of abolishing unsworn evidence was
not mentioned. Perhaps it was an oversight. That may have also been the situation in
Australia.

(Again;

When searching through the United Kingdom debates when the right to give
HYPERLINK "http://tex2.parliament.vic.gov.au/bin/" \l "match16" sworn evidence was
introduced, I noted that the issue of abolishing unsworn evidence was not mentioned.
Perhaps it was an oversight. That may have also been the situation in Australia.

And

As I have said, the contributions to the debate by non-lawyers were particularly
important. The honourable members for Mornington, Ballarat East and Glen
Waverley expressed the concerns of the community about the present situation and
the fact that they do not feel a fair go is being given in our courts when it comes to
giving evidence. The example given by the honourable member for Ballarat East was
most compelling. It is not an isolated example. It is similar to a number of stories I
have heard, particularly from rape victims, about their experiences in having to give
evidence repeatedly and being cross-examined for many days

on end only to hear the accused finally give unsworn evidence.

HYPERLINK
"http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.one&db=hansard9
1&dodraft=0&pageno=1618&house=ASSEMBLY&speech=12803&date1=5&date2
=May&date3=1993&title=EVIDENCE+(UNSWORN+EVIDENCE)+BILL&tmpfile
=/tmp/rand256970477588&query=true+and+( Page 1618

Whatever one may think about that, such legislation has an impact on the confidence
of members of the public, victims and their families and friends.

And

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Page 50 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

If people are so incapacitated that they are not in a position to give evidence -- sworn
or otherwise -- the right to give unsworn evidence is irrelevant. Those people whose
incapacities do not interfere with their right to give unsworn evidence should be in
the same position as those who choose to give evidence before a court. Also, a judge
has the power to determine how any cross-examination occurs and to place any limits
on questions put to an accused.

So far as those who are unrepresented are concerned, generally people are represented in
court proceedings and, notwithstanding the difficulties associated with legal aid, that
situation will continue in Victoria. Nevertheless, the issues raised are important. I am
prepared to give an undertaking that the new legislation will be carefully monitored and, if
there is need for change after the enactment of the Bill, it will be examined by the
government in the appropriate way -- whether by amending the Evidence Act or doing

FAILURE OF PROPER HAVING ELECTION PROCEDURES IN PLACE

Rather strange indeed absurd is that no one ever in more then 100 years since Federation bothered
to set out the correct election procedures. Indeed, due to my ongoing complaints it eventuate to be
revealed none existed that was to be relied upon by anyone to be able to ensure it is all done
appropriate. To avoid misconceptions I am therefore setting out one below.

Firstly, the Australian Electoral Commissioner has failed to have any proper procedure in place
that the election timetable is verified against the relevant legislative time tables. Hence, the Prime
Minister, the Governor-General, the governors, etc are all misled by incorrect information being
published by the Australian Electoral Commission.

There proved to be no system in place that ensured that the Australian Electoral Commissioner is
formally advised that an election is to be held. Indeed the Australian Electoral Commissioner
himself before the JSCEM (Joint Standing Committee on Electoral Matters) on 18 August 2002
admitted that he had relied upon a “press release”.
As such there is no system in place that the Australian Electoral Commissioner checks if the
relevant Proclamation is actually Gazetted and published, as had he done so then he would have
been aware that the Proclamation never was published on 8 October 2001 prior to the Writs being
issued that very day.
Because the Australian Electoral Commissioner prepares the Writs, seemingly as an unofficial
capacity, then the Governor-General may very well rely upon the Australian Electoral
Commissioner to point out any conflict of the draft writs prepared by the Australian Electoral
Commission versus any relevant legislative provisions, such as relevant time tables.
It appears to me that the Governor-General relies upon the Australian Electoral Commission to
ensure the draft writs are correctly prepared according to the relevant legislative time tables,
whereas the Australian Electoral Commissioner seemingly does not hod this to be his function,
and hence incorrect timetables result by this to be in the writs, making the writs defective and so
ULTRA VIRES.
There appear to be no system in place that ensures that the Office of the Governor-General and or
the Australian Electoral Commissioner continue a supervisory role as to the publication of the
proclamation actually occurring when required. Hence, it never was published on 8 October 2001.
Members of Parliament have no system in place as to check for themselves if in fact the
Proclamation to prorogue the Parliament and to dissolve the House of Representatives actually
was published, but seemed to have vacated the parliament upon a presumption it occurred. Hence,
not a single Member of Parliament attend to any required sitting day, even so the Proclamation
not having been published when required, prior to the purported prorogue of the Parliament
therefore there was no Prorogue of the Parliament.

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

There appear to be no system in place as to verify if the time table listed in the draft writs in fact
do provide for the periods “shall not be less than” as required by the relevant legislative
provisions.
There appear to be no system in place that in the even a Proclamation is not published when
required and/or writs are issued defective then any alternative election date is allocated that would
still allow for an election to take place where the original election date no longer can be
maintained.
There appear to be no system in place that the Office of the Governor-General, the Office of the
Prime Minister, the Offices of the Governors or other person check and verify that the timetables
in the writs reflect the timetables in the relevant legislative provisions.
There appear to be no system in place that provide for a immediate emergency sitting of the
Australian Electoral Commission to deal with issues such as those I raised in my 20 October 2001
email, as to take whatever immediate action that may be required as to seek to avoid the problems
to further escalate.
There appear to be no system in place that prospective candidates who were wrongly refused to
nominate still can be allowed to stand in an election,.
Indeed, there appear to be no system in place of even keeping records of those who were refused
to nominate as a candidate!

There is beyond doubt one system in place and that is that the Australian Electoral Commission
has unlimited resources, both financial and (so to say) legal eagles, as to seek to frustrate any
objector to achieve anything, being it in Court or otherwise!
If the Australian Electoral Commissioner cannot even manage the basic issues required to be
done to be able to commence an election process then how can any Court make any adjudication
against a alleged offender of the charge failing to vote, where the root of the problems lies with
the Australian Electoral Commissioner himself.
In my view, the Australian Electoral Commissioner should be impartial but cannot be so where he
is in charge of conducting the election and supervise it also. There is clearly a conflict of interest
there and practice has proven that the Australian Electoral Commissioner ignore his supervisory
role then and rather persist at all cost with pursuing wrong doings.

Surely neither the Prime Minister, the Governor-General or the Australian Electoral Commission
can overrule constitutional and/or legal provisions is clearly answered by the Hansard records of
the 14-4-1897 where it was made clear that the Constitution binds the Crown and all officials. As
such, there cannot be an issue that the Governor-General issuing a writ in defiance of legislative
provisions then such writs is binding, as clearly the writ will be ULTRA VIRES. Likewise, it
cannot be (as counsel of the Commonwealth DPP argued using the Kelly case, that the Australian
Electoral Commission is bound by the writs, as clearly there is no such thing as a Commonwealth
officer acting in breach of law. Neither could the AEC benefit from its own crimes, to have given
the Governor-General draft writs in breach of legal provisions and then having the Governor-
General issuing those writs claim the benefits of this. To allow for such practices would mean
anyone could deceive a bank teller and then when the bank teller pays out, having been deceived
then the person having deceived the bank teller, without any intention of the bank teller to do but
what is legally applicable, then could claim that not he but the bank teller acted wrongly and so
can benefit of his own originated crime. The signing of writs, being it by the Governor-General
or by any governor is a prerogative function that is required but does not itself entitles anyone to
then act in breach of law. Any writs that is issued in conflict of legislative provisions simply is
ULTRA VIRES. It has no legal enforcement, as it is not “according to law” as was intended by
the person so signing it. Likewise so with the Proclamation by the Governor-General. The
governor-General has the constitutional powers to call a general election, and when doing so he
may act upon the advise of the Federal Executive. If then the Federal Executive fails to ensure that
the Governor-General proclamation is published, then it cannot rely upon the benefits of this
defect to still have the proclamation enforced. The Governor-General does no more but issue the

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

proclamation which is he is bound to issue “according to constitutional and other relevant
legislative provisions”.

While even on election day it was shown on 10 November 2001 that the Australian Electoral
Commission (a Saturday) was able to get a hearing before the Federal Court of Australia against
Pauline Hanson One Nation (Victoria) the same does not exist for a objector against any alleged
wrongdoing by the Australian Electoral Commission.
What appears to be is that no one ever contemplated that the Australian electoral commissioner
may act with gross incompetence and/or lack proper competence to provide for a FAIR and
PROPER election process and hence no system was put in place to ensure that an objector could
have matters addressed as a matter of urgency before the election was to take place, as the
Framers of the Constitution intended when they made known that problems should be addressed
as a matter of urgency so that a new election could take place before the Parliament would sit.
This clearly is not provided for with the Court of disputed Returns system as such. And not at all
in the circumstances I took offence with and objected against each and every writ as being
defective and soULTRA VIRES.
It is like the WEAPONS OF MASS DESTRUCTION, everyone makes claims about the
election but there is no one competent enough to check if it actually exist or that it is a LEGAL
FICTION
where the proclamation is defective and so are the writs!

About politicians

Perhaps the expressed opinion quoted below may indicate that the Framers of theConstitution did
have their own reservation about what politicians are about. It is therefore the function and indeed
the obligation of judicial officers to remain impartial, and to adjudicate upon what constitutional
provisions are really about and not upon FICTIONAL legal issues that suit politicians and other
wrongdoers.

Hansard11-2-1898 Constitution Convention Debates

Mr. DOBSON.-I admit that is a most powerful argument, and if you were talking to
another Convention, or to men with judicial minds, who would take into consideration not
only what was fair to each state but what was in the interests of Federated Australia, putting
state interests on one side altogether, I would agree with the honorable member. But I ask
myself, who will be the men who will compose the Federal Parliament? They will be
exactly the same class of politicians as we have in our states Parliaments.

Mr. HOLDER.-And therefore you mistrust them.

Mr. DOBSON.-I am not going to trust them in this matter, and I will give my reasons.
Whatever the Constitution may be-conservative, democratic, or radical-I shall be loyal to
my fellow workers, and go back to my own colony and speak whenever I am required or
asked to do so, in order to urge the electors to adopt the Constitution. Now, putting all
questions of conservatism or liberalism aside, I shall be obliged to say-Here is Tasmania,
with its smaller purse than the larger colonies, and it cannot afford to enter the Federation.
My poverty and not my will may compel me to say-"For a time we must stand out." I now
come back to the question I have already asked-Who will be the men composing the Federal
Parliament? You will have the enlightened politician, the representative in every sense of
the word, who would never consent to become the delegate of any constituency. Then you
will have your politician who goes in as the mere delegate of a constituency. You will have
the politician who desires to be a national representative, but in a rash moment on the
hustings he will give one pledge-and probably the one pledge will be on this financial
question-which he ought not to give. You will have other men who are always trying to

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

catch the popular breeze and to dodge the unpopular breeze, who wish to find out before
they vote how their constituents want them to vote-and that is a very important aspectof a
politician's life. You will also have the politician who has once been lashed by the press, and
who does not wish-to be whipped again. He will wait to see how the cat jumps before he
votes. Let me say at once that I am not prepared to trust the Federal Parliament on a
question of that sort as implicitly as I would trust it to do what is fair and right in matters of
general legislation. Let me give an illustration of what I mean: Five men are entering into a
partnership; they put in a certain amount of capital, and they arrange how they are going to
draw out the profits for five years. At the end of five years they are going to leave it to a
new adjustment.

Mr. HOLDER.-They are going to adjust it according to their better knowledge.

Mr. DOBSON.-At the end of the five years' term one will say-"I have brought all the best
clients"; another man will say-"I got you that magnificent piece of business"; a third man
will say-"I did the block, and kept up the good name of the partnership with the outside
public"; the fourth will say-"I have done all the hard work, and I have always been found in
the office"; the last man will jump up and say-"Confound you all, I have got all the brains."
So you will go on, if you hand over this question to be settled by the Federal Parliament.
You [start page 874] will have delegates from each colony trying to point out why the per
capita
distribution is unfair, and why we should not have a common purse. There will be a
boom in one colony, and that colony will say that it must have the lion's share. Another
colony may be suffering temporary depression, and the other people will say they should
have the smaller share, and for all time, probably, you will keep up the difference between
state and state, and you will not become one people except in name.

BEING AGRIEVED

Re: Sidebotham (1880) 14 Ch D 458 James LJ
“A personagrievedmustbe a man who has suffereda legalgrievance, a man againstwhoma
decision has been pronounced which has wrongfully deprived him of something or
wrongfullyrefusedhim something, or wrongfully affectedhis titleto something.”

Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617
“But the definition of James LJ is not to be regardedas exhaustive. Lord M R pointedout in
Ex Parte Official Reciever, 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 madewhichprejudicially affectshis interests.”

The fact that I ended up with a criminal conviction, no subject to an appeal for a hearing DE
NOVO
on 17 November 2005 as result of the conduct by the Commonwealth of Director of
Public Prosecutions to pursue vexatious charges in the manner he did, then, I view, I am rightly
AGRIEVED.

These proceedings against me by the Commonwealth Director of Public Prosecutions in my view
were a gross abuse of the legal processes and seems to be some kind of vendetta against me for
daring to expose what was done unconstitutionally and illegally in regard of purported elections.
FAIR and PROPER elections do not exist if objectors are going to be pursued to such extend,
where all that was required to avoid this entire dilemma from onset would have been for the
Australian Electoral Commissioner to have followed the very legal processes his lawyers
indicated to be followed in their 25 October 2001 correspondence and that being proceedings

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

before the Federal Court of Australia. In my view it is preposterous that the Australian Electoral
Commission’s lawyers can recommend a course of legal action and then when this is followed to
oppose the jurisdiction of the Court. In my view this kind of conduct indicates that the Australian
electoral commission employs, so to say, dirty tactics to railroad genuine objections made and use
the Courts as a weapon in its favour and ensure a gross denial of any FAIR and PROPER
elections being held. Elections are not completed unless each and every objection has been
appropriately resolved.
Having elections conducted in breach of constitutional and other relevant legal provisions also
denied me of my right to have representatives elected in appropriate manner. Indeed the rest of the
community was robbed by this also of their representatives being properly elected.
It is a very serious issue, indeed undermining the entire democratic system where those put in
charge of holding FAIR and PROPER elections are the very one who are abusing and misusing
their position and by this causing untold harm to the general community.
At the time I objected to the incorrect time tables being used, there was the great “children
overboard” issue going on and any delay in holding the election could have made a considerable
difference as to which candidates would have been elected and which political party would have
been successful in the election (purported election) hence, I view, so to say, all stops were pulled
out as to ensure that no matter how unconstitutional and/or illegal the election process was the
election had to proceed, even if it was meaning to deceive the Courts as to its jurisdiction. As Mr
Perter Hanks QC appearing for Australian Electoral Commission was involved in by making false
and misleading statements to the Court (Marshall J) even to have purportedly quoting an authority
having substituted some words of the quotation without making this known to the trial judge, as I
havewell documented in my material filed in past litigation.
It is my view that this seriousness of election fraud, as I view it to be, demands a ROYAL
COMMISSION
as after all, where elections can be tempered with as to seek to ensure that
certain paries may retain power of government then this is a very serious matter that cannot be
ignored.
No judicial officer should accept that even those kind of allegations are left unattended and ought
to ensure that one way or another they are properly investigated, as after all judges are not just
judicial officers but have sworn to uphold the law and remain themselves OFFICERS OF THE
COURT
.
The risk any judicial officer may take is to ignore matters to be reported to be properly
investigated may risk to be himself/herself failing to adhere to sworn duties toward the Crown to
uphold the law, etc.
This ADDRESS OF THE COURT could not possibly detail all matters in full detail, and is
neither intended to do so, as it would take thousands of pages to do so, but already ought to give
ample of indications that the purported elections were never constitutionally and legally valid.
Thereby, I am aggrieved also that I am, as like other Australians, robbed of having a duly elected
government, both in 2001 and in 2004.
We may never have had the murderous armed invasion into the sovereign nation Iraq, had an
election in 2001 been rescheduled to be held according to constitutional and other relevant legal
provisions as this may have resulted to a different political party being in power who would not
have been, so to say been warmongering.
Neither would likely many unconstitutional legislative provisions have been enacted and as such
the conduct of the Australian Electoral Commission, so its lawyers, to prevent a valid election to
be held is a very serious matter then cannot and neither must be ignored.

The Commonwealth Director of Public Prosecutions has placed before the Court matters as to
seemingly enforce Commonwealth law, and so this court then is placed in a position to address
matters in a appropriate judicial manner, even so this might not particularly be what the
Commonwealth Director of Public Prosecutions had anticipated, or had in mind.

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The fact that the Printer had on some of the delivery documents recorded that the despatch of the
Special Gazette was on 9 October 2001, even so the very document shows to have been printed on
10 October 2001 also may indicate that on the face of the evidence already presented during past
proceedings there is justified concern that something serious untowards in elections occurred.
Only a unbias proper investigation may establish the truth of matters.

On 2 November 2001 I appeared before Finkelstein J of the Federal
Court of Australia and His Honour then directed for me to serve
documents for the first respondents also on the Australian
Government Solicitors. This I did on 2 November 2001 and I filed an
Affidavit sworn 5 November 2001 setting out what had occurred and
the acceptance by the Australian Government Solicitors of service for
all respondents.

During a subsequent hearing before Marshall J of the Federal Court of Australia, Mr Peter Hanks
QC appeared as Australian Government Solicitors counsel and made known to the Court that he
was representing the Australian Government Solicitors, the Commonwealth would accept any
order made and didn’t disclose anything he ought to have disclosed to the Court as to that the
AGS had not notified the first Defendants. He certainly didn’t notify the Court of allegedly having
been unable to receive instructions from the Governor-General, as Mr Stephen Lucas, Senior
Executive Lawyer with Australian government Solicitors claimed in his 9 August 2002 faxed
letter to me. That letter was in view of my appearance before the JSCEM hearing in Windsor
Hotel on 12 August 2002 as a witness, in view of past correspondence.

Mr Lucas in that 9 August 2002 letter then claimed that the AGS didn’t accept service for the
Governors.

Obviously, if Mr Lucas had been correct, which I contest, then it would have been required that
Mr Peter Hanks QC would have contested my 5 November 2001 affidavit material of service as to
have made known to the Court that the AGS contested it. This was not done.
Neither did Mr Peter Hanks QC advise the Court that the AGS had been unable to obtain
instructions of the Governor-General!

As such, the UNCONTESTED evidence before the Court then was that the AGS had accepted
service for all Respondents.

While I am aware that there might be an issue that proper service ought to be done upon all
Respondents themselves, in the circumstances of limited time etc, it appears to me that His
Honour Finkelstein sought to have such urgent matter speedily done with, and as such, I view,
was entitled to make known that service on the AGS, if they accepted, would be sufficient.

The AGS simply could have refused to accept such service, this they didn’t and neither, as stated
previously, did they object on 7 November 2001 before Marshall J about the service upon them.

The AGS could have contacted all first Defendants and then all first Defendants could have
simply decided to have their own legal representatives, in view, as now appears to me, there was a
conflict of interest for the AGS to act for the AEC and for all first Defendants and the
Commonwealth.

This, as all first Defendants had issued “writs” that stated “according to law”, whereas the AEC
and the Commonwealth sought to have elections in breach of law and the writs were incorrectly
drafted.

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Page 56 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

From the transcript at pages 8 and 9 of proceedings before Finkelstein J on 2 November 2001
Federal Court of Australia!;

MR SCHOREL-HLAVKA; “I’m not necessarily, at the moment, disputing the election.
I’m disputing the writs
.”

HIS HONOUR; I understand.

MR SCHOREL-HLAVKA: So that’s different, sir. At least nobody say I’m crying sour
grapes for not winning whatever an election ---

HIS HONOUR; Because you haven’t lost yet.

MR SCHOREL-HLAVKA; That’s right. I haven’t lost yet. I’m doing before it.

It must therefore be clear that I was contesting the validity of the writs, not the election(s) itself!

As such, Marshall J on 7 November 2001 arguing otherwise clearly ignored the true issues before
the Court.

Extensive communication occurred since the proceedings with the Solicitor-General of Tasmania
but to no avail in the end.

It appears that there is a general misconception that as the election was held that is the end of the
“injunction” sought!

I offcourse have no such view.

The issue is that I contested the writs and I requested the court to order the reissueof the writs!
As such, if the writs are unconstitutional/unlawful and are ULTRA VIRES, then it makes not one
iota difference if any purported election had been held as simply the purported election was
“technically” never occurring.

The validity of the elections is pending upon the validity of the writs!

As such, if I can establish that the writs are defective and so ULTRA VIRES, then that is the
completion of my case and my injunction sought then is as valid now as was then!

The injunction also sought other relief about issues that are still current, such as, to stop the
Australian Electoral Commission to publish false and misleading details.

.V1145/2001 7.11.01 P-21

Commonwealth of Australia

Commission has the option of making a new date which (indistinct) prime
minister or return the writs. That was not done. So that's what I'm saying. The
Australian Electoral Commission also in my view had no power to close the
offices on Saturdays and Sundays.
5
HIS HONOUR: Have you seen Mr Hanks' written outline? Can I direct you
to paragraph 14 of that, page 3. He raises issues there as to why section 383 in
the circumstances of this case doesn't invest this court with jurisdiction. What

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

is your response to what is said there?
10
MR SCHOREL-HLAVKA: Well, your Honour, section 353 is, as I stated - - -
HIS HONOUR: As I take it, you rely on section 383.
MR SCHOREL-HLAVKA: I have here, your Honour. 15
HIS HONOUR: And Mr Hanks says why, in short compass, you can't. I'm
just interested in your response to that.
MR SCHOREL-HLAVKA: Your Honour, it is my view that section 353 is 20
subject to the alteration made since by parliament by section 383.
HIS HONOUR: Yes, I understand that.
MR SCHOREL-HLAVKA: Therefore I am saying that the validity of the 25
election in itself cannot be held (indistinct) Australian electoral commissioner
can ignore the rules of law of the Electoral Act. Therefore I'm saying that is
not the validity of the election in itself which is disputed after an election has
been held. Then you dispute the validity. What I am disputing is the process,
your Honour, and the conduct. 30
HIS HONOUR: I understand.

I repeat;

MR SCHOREL-HLAVKA: Therefore I am saying that the validity of the 25
election in itself cannot be held (indistinct) Australian electoral commissioner
can ignore the rules of law of the Electoral Act.Therefore I'm saying that is
not the validity of the election in itself which is disputed after an election has
been held.
Then you dispute the validity. What I am disputing is the process,
your Honour, and the conduct.
30
HIS HONOUR: I understand.

Further;

.V1145/2001 7.11.01 P-22

Commonwealth of Australia

governor-general?
MR SCHOREL-HLAVKA: What I'm saying, I have sought- request, that is
called, because it may not be an order - request the governor to reissue writs.
That can only be a request but- - - 5
HIS HONOUR: Are you seeking that I make any orders against any governor
or the governor-general?
MR SCHOREL-HLAVKA: No, I understand that. 10
HIS HONOUR: You're not?
MR SCHOREL-HLAVKA: No, I understand that. I have it in my wording
"request". I use that wording "request". But what I'm saying is that the 15
injunctions for 383(1)(b), "in any case the electoral commissioner" - it is very
clear that the parliament understood that if the Australian Electoral
Commission is in breach of this act, someone can go to court and take them to
account.
20
HIS HONOUR: No, what's said there is that they can take a case.
MRSCHOREL-HLAVKA: I beg your pardon?
HIS HONOUR: What's meant there is that they have the standing to bring the 25
case here.
MR SCHOREL-HLAVKA: Sorry, I can't hear your Honour.

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

HIS HONOUR: It simply indicates that an injunction may be sought to 30
restraincertain conduct on the application of, that is, the initiative of, a
candidate or the Electoral Commission.
MR SCHOREL-HLAVKA: That's right. Now, I'm saying here on the
applicant of the candidate, which I can, right? 35
HIS HONOUR: Yes.
MR SCHOREL-HLAVKA: As I said previously, the Australian electoral
commissioner has only been given power under this act to act in accordance to 40
the act. Therefore I'm saying, your Honour, where the Australian Electoral
Commission now is in making an offence against this act or any other law of
the Commonwealth, which is the Constitution, which I quoted before in my
affidavit, therefore this court has the power to make an order for an injunction
against the Australian electoral commissioner not to proceed with an election. 45
HIS HONOUR: But if I had jurisdiction to do that, why would I do it in
circumstances where all the Australian Electoral Commission is doing is
complying with a timetable that resulted from acts made by governors and the
.V1145/2001 7.11.01 P-23

Commonwealth of Australia

governor-general?
MR SCHOREL-HLAVKA: No. The electoral commissioner is by law bound
to apply to law, not to a political decision, therefore his priority is an obligation
to the legislator, which is the act. 5
HIS HONOUR: But thesteps that have been taken in accordance with the
timetable that has been made has got nothing to with the Australian Electoral
Commission.
10
MR SCHOREL-HLAVKA: No, but a timetable of the writs itself, as I
indicated before, is a political decision, notan executive decision.
HIS HONOUR: But it's not a decision by the Australian Electoral
Commission. 15
MR SCHOREL-HLAVKA: No, but therefore he is not bound by it when it
conflicts with the Australian Electoral Act. So if the Electoral Act dictates a
different version, then the Australian Electoral Commission is bound to comply
with the act, because otherwise the prime minister could say, "I'll have an 20
election tomorrow."
HIS HONOUR: So you say that the Australian Electoral Commission is
engaging in conduct which constitutes a contravention of the act - - -
25
MR SCHOREL-HLAVKA: Exactly.
HIS HONOUR: -- - by continuing on with the election in circumstances
where the steps taken by the governors and the governor-general were illegal?
30
MR SCHOREL-HLAVKA: And also by engaging in conduct which is not by
the writ but having closed its offices over Saturdays, Sundays. Despite having
been notified by me that they were breaching the act, they have continued to do
so. There are various other issues I have raised, such as having people
canvassing on the property of the electoral office commission when people are 35
doing voting. So they are canvassing there on the property, which is improper.
So there are a quite a few issues that I've raised, but basically what I’m saying
is this court has jurisdiction because the Australian electoral commissioner is
not bound by the writ in itself because that can be withdrawn. His prima facie 40
responsibility is to the legislator, to the act. I believe that whether or not the
writs are having a date is a secondary issue, but it could not override the

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commissioner's obligation to the parliament, because if this court were to
accept that, then what I'm saying is that a political decision of one person,
which happened to be the primeminister, would override the wishes of the 45
legislators which is done by the joint parties.

The writs do no more but to facilitate the election process and must facilitate the election process
within the terms of legislated provisions applicable. The Governor-General has no Constitutional
Powers whatsoever otherwise to direct the holding of any elections in breach of legislative
provisions. The Governor-General as such is bound by constitutional limitations to issue writs
according to law”. Likewise so the Governors, where they stated in the writs “according to
law
”.

Perhaps the following may indicate the bias of the Court in the proceedings;

.V1145/2001 7.11.01 P-20

Commonwealth of Australia

HIS HONOUR: I understand what you're talking about. I want to be
addressed on jurisdiction.
MR SCHOREL-HLAVKA: Yes. So - - - 30
HIS HONOUR: Don't steal the show.
MR SCHOREL-HLAVKA: What I - - -
35
HIS HONOUR: This is my show- - -

It doesn’t make sense to me for any judge to make such a comment!

Then the same with Finkelstein J on 2 November 2001;

.V1145/2001 2.11.01 P-8

Commonwealth of Australia

HIS HONOUR: But if you speak to the Australian Government Solicitors 30
office, then you probably will avoid the need of going to the governor's house
or sending the process server - - -
MR SCHOREL-HLAVKA: Yes, I understand that, your Honour.
35
HIS HONOUR: If you try and do that, you'll probably get arrested or
something.

I repeat;

HIS HONOUR: If you try and do that, you'll probably get arrested or

something.

That my 5 November 2001 sworn Affidavit that was before Marshall J
stated (and this was not contested by the Australian Government
Solicitors at the time of the hearing);

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

4. That for the above stated, I filed the Form 4 on the 2nd

day of

November 2001 without any provisions of ORDERS SOUGHT,
albeit I indicated in the supportive affidavit, sworn on the 2nd
day of November and filed the same day, that I sought
certain orders, such as indicated in paragraph 8 and 16 of the
said affidavit.

5. That His Honour indicated that it was better to serve the
Australian Government Solicitors as quick as possible, and as
the hearing concluded about 4 PM (thereabout), I attended to
the Australian Government Solicitors office (thereafter), and
was advised that the Director would attend to me. I asked for
the name of the Director to be written down for me, and I
was handed a note, which appears to show the name of the
Director to be Mr Martian Brulkand.

6. That Mr Martian Brulkand referred to the Governors being
stated as respondents, and I indicated that I sought the
Australian Government Solicitors to accept service for the
Governor General and all Governor’s of the States in view
that the said Governors all acted upon instructions of the
Governor General to issue Writs. I further indicated that the
heading included for the Commonwealth of Australia also for
the Australian Electoral Commission. Upon this, the Director
accepted service of the documents, which were filed on the
2nd

day of November 2001 and were before His Honour during
the EX PARTE proceedings.

It is obvious that neither on 2 November 2001 or during the
proceedings before Marshall J the Australian Government Solicitors
indicated not accepting or having accepted service for all
Respondents!
Indeed, the claim by Mr Lucas that he couldn’t obtain instructions
from the Governor-General rather indicates that the AGS accepted
service for the 1st Defendants!
However, if Mr Lucas claim was true of not having been able to obtain
instructions from the Governor-General then clearly all Mr Peter
Hanks QC had to do was to inform the Court of thison 7 November
2001. But he did nothing of that sort!

.V1145/2001 2.11.01 P-7

Commonwealth of Australia

MR SCHOREL-HLAVKA: The form 4 indicates that I am seeking,
your Honour- - -
HIS HONOUR: If you want to tell people that you'll be asking for final relief 5
on that day, you should say so. If you're going to ask for directions on that
day, you should say so. If you want to ask for interlocutory injunctions on that
day, you should say that, because when the people come along to court, they
must know what it is is going to happen on that day.
10

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

MR SCHOREL-HLAVKA: I'm seeking in here that the writs be declared
defective and void and of no effect. I've also asked then, if the court does make
that step - or I've indicated in my affidavit that I would seek orders by this
court, if that's feasible, that those people who have done postalvotes et cetera
maybe the court may make a special order to say that those votes still will be 15
acceptable for the re-issue of the writ. I don't know whether that is possible
within the powers of the court. But we're trying to do is to avoid a lot of
problems which I've tried to do for the last two weeks with the Prime Minister,
if he had done it.
20
HIS HONOUR: I suppose if you have the election put off for a couple of
weeks, that'll cause a few problems.
MR SCHOREL-HLAVKA: I look at it this way, your Honour. If there is no
doubt, and the election goes ahead at a huge cost and then the parties already 25
knowing about whoever is going to lose then - "hey, listen, he gave us a nice
trigger. We can go to court." Then we have to have a new election. That's
even worse. So it is from two bad positions, I think this is the best way to
solve it before we have the election. Now, your Honour, if you wish, I can also
of course file those documents on Monday in the High Court. But we have 30
then two courts -that whichever is applicable. I don't think that is sensible
because ultimately this matter has to be heard. If it's not by the Federal Court,
it would be the High Court. But if it's after the election, it would be the High
Court as court of dispute of return. But all I'm seeking, your Honour, at the
moment is that if your Honour believed that Mr Schorel-Hlavka seems to have 35
at least a genuine basis there what he's arguing on - I'm not asking you to judge
whether or not am I right.
HIS HONOUR: I won't.

I repeat;

MR SCHOREL-HLAVKA: I'm seeking in here that the writs be declared

defective and void and of no effect.

.V1145/2001 7.11.01 P-19

Commonwealth of Australia

I may invite you to go to page 10 of the affidavit that was sworn on
2 November. At the bottom part of the page it shows the Associated
Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161.
HIS HONOUR: 2 November. Was that the one that was filed with the 5
original application?
MR SCHOREL-HLAVKA: That's correct, your Honour.
HIS HONOUR: What page again? 10
MR SCHOREL-HLAVKA: Number 10, your Honour, and I'm referring to the
lower part of that page, Associated Dominions. The court there painstakingly
referred to dates and also it says, if I may quote a short paragraph:
15

In the present case the documents served allowed for a period of 14
days next ensuing after 2 May 1948. The period would expire at
midnight 16 May 1948. The document ought to be dated 30 April,
but it was served on 3 May. A period of 14 days from 3 April
would expire at midnight on 14 May, but a period of 14 days from
20
3 May would not expire until midnight 17 May. Therefore the date

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

of the notice in the act means the date which the document bears on
its face.

Your Honour - - - 25
HIS HONOUR: I understand your argument.
MRSCHOREL-HLAVKA: What the court is saying.
30
HIS HONOUR: Excuse me. Don't speak while I'm speaking to you.
MR SCHOREL-HLAVKA: Sorry.
HIS HONOUR: I understand your argument. I understand what it was saying 35
about the timing. Can you now answer Mr Hanks'sjurisdictional issue.
MR SCHOREL-HLAVKA: So, your Honour, what I am saying is that -so
with the jurisdiction is that issue, right. I've covered it well. What I'm saying
is that even so those writs may have given certain directions to the Australian 40
electoral commissioner, under the act he had to act. That is how he is
empowered. He failed to act in accordance to the legal provisions of the act.
So it is my view that the Australian electoral commissioner could have gone
back to the prime minister and indicated when the Australian Electoral
Commission was notified by me to have the writs withdrawn and reissue new 45
ones with the appropriate date. The Electoral Commission however decided in
its wisdom not to do so, the prime minister either.
It's my view, your Honour, that irrespective of what stated in the act, the
.V1145/2001 7.11.01 P-20

Commonwealth of Australia

electoral commissioner must act in accordance to the act, because the writs are
issued by the prime minister, which is a political decision, not an executive
government decision. Therefore it would be an offence to the legislators if a
prime minister of the day, whether caretaker prime minister or not, could
short-cut an election in breach of what the parliament has decided. 5
The decision the prime minister makes of the setting of the election date, the
setting of the nomination date, has nothing to do with executive government.
The only decision he as a prime minister makes is that he must call an election
within a certain period. But when hecalls it is purely a political decision. 10
Therefore the Australian electoral commissioner has an obligation to the
government, to the parliament, to the legislation, to ensure that if there is
something wrong with the writ he then will not act according to the writ but
return those writs and request the prime minister to maybe reissue them, but he
cannot act contrary to the act. 15
Now, a further issue is, your Honour -what I'm trying to indicate is this: I
shall show that the Electoral Commission has undermined also the provisions
of the act by closing on Saturdays and Sundays. Hypothetically, if the prime
minister would have called an election on 23 December - - - 20

I repeat;

What I'm saying
is that even so those writs may have given certain directions to the Australian 40
electoral commissioner, under the act he had to act. That is how he is
empowered. He failed to act in accordance to the legal provisions of the act.
So it is my view that the Australian electoral commissioner could have gone
back to the prime minister and indicated when the Australian Electoral
Commission was notified by me to have the writs withdrawn and reissue new 45
ones with the appropriate date.

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

Therefore the Australian electoral commissioner has an obligation to the
government, to the parliament, to the legislation, to ensure that if there is
something wrong with the writ he then will not act according to the writ but
return those writs and request the prime minister to maybe reissue them, but he
cannot act contrary to the act.
15

Before both Marshall J and Finkelstein J of the Federal Court of
Australia I set out that the reissue of writs was what was required.

Because the governors and governor-General had issued the writs, it
seems correct to have them included in the case as Defendants.

The Governor and the governor-General each pursued the writs to be
issued “
according to law”. As such, it appears that there was no
intention by either the governor-General and/or any Governor to
issue a writ in breach of applicable legislative provisions.

There is however a further matter to be considered;

The publication of the writs, the timing of issue of the writs etc.

From the submission of Australian Electoral Commissioner Mr Becker
to the JSCEM it is clear that the AEC preparedthe DRAFt writs for the
Governor-General merely upon having received a “press release” and
not at all first to have official notification and awaiting the
publication of the proclamation of the prorogue of the parliament and
the Dissolution of the House of Representatives.

As such, there was no official form of preparation for the DRAFT writs
to be correct. The AEC as such rather then to check dates validity
according to legislative provisions have admitted to the JSCEM they
rely upon the issue of a “press release”.

In my view, the governor-General ought to be well entitled to accept
that where the AEC prepares the DRAFT writs then the AEC would be
competent to check the correctness of any time table according to
applicable legislative provisions. Also, that as the Commonwealth (so
the AEC) has the
modus operandi of the Senate elections then the AEC
would be competent to ensure that the elections dates were
appropriately to consider a coincidental election for the Senate.

What is however shown is that the AEC was incorrectly publishing in
the Pocket Handbook of Elections on Page 27 the incorrect State
legislations, not those relating to Senate elections but State ordinary
elections. As such, the AEC lacking apparently any internal check and
balancing system has gone about for years without realising it was
referring to the incorrect electoral laws.

The Prime Minister of the Day, calling an election relies upon the
information published by the AEC and as this information was false

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For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

and misleading, also on the AEC website, the Candidate Handbook
etc, the AEC not only misled the public, the Commonwealth and the
Government but also itself.

Mr Becker as Australian Electoral Commission did apparently
everything but to organise the conduct of elections according to law.

Even the closure of electoral offices during the weekends and public
holidays was contrary to the legislative provisions of “
shall not be less
than” as by this in 1983 the by-election was reduced by a massive 7
days!

However, as I see it, the gross incompetence wasn’t just with the
AEC but also with other Departments.

For example I discovered that Gazette’s were not at all simutaniously
issued throughout the Commonwealth, rather that in some States no
Gazette was publishe at all as such.

Take for example Special Gazette S421 that was to publish the
Proclamation of the Prorogue of the parliament and the dissolution of
the House of Representatives. It was never published as such in
either New South Wales or Tasmania!

It must be clear that writs issued by the Governor-General are on a
State basis, and as such, the publication of the Special Gazette must
be done on a State by State basis (Territories are quasi States).

WATSON v. LEE (1979) 144 CLR 374

"Where any statutory rules are required by any Act to be published or
notified in the Gazette, a notice in the Gazette of the rules having been
made, and of the place where copies of them can be purchased, shall be
sufficient compliance with that requirement." (at p379)

6. The primary means of notifying the terms of a regulation which has been
made is by its publication in full in the Gazette. What is required by HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.html" s. 48
(1) is notification of the regulation, not of the fact of its making or of the
date of its making. In my opinion, the notification of a regulation involves
the bringing to notice of its actual terms. Thus, in my opinion, HYPERLINK
"http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s48.html" s. 48 (1) of
the HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/" Acts
Interpretation Act really requires the terms of the regulation to be
published in theGazette. It must be accepted that such publication places the
citizen in the position of being able to inform himself of the terms of the
law by which he is to be bound.(at p379)

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Meaning, that unless the Proclamation can be proven to have been provided for sale to the citizen,
there was never any publication on 8 October 2001! If there no publication on 8 October 2001,
then the issue of the writs also was not constitutional possible!

As you are well aware, in view of your evidence given to the JSCEM) I am currently having
litigation against the Australian Electoral Commission, the Commonwealth and all Governors as
well as the Governor-General before the High Court of Australia!

Again also;

It must be accepted that such publication places the
citizen in the position of being able to inform himself of the terms of the
law by which he is to be bound.

Meaning that the Gazette must be actually published in every Member State to be effective! Writs
are being issued for each member State separately and can’t be constitutional valid unless first a
writs in regard of the Proclamation was first Gazetted in that member State.
Details now obtained under the FOI Act, albeit with about 8 months delay, shows that at no time
was Special Gazette S421 containing the Proclamation actually published in New South Wales or
Tasmania! InCanberra it was on 9 October 2001, In Victoria 10 October 2001, and so on!

As such, each and every writs was issued PRIOR TO the proclamation being actually published.

PM - Monday, 19 September , 2005 18:42:00

Minchin renews voluntary vote call

MARK COLVIN: The Federal Minister for Finance, Nick Minchin, has renewed his call for
voluntary voting in Australia.

And

ALEXANDRA KIRK: But the Prime Minister hasn't sought fit to do so, so far.

NICK MINCHIN: Well his personal view, I know, and he's expressed it publicly, is that he
thinks you shouldn't be guilty of an offence for not voting.

ALEXANDRA KIRK: But he accepts the system as it is.

NICK MINCHIN: Well it's a question of whether the Coalition parties and Members of
Parliament are prepared to agree that when we go to the next election, we should propose to
the people that you no longer be forced to vote and then if we're successful at the election,
then we look to introducing that in the next term of parliament.

ALEXANDRA KIRK: Has the Prime Minister given you any indication that he'd be willing
to do that?

NICK MINCHIN: We haven't discussed it. I think it's a matter of letting the debate ensue,
and testing the waters, and seeing what the views are within the Coalition.

ALEXANDRA KIRK: And have any of your colleagues in the Coalition given you any
cause for optimism?

NICK MINCHIN: Oh there are many, many Liberals who share my view, from the Prime
Minister down, so I hope we can build a consensus around what is a very liberal position on
this issue, and that we can give Australians the right that New Zealanders have.

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www.Geography.about.com

Compulsory Voting

Over twenty countries have some form of compulsory voting which requires citizens to
register to vote and to go to their polling place or vote on election day.
With secret ballots, it's not really possible to prove who has or has not voted so this
process could be more accurately called "compulsory turnout" because voters are
required to show up at their polling place on election day.
One of the most well-known compulsory voting systems is in Australia. All Australian
citizens over the age of 18 (except those of unsound mind or those convicted of serious
crimes) must be registered to vote and show up at the poll on election day. Australians
who do not vote are subject to fines although those who were ill or otherwise incapable
of voting on election day can have their fines waved.
Compulsory voting in Australia was adopted in the state of Queensland in 1915 and
subsequently adopted nationwide in 1924. With Australia's compulsory voting system
comes additional flexibility for the voter - elections are held on Saturdays, absent voters
can vote in any state polling place, and voters in remote areas can vote before an
election (at pre-poll voting centers) or via mail.
Voter turnoutof those registered to vote in Australia was as low as 47% prior to the 1924
compulsory voting law. In the decades since 1924, voter turnout has hovered around 94-
96%.
In 1924, Australian officials felt that compulsory voting would eliminate voter apathy...
"Compulsory voting would cause in a short time...a wonderful improvement in the political
knowledge of the people" (Jaensch, 20)
However, compulsory voting now has its detractors...
"Compulsory voting has not contributed to the serious political education of the
electorate; it may have even discouraged it." (Jaensch, 20)
In their Fact Sheet on Voting, the Australian Electoral Commission provides some
arguments in favor and against compulsory voting.

Arguments used in favor of compulsory voting:

Voting is a civic duty comparable to other duties citizens perform
(e.g. taxation, compulsory education, or jury duty).
Parliament reflects more accurately the "will of the electorate."
Governments must consider the total electorate in policy formulation
and management.
Candidates can concentrate their campaigning energies on issues
rather than encouraging voters to attend the poll.
The voter isn’t actually compelled to vote for anyone because voting
is by secret ballot.

Arguments used against compulsory voting:

It is undemocratic to force people to vote - an infringement of liberty.
The "ignorant" and those with little interest in politics are forced to
the polls.
It may increase the number of "donkey votes" (bad votes that don't
get counted).
It may increase the number of informal votes (ballot papers which
are not marked according to the rules for voting).

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It increases the number of safe, single-member electorates - political
parties then concentrate on the more marginal electorates.
Resources must be allocated to determine whether those who failed
to vote have "valid and sufficient" reasons.

While it may be argued that the Commonwealth simply followed the path of the States as to
introduce compulsory voting, this cannot be excused as such. The States have legislative powers
in regard of religion, the Commonwealth of Australia is prohibited this power. Hence, the
Commonwealth of Australia being specifically denied constitutional powers to compulsory have
registration and voting therefore cannot follow what the States may have done.

The following 27-10-2001 correspondence (and the subsequent 18-11-2001, 17-12-2001 and 12-
8-2002 correspondence being some others of a range of correspondences) being before the
litigation commenced, and any purported election was held, may indicate that the Defendant did
provide a considerable amount of information from onset the Australian Electoral Commissioner
but he might as well have forwarded blank pages as it was being ignored. This, from a person who
is appointed to ensure that elections are FAIR and PROPER.

Re-RELIGIOUS OBJECTION

As stated above, the definition “religious objection” is as such unconstitutional (Section 116 of
theConstitution) unless it includes secular objections.

http://www.vaccineinfo.net/exemptions/relexemptlet.shtml

Hints for Religious Exemptions to Immunization

Please read the text below before you download, print, or use the sample religious
exemption letter and support materials provided in the following link:

Sample Religious Exemption Letter and Supporting Documentation

Refer to the statutes. The laws require that immunization must conflict with the tenets and
practices of a recognized or organized religion of which you are an adherent or member.

However, the law does not require you to name a religion at all. In fact, disclosing
your religion could cause your religious exemption to be challenged.

And

Some schools and daycares attempt to require you to give far more information than
required by law.
You are not required by law to fill out any form letters from a school or
daycare. The law allows you to submit your own letter and the letter only needs to meet the
bare requirements of the law. Keep it simple; do not feel you need to describe your
religious beliefs here as that also is not required by law.

And

Many times, when a school or day care questions your exemption, they are merely
unfamiliar with the law or trying to coerce you to go against your beliefs by
deliberately misrepresenting the law. They are betting on the fact that you don't know
your rights.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=398&invol=333

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U.S. Supreme Court

WELSH v. UNITED STATES, 398 U.S. 333 (1970)

398 U.S. 333
WELSH v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 76.
Argued January 20, 1970
Decided June 15, 1970

Petitioner was convicted of refusing to submit to induction into the Armed Forces despite his
claim for conscientious objector status under 6 (j) of the Universal Military Training and Service
Act. That provision exempts from military service personswho by reason of "religious training
and belief" are conscientiously opposed to war in any form, that term being defined in the Act as
"belief in a relation to a supreme Being involving duties superior to those arising from any human
relation" but not including "essentially political, sociological, or philosophical views or a merely
personal code." In his exemption application petitioner stated that he could not affirm or deny
belief in a "Supreme Being" and struck the words "my religious training and" fromthe form. He
affirmed that he held deep conscientious scruples against participating in wars where people were
killed. The Court of Appeals, while noting that petitioner's "beliefs are held with the strength of
more traditional religious convictions," concluded that those beliefs were not sufficiently
"religious" to meet the terms of 6 (j), and affirmed the conviction. Petitioner contends that the Act
violates the First Amendment prohibition of establishment of religion and that his conviction
should be set aside on the basis of United States v. Seeger,380 U.S. 163 , which held that the test
of religious belief under 6 (j) is whether it is a sincere and meaningful belief occupying in the life
of its possessor a place parallel to that filled by the God of those admittedly qualified for the
exemption. Held: The judgment is reversed. Pp. 335-367.
404 F.2d 1078, reversed.

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL, concluded that:
This case is controlled by United States v. Seeger, supra, to which it is factually similar.
Under Seeger, 6 (j) is not limited to those whose opposition to war is prompted by
orthodox or parochial religious beliefs. A registrant's conscientious objection to all war is
"religious" within the meaning of 6 (j) if this [398 U.S. 333, 334] opposition stems from
the registrant's moral, ethical, or religious beliefs about what is right and wrong and these
beliefs are held with the strength of traditional religious convictions. In view of the broad
scope of the word "religious," a registrant's characterization of his beliefs as "nonreligious"
is not a reliable guide to those administering the exemption. Pp. 335-344.
MR. JUSTICE HARLAN concluded that:
1. The language of 6 (j) cannot be construed (as it was in United States v. Seeger, supra,
and as it is in the prevailing opinion) to exempt from military service all individuals who
in good faith oppose all war, it being clear from both the legislative history and textual
analysis of that provision that Congress used the words "by reason of religious training
and belief" to limit religion to its theistic sense and to confine it to formal, organized
worship or shared beliefs by a recognizable and cohesive group. Pp. 348-354.
2. The question of the constitutionality of 6 (j) cannot be avoided by a construction of that
provision that is contrary to its intended meaning. Pp. 354-356.
3. Section 6 (j) contravenes the Establishment Clause of the First Amendment by
exempting those whose conscientious objection claims are founded on a theistic belief
while not exempting those whose claims are based on a secular belief. To comport with

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that clausean exemption must be "neutral" and include those whose belief emanates from
a purely moral, ethical, or philosophical source. Pp. 356-361.
4. In view of the broad discretion conferred by the Act's severability clause and the
longstanding policy of exempting religious conscientious objectors, the Court, rather than
nullifying the exemption entirely, should extend its coverage to those like petitioner who
have been unconstitutionally excluded from its coverage. Pp. 361-367.

Again

4. In view of the broad discretion conferred by the Act's severability clause and the
longstanding policy of exempting religious conscientious objectors, the Court, rather than
nullifying the exemption entirely, should extend its coverage to those like petitioner who
have been unconstitutionally excluded from its coverage. Pp. 361-367.

http://members.macconnect.com/users/k/knelson/co/co.html

"By Reason of Religious Training and Belief..."
A History of Conscientious Objection and Religion during the Vietnam War
By Karl D. Nelson

The Development of Conscientious Objection Through World War I

Since the Protestant Reformation, most conscientious objectors have come from the pacifist strain
of Christianity,which was embodied in the "historic peace churches." These churches, emulating
the early Christian church's pacifism, brought conscientious objection to America in the colonial
period. American military and political authorities have frequently granted exemptions to these
objectors, although before the Civil War such policy was made at the local level. Through World
War I, only members of the historic peace churches qualified for conscientious objector status.

Early Pacifism

From its inception, the notion of conscientious objection has been tied to religion. The early
Christian church, following Jesus' teachings against killing, appears to have been mostly pacifist.1

The church was even censured for its position. A Roman chastised the Christians in 173 AD:"If
all men were to do as you, there would be nothing to prevent the emperor from being left in utter
solitude and desertion and the forces of the empire would fall into the hands of the most lawless
barbarians."2

The pacifist stance was not entirely unanimous in the church, for tombstones of Christian soldiers
dating to the late second century have been uncovered.3

As time went by, the number of Christians in military service increased, especially after the
Roman emperorConstantine embraced Christianity in 313 AD.

The church, however, still maintained its pacifist character, urging its members not to join the
army and telling military converts not to kill.4

Church leaders excluded those who had killed inbattle from the sacrament of Holy Communion
for three years.5

conscription, faced a difficult choice. Some, undoubtedly, entered the military.

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Others, like St. Maximilian, refused, saying, "I will not be a soldier of this world, for I am a
soldier of Christ."Hewas beheaded.6

The division in the early Christian church on military matters slowly solidified into three basic
positions. One wing remained true to the early church's pacifist convictions. Another group
embraced the "just war" tradition. The third tradition, best viewed in the medieval church-
sanctioned Crusades, embraced war.

As a result of the Protestant Reformation, the pacifist wing of Christendom evolved into what
became known as the "historic peace churches."The most dominant of these churches werethe
Anabaptists, the Brethren, and the Quakers. These sects rejected the institutional Roman church in
favor of the model seen in the early Christian church.

The Anabaptists, a collection of Protestant groups spawned by the Reformation, maintained the
pacifist tradition of first century Christians. Mennonite, Amish, and Hutteritesects rejected those
beliefs and practices of Catholicism and Protestantism that they believedwere not biblically
grounded. Specifically, they rejected infant baptism in favor of adult baptism.

These Anabaptists withdrew from affairs of the state, preferring to live in closed communities
apart from the secular world. They were considered quite unorthodox, and Anabaptist groups have
often been persecuted by Catholics and Protestants alike.7

Another group that is included with the historic peace churches is the Church of the Brethren. The
Brethren share many of the same principles with the Anabaptists. This sect originated much later,
in the early-eighteenthcentury.8

The Society of Friends, commonly called the Quakers, was founded by George Fox in mid-
seventeenth century England. The Quakers emerged from left-wing Puritanism. They minimized
liturgy and emphasized the role of Christ and the grace of God.9

withdraw from society, the

Quakers were politically active.10

Where the Mennonites tended to Mennonites, Brethren and Quakers, although originating in
Europe, represented the majority of pacifists in the United States well into the twentieth century.
The historic peacechurches were traditionally small, unorthodox groups, articulating a consistent
position againstwar. The pacifist position was never in the majority.

Mainstream religious groups rejected the pacifism of the early church and the peace church fringe.
Mainstream churches instead took two different positions, one accepting war and the other
accepting only "just war."

The "just war" idea can be traced back to the first century B.C. Roman pagan Cicero.

Cicero laid out several rules that one could apply in a situation to decide if a given conflict was
just or unjust. His arguments were taken up by Christian philosophers, namely Tertullian, Origen,
Aquinas, Augustine, and later Vitoria, Bellarmine and Suarez. As the theory took shape in the
sixteenth century, it had four elements:the war must be declared by those inauthority; the cause
must be just; the warring states should seek to further good or destroy evil; and, the war must "be
fought by proper means."Other clauses were often added, such as the protection of innocents, and
that war is to be used a last resort.11

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The more militant group of mainstream Christians accepted, and even encouraged, the use of
force for religious reasons. John Ferguson cites an ancient German poem that exalts SimonPeter
for using his sword to defend Jesus on the night he was betrayed.12

This tradition is exemplified in the Crusades. The Crusades, which dominated European and Mid-
East political and religious life from the eleventh to the thirteenth centuries, was a series of wars
with the purpose ofre-capturing Palestine (a "holy land" for Christians, Jews, and Moslems) from
the Moslems. Notonly were these wars blessed by the Catholic Church hierarchy, but a number of
military monastic orders sprang up with the expressed purpose of fighting for Christ.

There is another element in the religious debate on war and peace that runs throughout all three
positions:nationalism. At times, nationalistic issues do more to dictate an individual's response to
a war than religious belief. Ferguson writes, "[t]he historic association of the Christian faith with
nations of commercial enterprise, imperialistic expansion and technological advancement has
meant that Christian peoples, although their faith is one of the most pacifistic inits origins, have a
record of military activity second to none."13

The flag has historically occupiedan important position in the church, and churchmen have
frequently endorsed and approved of warfare.

Conscientious Objection In Early America

Many early immigrants to America sought religious freedom. Among these were some members
of the historic peace churches.14

A few Quakers immigrated from England in 1656, with more to follow.15

Anabaptist immigration came in a number of waves. Dutch and German Mennonites arrived as
early as 1683. Settling in Pennsylvania, Mennonite immigration continued
until 1760. Included in this group were the Amish, a more conservative group within the
Mennonite tradition. Later, large numbers of Russian Mennonites immigrated to America in the
1870s. These Mennonites, many of whom had originally moved to Russia to avoid military
service in Germany, now fled an increasingly unfriendly Czar.16

All of these groups, hoping to avoid the persecution of their beliefs in Europe, were drawn to
America by promises of religious freedom.

1See the "Sermonon the Mount," Matthew, chapters 5-7. Examples of Jesus' teachings that promote the pacifistidea are:"But I say
unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray
for them which despitefully use you, and persecute you"(Matthew 5:44) and "Blessed are the
peacemakers: for they shall be called the children of God."(Matthew 5:9).
2James H. Forest,Catholics and Conscientious Objection(New York: Catholic Peace Fellowship, pamphlet, 1981).
3Ibid.
4John Ferguson, War and Peace in the World's Religions(New York: Oxford University Press, 1978), 103-4.
5Forest, Catholics and Conscientious Objection.
6Ibid.
7For more information on Anabaptists, see Kenneth Scott Latourette,A History of Christianity(New York:Harper and Brothers, 1953),
chapter XXXIV.
8Ibid., 786.
9Sydney E. Ahlstrom, A Religious History of the American People(New Haven:Yale University Press, 1972), 177.
10Ferguson,War and Peace,113.
11Ibid., 103-104, 110-111.
12Ibid.,106.

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13Ibid.,122.
14Moskos and Chambers,New Conscientious Objection,25.
15Lillian Schlissel, comp.,Conscience in America: a Documentary History of Conscientious Objection in America, 1757-1967(New
York : Dutton, 1968), 17.
16Ahlstrom, Religious History,232-234, 753.

The following is from the Victorian Hansard in regard of parliamentarian debates relating to
religious objections, etc.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=ASSEMBLY&speech=4604&activity=Second+Reading&title=JURIES+BILL&date
1=15&date2=March&date3=2000&query=true%0a%09and+%28+data+contains+'RELIGIOUS'
%0a%09and+data+contains+'OBJECTION'+%29%0a
Title

JURIES BILL

House

ASSEMBLY
Activity Second Reading
Members NARDELLA
Date

15 March 2000

Page

364

Mr NARDELLA (Melton)--

The other exemption is religious dispensation. Again it is important. Some of my
constituents who were brethren based in Melton came to see me about the bill. They wanted
to maintain the dispensation for people like themselves who have a firm religious belief
about not serving on juries. Again I believe that is appropriate and I am happy to see that
provision remain.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=ASSEMBLY&speech=23768&activity=Second+Reading&title=EDUCATION+%28
AMENDMENT%29+BILL&date1=21&date2=October&date3=1998&query=true%0a%09and+
%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a

Title

EDUCATION (AMENDMENT) BILL

House

ASSEMBLY
Activity Second Reading
Members MILDENHALL
Date

21 October 1998

Page

608

Mr MILDENHALL (Footscray)--

The Age editorial of 24 February probably got the balance right. The latter part of it
says:

A pluralist society such as ours demands more than freedom of religion and freedom
from state-imposed religion. It requires respect for diversity, opportunity to exercise
choice and tolerance of different faiths.

It would be wrong, for example, for schoolchildren to be compelled to take part in
religious observances against their parents' wishes. The law makes it clear that such
participation must be voluntary. On the other hand, Australia's Christian heritage

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cannot be erased or unduly confined. And such festivals as Christmas and Easter
have in reality become events of popular culture as much as religious celebrations.

The notion that state schoolchildren whose parents and teachers so wish should not
be allowed to take part in an inoffensive Easter or Christmas pageant in a church hall
because a few parents object is an affront to commonsense and reasonable tolerance.
If the law is indeed so restrictive as to make such a free choice and popular event
illegal, then the law is an ass. The government's instincts are right: the regulations --
or, if necessary, the law -- should be amended to give individual schools and
communities more flexibility in such cases.

That editorial probably has the balance and the arguments right.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=ASSEMBLY&speech=5105&activity=Second+Reading&title=HISTORIC+BUILDI
NGS+%28FURTHER+AMENDMENT%29+BILL&date1=28&date2=May&date3=1991&query
=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'
+%29%0a

Title

HISTORIC BUILDINGS (FURTHER AMENDMENT) BILL

House

ASSEMBLY
Activity Second Reading
Members SPEAKER
Date

28 May 1991

Page

2583

It is inappropriate for governments to interfere in religious observance. It is not for a
former Methodist minister, with great respect to the Minister, to be telling His Grace
the Catholic Archbishop of Melbourne whether he can have his high altar in the
middle of the transept, in the northern end of the transept or anywhere else in the
transept.

Page 2587

Let religious belief and religious forms and observance be appropriate to the
particular denomination. It is not for us to be telling the great Synagogue of
Melbourne that it cannot do this or it cannot do that. It is not for us to tell a Muslim
community how it will set up its mosque.

As a Parliament we must learn to respect other people's religious beliefs and the form
of religious service they follow. If that means making changes to buildings which are
their buildings and which they have looked after for generations and brought down
the generations for us as part of our heritage, that respect is all important. That is
fundamental in our community and will be fundamental in the coalition's approach to
historic buildings legislation.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=COUNCIL&speech=13022&activity=Second+Reading&title=RACIAL+AND+RELI
GIOUS+TOLERANCE+BILL&date1=14&date2=June&date3=2001&query=true%0a%09and+%
28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a

Title

RACIAL AND RELIGIOUS TOLERANCE BILL

House

Second Reading

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Activity COUNCIL
Members NGUYEN
Date

14 June 2001

Page

1484

It is in this context of the diverse Victorian community that I believe the Victorian
people will support the promotion of legislation that seeks to enhance a tolerant
society.

The bill is about promoting a tolerant society. I see this bill as being about creating
rights and not taking away rights. There has been a lot said during the debate about
the freedom of speech. Australia does not currently have a bill of rights, although I
believe we should have one. We do not currently have unqualified rights to freedom
of speech -- for example, we do not have the right to defame people, to harass or to
intervene. There are already laws in place, as the Honourable Carlo Furletti indicated
in his contribution, that deal with such

Page 1490

instances. However, I agree with him that such laws do not cover many situations of
verbal abuse.

Although we are not signatories to a bill of rights, we are signatories to a number of
international treaties, including the International Convention on the Elimination of
All Forms of Racial Discrimination and the International Covenant on Civil and
Political Rights. These documents not only endorse freedom of speech but also
acknowledge that this right is tempered by the rights of others.

Article 29 of the Universal Declaration of Human Rights states:

(1) Everyone has duties to the community in which alone the free and full
development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.

Australia is a founding member of the General Assembly of the United Nations, and
is a signatory to the Universal Declaration of Human Rights. Article 29 conveniently
sets out the need for a balance between rights in our society, and I see this bill as not
tempering any of our existing rights.

We do not have an unlimited right to free speech in this country. Given that we live
in a community we should have regard to the rights of others, which is what the bill
seeks to do. It is important to refer specifically to paragraph 3 of the preamble of the
bill, which says, in part:

However, some Victorians are vilified on the ground of their race or their religious
belief or activity. Vilifying conduct is contrary to democratic values because of its

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effect on people of diverse ethnic, indigenous and religious backgrounds. It
diminishes the dignity, sense of self-worth and belonging to the community. It also
reduces their ability to contribute to, or fully participate in, all social, political,
economic and cultural aspects of society as equals, thus reducing the benefit that
diversity brings to the community.

And

The state is in danger of taking onto itself the power of deciding religious issues
through state servants. I remind honourable members of section 116 of the federal
constitution. I will read it because people with professional backgrounds have
advised me that this bill may be subject to challenge -- it could be challenged as
being invalid on the basis of section 116 of the Australian constitution. That section
states:

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 shall be required as a qualification for any office or
public trust under the commonwealth.

The notes that go with this publication on the constitution state:

The section prohibits the commonwealth from doing four separate things: it may not:

make a law for establishing a religion;

make a law for imposing a religious observance;

make a law for prohibiting the free exercise of any religion ...

Therefore I have real reservations about the validity and conformity of the bill as it
relates to the constitution, which takes precedence over state legislation. It may
indeed be subject to a finding of invalidity at a subsequent hearing.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&speech=2644&activity=Questions+without+Notice&title=Organ+donor+program&date1=3
&date2=June&date3=1999&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%09
and+data+contains+'OBJECTION'+%29%0a
Title

Organ donor program

House

COUNCIL
Activity Questions without Notice
Members VARTY; KNOWLES
Date

3 June 1999

Page

1126

It is a fundamental issue for many in the community because organ donations can allow
others to enjoy an increased life expectancy and provide an opportunity for those who do
not have a cultural or religious objectionto contribute to the community.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=COUNCIL&speech=18716&activity=Second+Reading&title=TERTIARY+EDUCA

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TION+%28AMENDMENT%29+BILL&date1=1&date2=June&date3=1994&query=true%0a%0
9and+%28+data+contains+'RELIGIOUS'%0a%09and+data+contains+'OBJECTION'+%29%0a

Title

TERTIARY EDUCATION (AMENDMENT) BILL

House

COUNCIL
Activity Second Reading
Members HOGG
Date

1 June 1994

Page

1151

Hon. C. J. HOGG -- It is a problem when ministers are quoted as saying something they
have not said when they have not read the document, and I shall refer to that later. I also
double-checked the opting-out clause or the conscientious objectionclause. In his student
days the honourable member for Dandenong in another place was the general secretary of
the student union at Monash University. I asked him what happened to the conscientious
objection clause, and he informed me that every year 20 to 30 applications for exemption
were approved and almost all of those applications were brought on religious grounds.

http://tex2.parliament.vic.gov.au/bin/texhtmlt?form=VicHansard.dumpall&db=hansard91&dodraf
t=0&house=COUNCIL&speech=5190&activity=Second+Reading&title=JURIES+BILL&date1=
5&date2=April&date3=2000&query=true%0a%09and+%28+data+contains+'RELIGIOUS'%0a%
09and+data+contains+'grounds'+%29%0a

Title

JURIES BILL

House

COUNCIL
Activity Second Reading
Members FURLETTI
Date

5 April 2000

Page

564

However, if a person's religious beliefs are incompatible with the concept of jury service,
that person can apply for excusal on those groundsas good reason. There is the catch-all
provision in the bill which refers to any other matters of special urgency or importance
which can be cited as a ground for excusal.

Some past correspondences reproduced;

QUOTE 25-10-2001 EMAIL

Subj: close of nominations
Date: 25/10/01 4:10:24 PM AUS Eastern Standard Time

From: shawn.o'brien@aec.gov.au
To: GHSchorelHlavka@aol.com

File: gals4497.doc(23040 bytes) DL Time (46666 bps): < 1 minute

(See attached file: gals4497.doc)

< I>

Part 3 Page 77

Page 77 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

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END QUOTE 25-10-2001 EMAIL

QUOTE 25-10-2001 CORRESPONDENCE

File:

2001/1154/gals4497

West Block Offices

Parkes ACT 2600

Contact: Shawn O’Brien

Telephone: 02 6271 4678

PO Box E201

Facsimile: 02 6271 4457

Kingston ACT 2604

E-mail:

shawn.o’brien@aec.gov.au

Mr G Schorel-Hlavka
107 Graham Road
ROSANNA EAST VIC 3084

GHSchorelHlavka@aol.com

Dear Mr Schorel-Hlavka

Thank you for your enquiry about the period between the issue of the writs for the 2001 Federal
Election and the close of nominations.

As you are aware, the Commonwealth Electoral Act 1918 (the Electoral Act) provides as follows:
… a writ shall be deemed to be issued at the hour of 6 o’clock in the afternoon of the day on
which the writ was issued (s.152(2));
… the date fixed for the nomination of the candidates shall not be less than 10 days … after
the date of the writ (s.156(1));
the hour of nomination shall be 12 o’clock noon on the day of nomination (s.175(1)).
The Australian Electoral Commission (the AEC) understands that the writs issued by the
Governor-General and State Governors for the 2001 Federal Elections meet these requirements.

Part 3 Page 78

Page 78 ADDRESS TO THE COURT including SUBMISSIONS By the Defendant, Mr G. H. Schorel-Hlavka.
For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

The AEC does not believe the Electoral Act requires a 10 day period from the deemed time of the
issue of the writs to the hour of nomination, as you have suggested. The writs for the 2001
Federal Election reflect the same timetable as writs for the many previous elections that have not
been challenged on this basis.

Should you wish to challenge the conduct of an election, you could seek your own legal advice
with regard to;
applying for an injunction in the Federal Court of Australia to prevent the election being held;

or

petitioning the High Court of Australia, sitting as the Court of Disputed Returns, to set the
election aside. Such petitions need to be lodged in the period of 40 days following the return
of the writ.

Yours sincerely

authorised for electronic transmission by

Kathy Mitchell
Director
Government and Legal Section

25 October 2001

END QUOTE 25-10-2001 CORRESPONDENCE

Again;

applying for an injunction in the Federal Court of Australia to prevent the election being held; or

QUOTE 27-10-2001 CORRESPONDENCE

WITHOUT PREJUDICE

Australian Electoral Commission

27-10-2001

C/o Shawn O’Brien.

Katy Mitchell, Director, Government and Legal Section

Fax; 02 6271 4457

Ref:2001/1154/gals4497

Ph; 02 6271 4678

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