20150826-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Same Sex Relationships and The Constitution & The Legal Profession INCOMPETENCE

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WITHOUT PREJUDICE
Mr Tony Abbott PM
26-8-2015
C/o josh.frydenberg.mp@aph.gov.au
Cc:
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Bill Shorten Bill.Shorten.MP@aph.gov.au

Senator George Brandis senator.brandis@aph.gov.au
George Williams george.williams@unsw.edu.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
Scott Morrison Scott.Morrison.MP@aph.gov.au
Dr Augusto Zimmermann A.Zimmermann@murdoch.edu.au
Lorraine Finlay L.Finlay@murdoch.edu.au
Legal Service Commissioner admin@lsbc.vic.gov.au
Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Ref; 20150826-G. H. Schorel-Hlavka O.W.B. to Mr TONY ABBOTT PM-Re Same Sex relationships and the Constitution
& the legal profession INCOMPETENCE.
Tony,
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as a CONSTITUTIONALIST I am deeply concerned about the hordes of so called

constitutional lawyers (an oxymoron) who claim to understand the constitution and are lecturers
in constitutional matters where in real terms they appear to me to lack the basic understanding
what THE TRUE MEANING AND APPLICATION of the constitution is about.
Any lawyer can achieve numerous additional titles added to his/her name but in reality it all has
no real meaning and perhaps may be more likely to underline their incompetence as to
understand THE TRUE MEANING AND APPLICATION of the constitution.
I make it clear from onset that on 19 July 2006 I comprehensively defeated the Commonwealth
of Australia with all Attorney-Generals served with an s78B NOTICE OF
CONSTITUTIONAL MATTERS as to compulsory voting that it was unconstitutional! As
such I proved in court my with that I am better informed about constitutional matters then al, the
lawyers were. In the previous year I had defeated the commonwealth into AVERMENT that
the Commonwealth couldnt pursue this in a State Court exercising federal jurisdiction and the
court then upheld my submission. So to say I have lawyers for breakfast when they pretend to
know it all when they know next to nothing about the true meaning and application of the
constitution.
First thing is that one must not interpret the constitution to what one told during law studies, no
matter how inappropriately it is, but must be with an open minded view to detect what really the
Framers of the Constitution embedded as legal principles in the constitution.
It means reading matters and the words to what they are actually stating and not read to
what one is told to read.
.
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As a person who migrated to Australia in 1971 I learned the English language to end up with my
own self-professed :Crummy English but often over the decades ending up in the courts
litigating the meaning of words that lawyers would prove to have misinterpreted. As such even if
they were so called Rhodes Scholar lawyers I proved they still lacked to understand and
comprehend certain legal terminology.
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Mr G. H. Schorel-Hlavka O.W.B.
INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD
A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0
PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by E-mail admin@inspectorrikati.com See also www.schorel-hlavka.com at blog Http://www.scribd.com/InspectorRikati
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A clear example was some 2decades ago when an opposing barrister submitted that my writings
were in breach of the 6 mm between the lines rules and as such should be struck out. After a few
hours of legal arguments the trail judge my version that 6mm between the lines is intended from
base line to base line (as like a 6 mm lined paper) and not at all double spaced, as lawyer do. In
the end I showed the barristers material at sometimes was in fact 4 mm between base lines.
To me he was a hypocrite who proved not to understand and comprehend the meaning of the
English language of the court rules, by merely assuming it means double spaced.
We have ongoing Ministers in the Commonwealth interfering in education matters that is the
state area.
.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education question-and the
Constitution gives it no power to legislate in regard to that question-the Ministers for the time being in each
state might say-"We are favorable to this law, because we shall get 100,000 a year, or so much a year, from
the Federal Government as a subsidy for our schools," and thus they might wink at a violation of the
Constitution, while no one could complain. If this is to be allowed, why should we have these elaborate
provisions for the amendment of the Constitution? Why should we not say that the Constitution may be
amended in any way that the Ministries of the several colonies may unanimously agree? Why have this
provision for a referendum? Why consult the people at all? Why not leave this matter to the Ministers
of the day? But the proposal has a more serious aspect, and for that reason only I will ask permission to
occupy a few minutes in discussing it.
END QUOTE
Yet, we have Ministers for Education time and time again interfering in State educations.
Well, the real problem to me appears to be the universities and other education centres which are
teaching law. Then again if a Minister of Education himself/herself is a person who attained a
law degree then unlikely will any improvement ever be made because they too as I view it are so
to say brainwashed.
.
Transcript 16 March 2009 before Her Honour Habrison J. (Colosimo case)

Transcript 16 March 2009 Harbison J
QUOTE
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QUOTE Her Honour at page 21 line 30

Now, having heard that you can take a seat and I can have Mr Shorel-Hlavkia speak on your behalf.
Mr Shorel-Hlavkia, what were the matters that you wanted to put?
MR SHOREL-HLAVKIA : First of all, Im not a lawyer. Ive no legal training. Im a constitutionalist. That
means I deal with matters on constitutional matters mainly.
HER HONOUR : All right. Do you have some you dont have any legal training?
.
MR SHOREL-HLAVKIA : Absolutely not.
HER HONOUR : Do you have any qualification in what you say you are?
MR SHOREL-H;LAVKIA : No, I have no I am a constitutionalist, so I do assist with parties with
barristers and everything else to assist them with legal work, you know, constitutional matters and
everything else, or the Government. You know, thats ongoing. I publish books about it under the
Inspector (indistinct) at Trademark, they are published and (indistinct).
END QUOTE Transcript 16 March 2009 Harbison J
END QUOTE
In the Colosimo case some 20 lawyers (including judges) were involved over more than 2
years Mr Colosimo was represented by a barrister while he ended up being placed Guardianship
and subjected to some 6 CONTEMPT OF COURT hearings.
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When I took over I turned it all around. The appeal against the administration orders succeeded
and the CONTEMPT OF COURT was permanently stayed.
I exposed that all lawyers involved had omitted the cardinal issue the legal basis upon which
litigation could exist never existed. The original warning notice had not been in compliance with
the legislative requirements. The Infringement Notice had been also in breach of legislative
requirements and when finally withdrawn the subsequent Infringement Notice was also in breach
of legislative provisions. The issued Notice which declared that Mr Colosimo had acted within
and in compliance with required legislative provisions had been totally ignored by all lawyers,
despite being part of the case. And less than a week after this notice the legal proceedings were
instituted in blatant defiance of this notice, as if it never existed. And on and on it went. Even so
it had been totally overlooked to formally charge Mr Colosimo, nevertheless the medical reports
were based upon that Mr Colosimo had been convicted of CONTEMPT OF COURT.
One judicial officer even went as far to claim Mr Colosimo caused the health problems because
of having been convicted for CONTEMPT OF COURT. Well the following my underline that
despite Victoria Legal Aid in writing recommending Mr Colosimo to purge his contempt (this
even so he was not formally charged for this) and that I opposed the CONTEMPT OF COURT
application to be withdrawn as being the property of the court once filed.
Transcript 16 March 2009 page 8 line 3 (Ms Morris solicitor of Maddocks Lawyers)
QUOTE
MS MORRIS: Your Honour, the application that Im making on behalf of the Council today is actually to
withdraw this application pursuant to s.74 (1) of the VCAT Act. If I can hand up a submission to you.
END QUOTE
.
Transcript 16 March 2009 page 12 line 22 (MS MORRIS)

QUOTE
On 2 March 2009, Your Honours Associate, Mr Harbison, contacted Councils lawyers and indicated that the
tribunal couldnt grant leave to withdraw the application without the consent of all parties, and Mr
Harbsion indicated that the application for leave would need to be considered at the hearing on 16
March 2009.
END QUOTE
.
Transcript 16 March 2009 page 12 line 29 (MS MORRIS)
QUOTE
So on 2 March 2009, Council wrote to the respondent and Mr Peter Sier and requested that they
indicate whether or not they consented to Councils request to withdraw the application as soon as
practicable. The letter was also copied to Mr Gerit Shorel-Hlavkia.
On 7 March 2009, Council received an email from Mr Shorel-Hlavkia which appeared to assert that the
respondent opposes Councils request to withdraw the application, and I got a copy of that letter if the
tribunal would like me to hand it up.
END QUOTE
Transcript 16 March 2009 page 26 line 14

QUOTE (MR SHOREL-HLAVKIA) (Should be MR SCHOREL-HLAVKA)
As I indicated in the material that in my view they have no position to withdraw because its a matter
between VCAT as to whether or not the contempt shall be punished, contempt for it, and that is all
they had the position was to make a recommendation, what kind of punishment should be applied.
END QUOTE
Transcript 16 March 2009 page 51 line 14
QUOTE MR SHOREL-HLAVKIA (should be Mr Schorel-Hlavka)
Because I believe that the integrity of a tribunal, including Your Honour, you dont want to be used
like some kind of a fool, lets say, and theyve been playing this tribunal to issue orders , then after all
there never was any justification for it. I think this is a very serious matter.
Therefore, just to give them leave to withdraw I think would be the wrong thing to do. If anything
maybe there should be a judicial inquiry. I have also written to the president of VCAT. I have also
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written to Chief Justice Rozenes of County Court. Because I take this matter very serious.
I might not be a lawyer but I always and I quite it in the Foster case where they said that a barrister or
whatever, should have that. He must present the truth. No matter if it goes against his client, he must
present the truth. In this case this withdrawal now is to cover up their deception and if Your honour
were to grant that in that manner, I think that Your Honour will then place yourself doubt as to the
credibility of standing of VCAT to allow this kind of process to proceed.
Therefore, that I seek, and I think that Frank himself totally support it, that Your Honour will say that
these matters will be adjourned, Your Honour will have these matters fully investigated, no further
proceedings should be taken in the meantime. When those matters are investigated, including my
allegations, because if I make scandalous allegations against lawyers or against VCAT, then I cop it.
But I can assure you, and if you anyone who reads my material will know that Im very careful when
I make statements.
And also, Your Honour is now aware, that we were told by a ruling that we would have the files before
this hearing and we havent got them because of a defect in the orders, this hearing itself could never
be a fair and proper hearing. So therefore that should be adjourned in any event for that.
END QUOTE
Transcript 16 March 2009 page 53 line 12 (HER HONOUR HARBISON J)
QUOTE
HER HONOUR: THANK YOU.
Now, this is an application by the Moorabool shire Council, who is the applicant in contempt proceedings to
withdraw those proceedings on the basis that there be no further order as to cost of the proceedings.
The application was made under s.74 (1) of the VCAT Act.
Normally an application to withdraw a proceeding is a routine matter. There are some aspects of this
case which are not routine, and the principal aspect of the case which is not routine is that this is a
contempt proceeding. Once contempt proceedings are issued, then the proceedings are not the property
of the applicant, they are the property of the tribunal, as was correctly pointed out on behalf of Mr
Colosimo.
So it is not simply a matter of the proceedings finishing when an applicant decides to withdraw, it is a
matter of the tribunal itself having the responsibility to decide whether or not the course of conduct
which has been engaged in by the respondent is in truth contempt of the tribunal.
END QUOTE
Again
QUOTE
Once contempt proceedings are issued, then the proceedings are not the property of the applicant, they
are the property of the tribunal, as was correctly pointed out on behalf of Mr Colosimo.
END QUOTE
.
QUOTE
In my view it is not appropriate for me to grant the applicants application to withdraw, however at the
moment Mr Colosimo is under Administration.
END QUOTE
.
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QUOTE
Thirdly, it is clear that the State Trustees, which is presently the Administrator, is not in a position to
proceed with this application given the uncertainties about the present state of the Guardianship
proceedings.
Therefore it is my view that the proceedings should not continue past this point and what I will do is to
make an order that this proceeding be stayed until further order.
END QUOTE
I may not use the formal legal language of lawyers then again as long as I get result for the party
I am representing this ultimately is what is important.
All those lawyers conducting a case over years and none, including the judges, dealing with the
real facts of the case but all on fictional issues.
.
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As a CONSTITUTIONALIST and Professional Advocate (now retired) I represented a lawyer
who was already for 22 years a QC. Underlining that in my own way I carved out my reputation
to be an expert in certain matters.
.
Regretfully we have an estimated 200,000 lawyers who mainly were brainwashed and simply
assume legal issues rather than for themselves to investigate and question the facts from
fiction, when presenting articles.
To use an example:
http://newsweekly.com.au/article.php?id=56792
QUOTE Can state parliaments legislate for same-sex marriage?
MARRIAGE
Can state parliaments legislate for same-sex marriage?
LAW
by Augusto Zimmermann and Lorraine Finlay

News Weekly, December 6, 2014
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Western Australia is about to become the focal point of the same-sex marriage debate in Australia, with the
Same-Sex Marriage Bill 2013 potentially due for debate in the WA Legislative Council before the end of the
year. This was introduced in December 2013 as a Private Members Bill by Greens MLC, the Hon. Lynn
MacLaren.
At the time of its introduction, questions were raised about the constitutionality of such a Bill. Indeed, the
question of same-sex marriage has been described as a pending constitutional battlefield.[1]
Professor George Williams AO
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Professor George Williams AO was recently in Western Australia to address this very issue. He expressed the
view that state parliaments can pass legislation permitting same-sex marriage that will survive constitutional
challenge in the High Court of Australia.[2] We would disagree with this, and conclude that any state
legislation providing for same-sex marriages faces serious constitutional hurdles.
The key constitutional question
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In his recent lecture at WAs Murdoch University, Professor Williams argued both that the constitutional
power over marriage granted to the Commonwealth Parliament, under section 51(xxi) Australian
Constitution, is a power shared concurrently with the states and that the plenary legislative power of the states
would theoretically allow them to legislate for same-sex marriage.
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This is undoubtedly correct. Under our constitutional arrangements both the Commonwealth and the states
have shared legislative powers in relation to the question of marriage. This is illustrated by the fact that
marriage was regulated by the states up until the introduction by the Commonwealth of the Marriage Act
1961.
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This is not, however, the end of the legal analysis. The key question confronting any state-initiated same-sex
marriage legislation is whether it could survive a constitutional challenge under s. 109 of the Australian
Constitution. It is on this point that we disagree with the conclusion reached by Professor Williams.
While theoretically a state could legislate for same-sex marriage, any attempt to do so would raise significant
questions under section 109, which provides that where there is an inconsistency between Commonwealth
and state laws, the state law shall, to the extent of the inconsistency, be invalid.[3]
Given that the Commonwealth has defined marriage under s 5(1) Marriage Act 1961 (Commonwealth) as
meaning the union of a man and a woman to the exclusion of all others, voluntarily entered into for life,
any attempt by a state parliament to expand the concept of marriage to include same-sex couples will likely
be invalid under s. 109.
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Does the Commonwealth legislation cover the field?

The inconsistency test that is the most relevant here is the cover the field test. This effectively provides that
a state law will be necessarily inconsistent with a Commonwealth law that was intended to be an exhaustive
statement of the law in that particular area.[4]
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In its recent decision, overturning the 2013 same-sex marriage legislation introduced in the Australian Capital
Territory, the High Court of Australia unanimously declared that the Marriage Act 1961 (Commonwealth)
provides a comprehensive and exhaustive statement of the law with respect to the creation and recognition
of the legal status of marriage.[5] Following this decision it is clear that the Commonwealth definition of
marriage covers the field. Any attempt to introduce an alternative form of marriage at the state level will
therefore be rendered inoperative under s. 109.
The High Court in that decision appeared to reject the argument that the field being covered by the
Commonwealth was limited to heterosexual marriage, which would have left the way open for the states to
legislate consistently in the field of same-sex marriage. The High Court justices found that the 2004
amendments to the Commonwealth Marriage Act necessarily contain the implicit negative proposition that
the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in
Australia.[6] As a consequence, the question of same-sex marriage is now a matter for the federal
Parliament.[7]
Is same-sex marriage really marriage?
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That any question relating to the institution of marriage is now reserved for the Commonwealth parliament
appears to have been implicitly recognised by supporters of same-sex marriage. For example, Professor
Williams noted in his recent lecture that any state law would need to be drafted so as to avoid any overlap
with federal legislation by setting up a separate category of same-sex marriage that was distinct in status
from federal marriage.[8] That is, state same-sex marriage legislation will only be constitutionally valid if it
introduces a form of marriage that isnt really marriage.
This leaves advocates of the WA same-sex marriage legislation in an untenable position. If what they are
arguing for is truly marriage equality, then the legislation will likely be declared inoperative under s. 109. If
what they are arguing for is a separate and distinct institution that is not really marriage, then they are being
deliberately misleading by describing it as marriage, and are undermining the institution of marriage by doing
so.
It seems that what the WA Same-Sex Marriage Bill 2013 is trying to do is to establish marriage equality in
practice, while disguising it as something else, so as to avoid the potential constitutional problems. The claim
that same-sex marriage is not really marriage is a form of doublespeak that would not be out of place in
George Orwells novel, Nineteen Eighty-Four. An examination of the proposed legislation reveals that it
attempts to create an institution that can only be described as marriage, both in name and substance.
To begin with, the word marriage appears over 300 times in the Bill. It appears in the title, and the Bill
itself states that it is intended to provide for same-sex marriages between adults.[9] Trying to claim that
you are establishing an institution distinct from marriage is difficult when you consistently refer to that
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institution as a type of marriage. The substantive provisions of the Bill provide further evidence that the
form of same-sex marriage proposed at the state level is inextricably linked to marriage at the
Commonwealth level. To give just a few examples:
One of the eligibility requirements for same-sex marriage is that neither person is married under
Commonwealth law.[10]
Only a person registered as a Commonwealth marriage celebrant may apply to be registered as a same-sex
marriage celebrant.[11]
The form of ceremony (including the very words to be used in the ceremony) is described in identical terms
at both levels.[12]
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The notice and declaration requirements for the solemnisation of both forms of marriage are substantially
identical.[13]
The grounds on which both forms of marriage are void are substantially identical.[14]
The offence of bigamy appears to encompass both forms of marriage.[15]
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The same terminology of husband, wife and marriage is to be applied when dealing with same-sex
marriages.[16]
Consequential legislative amendments will expressly define marriage as including both heterosexual and
same-sex marriages.[17]
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During the Second Reading Speech of this legislation, it was claimed that the Bill sets up a form of samesex marriage at the state level that is conceptually distinct from marriage provided for by the federal
Marriage Act 1961.[18]
An examination of the Bill reveals that this is simply not true. In both style and substance the Same-Sex
Marriage Bill 2013 (WA) attempts to expand the existing institution of marriage to include same-sex
marriages. The High Court has stated that this is a question to be left to the federal Parliament.
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As a result, it is likely that the Same-Sex Marriage Bill 2013 (WA), if passed, will be highly vulnerable to a
successful constitutional challenge.
Augusto Zimmermann, LLB, LLM, PhD (Monash), is a senior lecturer in legal theory and
constitutional law in the School of Law at Murdoch University, Western Australia. He is also a
Commissioner with the Law Reform Commission of WA.
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Lorraine Finlay, BA (UWA), LLB (UWA), LLM (NUS), LLM (NYU), is a lecturer in constitutional law
and international human rights in the School of Law at Murdoch University.
Endnotes
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[1] Sarah Joseph, Same-sex marriage is a pending constitutional battlefield, The Conversation, August 6,
2012.
[2] George Williams, Exploring the constitutionality of the Same-Sex Marriage Bill 2013, a public lecture
delivered at the Murdoch University School of Law, October 7, 2014.
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[3] Noting that, under s. 109, an inconsistent state law is actually rendered inoperative for so long as the
inconsistency remains: see Carter v Eggand Egg Pulp Marketing Board(1942) 66 CLR 557, 573 (Latham
CJ).
[4] Clyde Engineering CoLtdvCowburn(1926) 37 CLR 466 (Isaacs J); Victoria v Commonwealth(The
Kakariki)(1937) 58 CLR 618 (Dixon J); New South Wales v Commonwealth(Work Choices Case)(2006)
229 CLR 1.
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[5] The Commonwealth v Australian Capital Territory[2013] HCA 55, [57].

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[6] Ibid, [59].
[7] Ibid, [1].
[8] See also Bret Walker SC, Chris Young and Perry Herzfeld,
Memorandum of Advice:In the Matter of The Same-Sex Marriage Bill 2012(Tas)(October 11, 2013), [101][102]; George Williams, Gay marriage is now only a matter of political will, Sydney Morning Herald,
December 17, 2013.
[9] Emphasis added.
[10] Section 5(d) Same-Sex Marriage Bill 2013(WA).
[11] Sections 21 & 22 Same-Sex Marriage Bill 2013(WA).
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[12] Compare s. 45 Marriage Act 1961(Cth) and s. 14 Same-Sex Marriage Bill 2013(WA).
[13] Compare s. 42 Marriage Act 1961(Cth) and s. 10 Same-Sex Marriage Bill 2013(WA).
[14] Compare ss. 23 and 23B Marriage Act 1961(Cth) and s. 6 Same-Sex Marriage Bill 2013(WA).
[15] Section 19(1) Same-Sex Marriage Bill 2013(WA).
[16] Section 47 Same-Sex Marriage Bill 2013(WA).
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[17] Section 62 Same-Sex Marriage Bill 2013(WA).

[18] The Hon. Lynn MacLaren MLC, Same-Sex Marriage Bill 2014 (Second Reading Speech), Hansard:
Legislative Council (Western Australia), December 12, 2013, pp. 7710-7711.
END QUOTE Can state parliaments legislate for same-sex marriage?
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Let us now look at the authors of the article and one may notice they have a list of credentials as
well as being lecturers in legal studies.
QUOTE
Dr Augusto Zimmermann
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LLB (Hon.), LLM (cum laude), PhD (Mon)

Senior Lecturer
About me
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Dr Augusto Zimmermann (LLB (PUC-Rio), LLM cum laude (PUC-Rio), PhD (Monash University)) is Senior
Lecturer and former Associate Dean (Research) and Director of Postgraduate Studies at the School of Law at
Murdoch University.
Dr Zimmermann is also a Commissioner with the Law Reform Commission of Western Australia; a VicePresident of the Australian Society of Legal Philosophy (ASLP); President of the Western Australian Legal
Theory Association (WALTA); and Editor of the Western Australian Jurist law journal.
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Dr Zimmermann has been awarded the 2012 Vice Chancellors Award for Excellence in Research, and also
been awarded two consecutive Murdoch School of Law Deans Research Awards, in 2010 and 2011.
He has been included, together with only twelve other Australian academics and policy experts, in the
prestigious Policy Experts the Heritage Foundations directory for locating knowledgeable authorities and
leading policy institutes actively involved in a broad range of public policy issues, both in the United States
and worldwide
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Twice nominated for the Vice Chancellors Award for Excellence in Teaching and Learning, Dr Zimmermann
undoubtedly is a favourite among students. He has received the Law Lecturer of the Year Award 2013 by
Murdoch Student Law Society, in recognition for the outstanding level of teaching, ongoing service and
personal contribution provided to his students.
END QUOTE
QUOTE
Lorraine Finlay
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B.A (UWA), LL.B (UWA), LL.M (NUS), LL.M (NYU)

Law Lecturer
About me
Lorraine Finlay is a lecturer in the School of Law at Murdoch University. Her research interests include criminal
law, constitutional law, international criminal law and public international law.
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Lorraine joined Murdoch University in 2010 from the Office of the Director of Public Prosecutions (WA), where she
worked as a State Prosecutor. She has also previously worked at the High Court of Australia, initially as the Legal
Research Officer and then as an Associate to The Hon. Justice J D Heydon. In 2009 she was selected as a
Singapura Scholar with the NYU@NUS program. As part of this program she was awarded a dual LL.M in Law and
the Global Economy (with a concentration in Justice and Human Rights) from New York University and in
International & Comparative Law from the National University of Singapore.
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Lorraine currently lectures in Constitutional Law and teaches as part of the International Human Rights Law
Program in Geneva. She has been awarded a number of teaching and research awards, including the OLT Citation
for Outstanding Contributions to Student Learning (2013), Vice-Chancellors Citation for Excellence in Enhancing
Learning (2013), Deans Service Award (2010 & 2011), Deans Research Prize Commendation (2011) and MSLS
Lecturer of the Year (2011 & 2014).
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In addition, Lorraine is the Director of the Mooting Program at Murdoch. She is the Faculty Advisor to the Moot
Court Bench, and is responsible for coaching a number of Murdochs international moot teams. This includes
award-winning teams in competitions such as the Philip C. Jessup Public International Law Moot (2013
International Quarter Finalists), International Maritime Law & Arbitration Moot (2011 Winning Team), INADR
International Mediation Tournament (2014 H. Case Ellis Mediation Award Winners & 2011 Winning Team
Mediation Division) and IT & Privacy Law International Moot (2011 Ambassador Round Winning Team).
30
END QUOTE
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Both authors of the articles seems to have an impressive record of employment, etc, yet I view
have an identical cardinal error they assume something rather than to have researched every
facet of their article.
.
Let me explain.
.
They refer to what they referred to as being the key question;
QUOTE
The key constitutional question
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1961.
This is not, however, the end of the legal analysis. The key question confronting any state-initiated same-sex
marriage legislation is whether it could survive a constitutional challenge under s. 109 of the Australian
Constitution. It is on this point that we disagree with the conclusion reached by Professor Williams.
While theoretically a state could legislate for same-sex marriage, any attempt to do so would raise significant
questions under section 109, which provides that where there is an inconsistency between Commonwealth
and state laws, the state law shall, to the extent of the inconsistency, be invalid.[3]
Given that the Commonwealth has defined marriage under s 5(1) Marriage Act 1961 (Commonwealth) as
meaning the union of a man and a woman to the exclusion of all others, voluntarily entered into for life,
any attempt by a state parliament to expand the concept of marriage to include same-sex couples will likely
be invalid under s. 109.
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END QUOTE
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Again:
QUOTE
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END QUOTE
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QUOTE
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1961.
END QUOTE
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Neither Professor Williams nor the authors of the article are presenting any facts as to why
concurrent legislative powers is claimed to apply to ss51 of the Commonwealth of Australia
Constitution Act 1900 (UK). As such all we get is that the very basic legal premises of the article
if floored, as it is without any facts to prove this is so. I hate to think how their students are
taught to ignore the principle legal issues.
Let us consider s512 of the constitution:
Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
Part VPowers of the Parliament

51 Legislative powers of the Parliament [see Notes 10 and 11]
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The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good
government of the Commonwealth with respect to:
(i) trade and commerce with other countries, and among the States;
(ii) taxation; but so as not to discriminate between States or partsof States;
(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the
Commonwealth;
(iv) borrowing money on the public credit of the Commonwealth;
(v) postal, telegraphic, telephonic, and other like services;
(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the
forces to execute and maintain the laws of the Commonwealth;
(vii) lighthouses, lightships, beacons and buoys;
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25
30
35
40
45
50
55
(viii) astronomical and meteorological observations;

(ix) quarantine;
(x) fisheries in Australian waters beyond territorial limits;
(xi) census and statistics;
(xii) currency, coinage, and legal tender;
(xiii) banking, other than State banking; also State banking extending beyond the limits of the State
concerned, the incorporation of banks, and the issue of paper money;
(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State
concerned;
(xv) weights and measures;
(xvi) bills of exchange and promissory notes;
(xvii) bankruptcy and insolvency;

(xviii) copyrights, patents of inventions and designs, and trade marks;
(xix) naturalization and aliens;
(xx) foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth;
(xxi) marriage;
(xxii) divorce and matrimonial causes; and in relation thereto,parental rights, and the custody and
guardianship of infants;
(xxiii) invalid and old-age pensions;
(xxiiiA) the provision of maternity allowances, widows pensions, child endowment,
unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services
(but not so as to authorize any form of civil conscription), benefits to students and family
allowances;
(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process
and the judgments of the courts of the States;
(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and
the judicial proceedings of the States;
(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed
necessary to make special laws;
(xxvii) immigration and emigration;
(xxviii) the influx of criminals;
(xxix) external affairs;
(xxx) the relations of the Commonwealth with the islands of the Pacific;
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect
of which the Parliament has power to make laws;
(xxxii) the control of railways with respect to transport for the naval and military purposes of the
Commonwealth;
(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged
between the Commonwealth and the State;
(xxxiv) railway construction and extension in any State with the consent of that State;
(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes
extending beyond the limits of any one State;
(xxxvi) matters in respect of which this Constitution makes provision until the Parliament
otherwise provides;
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments
of any State or States, but so that the law shall extend only to States by whose Parliaments the
matter is referred, or which afterwards adopt the law;
(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the
Parliaments of all the States directly concerned, of any power which can at the establishment of this
Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council
of Australasia;
(xxxix) matters incidental to the execution of any power vested by this Constitution in the
Parliament or in either House thereof, or in the Government of the Commonwealth, or in the
Federal Judicature, or in any department or officer of the Commonwealth.
END QUOTE
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Commonwealth of Australia Constitution Act 1900 (UK)
10
15
QUOTE
52 Exclusive powers of the Parliament
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order,
and good government of the Commonwealth with respect to:
(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public
purposes;
(ii) matters relating to any department of the public service the control of which is by this Constitution
transferred to the Executive Government of the Commonwealth;
(iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.
END QUOTE
Neither s51 or s52 provides in their wording any legislative powers for the states but merely for
the Commonwealth.
.
As French J (now French CJ of the High court of Australia) himself acknowledged even
ss51(xxxvii) is no more but a permissive provision for the Commonwealth to accept reference of
legislative powers and not one that authorise the State to refer legislative powers.
.
20
25
QUOTE
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any
State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or
which afterwards adopt the law;
END QUOTE
Worse, the states cannot refer legislative powers and thereby also removed judicial powers from
the Supreme Court of the state without a state referendum that the electors by state referendum
approve of such reference of legislative powers.
30
Constitutionally there is a division between the Judiciary and the legislators and executives.
.
35
It should be noted that the wording and for the due and impartial administration of
justice which Oaths the said Chief Justice or Judge is hereby required to administer
leaves it beyond doubt that the Chief Justice or Judge must for the due and impartial
administration of justice make an oath. As such the separation of powers in the State of
Victoria is enshrined in this Proclamation as the Governor cannot act otherwise nor so any
judge.
FOURTH SUPPLEMENT
TO THE
VICTORIA
GOVERNMENT GAZETTE
OF FRIDAY, DECEMBER 28, 1900.
Published by Authority
No. 2.] WEDNESDAY, JANUARY 2. [1901.
40
45
QUOTE
follows :
50
55
IV. Every person appointed to fill the Office of Governor shall with, all due solemnity, before entering
on any of the duties of his Office, cause the Commission appointing to be Governor to be read and
published at, the seat of Government, in the presence of the Chief .Justice, or some other Judge of the
Supreme Court of the State, and of she Members of the Executive Council thereof, which being done, he
shall then and there take before them the Oath of Allegiance, in the form provided by an Act passed in the
Session holden in tile Thirty-first and Thirty-second years of Our Reign, intituled an Act to amend the
Law relating to Promissory Oaths ; ,and likewise the usual Oath for the due execution of the Office of
Governor, and for the due and impartial administration of justice which Oaths the said Chief Justice or
Judge is hereby required to administer.
END QUOTE
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The Office of the Governor (Victoria) as per 2-1-1901 PROCLAMATION, that was Gazetted
requires that the Governor appoints impartial judges! As such, any notion that there being no
separation of powers in the states utter and sheer nonsense.
Hence, to refer legislative e powers to the Commonwealth means that the Commonwealth then
exercises judicial powers also. It therefore requires a state referendum by the State electors to
do so. This, as effectively it is a changing of the State constitution, both as to legislative powers
as well as judicial powers, to which no constitutional Parliament can engage in to bind future
Parliaments.
.
10
15
20
25
HANSARD 10-03-1891 Constitution Convention Debates

QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary
sovereignty. Parliament has been the supreme body. But when we embark on federation we throw
parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are
not only legislative, but constituent bodies. They have not only the power of legislation, but the power
of amending their constitutions. That must disappear at once on the abolition of parliamentary
sovereignty. No parliament under a federation can be a constituent body; it will cease to have the
power of changing its constitution at its own will. Again, instead of parliament being supreme, the
parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in
one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary
which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter
of the constitution.
END QUOTE
.
Hansard 15-9-1897 Constitution Convention Debates

QUOTE
30
35
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to refutation if I am
wrong, I should say that the whole of the thirty-seven subjects, but, indisputably, the great bulk of them, are
subjects on which no question of state rights and state interests could arise except by the merest accident. It is,
as the right hon. gentleman admitted, a grave defect in our constitution if we permit these questions to be left
for all time to be determined in a purely states house, or by a state referendum, when those questions are not
state questions-when they ought to be decided, not on state lines, but on national lines, and by a national
referendum.
END QUOTE
QUOTE
40
Mr. BARTON: I do not think it is a good thing under any circumstances that a judge under a Federal
Constitution, at any rate, should have anything to hope for from Parliament or Government.
Mr. KINGSTON: Hear, hear.
45
50
55
Mr. BARTON: Where you have a sovereign Parliament, and the judge is merely the interpreter of
the laws as they arise, and not the guardian of a Constitution in the same sense as a federal judge is, the
same circumstances remain in part; but where you will have a tribunal constantly charged with the
maintenance of the Constitution against the inroads which may be attempted to be made upon it by
Parliament, then it is essential that no judge shall have any temptation to act upon an unexpected
weakness-for we do not know exactly what they are when appointed-which may result, whether
consciously or not, in biasing his decisions in favor of movements made by the Parliament which might
be dangerous to the Constitution itself.
END QUOTE
QUOTE
Mr. DEAKIN (Victoria).-The position of my honorable and learned friend (Mr. [start page 2092] Higgins)
may be perfectly correct. It may be that without any special provision the practice of the High Court, when
declaring an Act ultra vires, would be that such a declaration applied only to the part which trespassed
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14
beyond the limits of the Constitution. If that were so, it would be a general principle applicable to the
interpretation of the whole of the Constitution.
END QUOTE
.
10
15
QUOTE
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.
END QUOTE
QUOTE Sir HENRY PARKES:
(2.) A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal
for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final.
20
(3.) An executive, consisting of a governor-general and such persons as may from time to time be
appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend
upon their possessing the confidence of the house of representatives, expressed by the support of the
majority.
25
END QUOTE
.
30
35
40
45
50
55

QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting privileged classes, for
the whole power will be vested in the people themselves. They are the complete legislative power of the
whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal
constitution which we are proposing to establish, and in the next place will come the legislative powers of the
several colonies. The people will be the authority above and beyond the separate legislatures, and the
royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be
practically vested in them. They will exercise the sovereignty of the states, they will be charged with the
full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies
that will be in existence concurrently the necessary powers for their proper management and existence. Each
assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority
conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of
such authority.
END QUOTE
But there is more to it all, in that States simply no longer have any legislative powers in regard of
any subject matter once the Commonwealth commences to legislate upon it. Albeit with taxation
it is slightly different as then the area of taxation is what is binding.
As s51 doesnt state that the States will have concurrent

legislative powers with the Commonwealth then obviously
one has to ask; Where on earth did the law professors and
others get this from?
.
The article simply assumes there is concurrent legislative powers. That is like planning
some town to be built without bothering to convey the area and afterwards the persons having put
their monies into the building project discover that the area is quicksand and lacks the surface
stability to build anything on it.
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QUICK & GARRAN
QUOTE
160. Legislative Powers.

5
This important section, containing 39 sub-sections, enumerates the main legislative powers conferred
on the Federal Parliament. They are not expressly described as either exclusive powers or concurrent
powers, but an examination of their scope and intent, coupled with subsequent sections, will show
clearly that, whilst some of them are powers which either never belonged to the States, or are taken
from the States and are [P.509] vested wholly in the Federal Parliament to the exclusion of action by the
State legislatures, others are powers which may be exercised concurrently by the Federal Parliament
and by the State legislatures.
CLASSIFICATION OF POWERS.The powers conferred on the Federal Parliament may be classified as
(1) the new and original powers not previously exercised by the States, such as Fisheries in
Australian waters beyond territorial limits, external affairs, the relations of the Commonwealth with
the islands of the Pacific, &c.; (2) old powers previously exercised by the colonies and re-distributed,
some being (a) exclusively vested in the Federal Parliament, such as the power to impose duties of
customs and excise, and the power to grant bounties on the production or export of goods, after the
imposition of uniform duties of customs; and others being (b) concurrently exercised by the Federal
Parliament and the State Parliaments such as taxation (except customs and excise), trade and
commerce (except customs, excise, and bounties), quarantine, weights and measures, &c. The rule of
construction is, that the legislative authority of the Federal Parliament with respect to any subject is not
to be construed as exclusive, unless from the nature of the power, or from the obvious results of its
operations, a repugnancy must exist, so as to lead to a necessary conclusion that the power was
intended to be exclusive; otherwise, the true rule of interpretation is that the power is merely
concurrent. (Story, Comm., 438.)
10
15
20
25
END QUOTE
30
I GET IT Dr Quick who was a Delegate writes his version of interpretation and well we have
since about 200,000 lawyers who all go along rather to check what actually was stated by the
various Delegates!
As I indicated I had no education in law and so do my usual over the decades and simply
research what the Framers of the Constitution actually stated and embedded as legal principles in
the Constitution;
35
40
LEGISLATIVE POWERS-STATE
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that if we leave the
clause as it now stands there will, at any rate, be some proviso inserted which will safeguard the states
in the carrying out of any of their state laws over which the states are to be supreme even under
federation.
END QUOTE
.
45
50
55
60
Hansard 19-4--1897 Constitution Convention Debates

QUOTE
Mr. BARTON: I will look into these matters. Notwithstanding the able draughtsmanship of the 1891 Bill,
there are several clauses not quite in their right place in it, and it would be well to alter their order. The
Drafting Committee will look into that matter, and at the end of the proceedings will ask hon. members to
give their attention to such alterations as they may suggest. It will be better to transpose some of the clauses.
With reference to Sir Edward Braddon's amendment, which is put in a better form than that suggested
by Mr. Symon, I do not think there is any actual necessity for it. I find in Maxwell on "Interpretation of
Statutes," 1st edition, page 192, this passage:
It is where the enactment would prejudicially affect vested rights, or the legal character of past Acts,
that the presumption against a retrospective operation is strongest. Every Statute which takes away or
impairs vested rights acquired under existing laws, or create a new obligation, or imposes a new duty,
or attaches a new disability in respect of transactions or considerations already past, must be
presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus
the provision of the Statute of Frauds, that no action should be brought to charge any person on any
agreement made in consideration of marriage, unless the agreement were in writing, was held not to
apply to an agreement which had been made before the Act was passed. The Mortmain Act, in the
same way, was held not to apply to a devise made before it was enacted. So it was held that the Act of 8
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& 9 Vict., c. 106, which made all wagers void, and enacted that no action should be brought or
maintained for a wager, applied only to wagers made after the Act was passed.
Sir GEORGE TURNER: There is no doubt about those cases, I should say.
Mr. BARTON: In subsequent editions these examples are multiplied. The principle underlying the
matter is this: that a court in construing an Act assumes that Parliament never intended to do a thing
which is unjust. I am quite sure that Mr. Symon will agree that the provision is not necessary.
Mr. SYMON: Hear, hear.

END QUOTE
10

QUOTE
Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the
point. All that is intended is that there shall be some process of law by which the parties accused must be
heard.
15
20
25
Mr. HIGGINS.-Both sides heard.

Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything
the state thinks fit. This provision simply assures that there shall be some form by which a person
accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a
first principle in criminal law now? I cannot understand any one objecting to this proposal.
END QUOTE
The last quotation was made on 8-2-1898 whereas the 2-1-1901 Gazetted Proclamation altered
that the Governor must ensure an impartial administration of justice and so this is an
implication of separation of powers which the State Parliament of Victoria cannot override.
The following are some of the numerous statements by various Delegates to the
Constitution Convention making clear that once the commonwealth legislate then the states
no longer possesses any legislative powers in that field.
30
35

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: The moment the commonwealth exercises the
power, the states must retire from that field of legislation.
END QUOTE
Australasian Convention),
QUOTE
Colonel SMITH: A municipal corporation can borrow without the consent of the state parliament, and
why should not the state parliament have a similar power?
40
45
(Official Record of the Debates of the National
Mr. MUNRO: The hon. member is going away from the question with which I am dealing. The
municipal corporations that borrow upon the security of their own assets can only do so upon the
authority of an act of parliament giving them that power; but the parliament that gives the power to
borrow did not take over their debts.
END QUOTE
.

QUOTE
50
Mr. BARTON (New South Wales).-If this is left as an exclusive power the laws of the states will
nevertheless remain in force under clause 100.
Mr. TRENWITH.-Would the states still proceed to make laws?
Mr. BARTON.-Not after this power of legislation comes into force. Their existing laws will, however,
remain. If this is exclusive they can make no new laws, but the necessity of making these new laws will be
all the more forced on the Commonwealth.
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END QUOTE
QUOTE
Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon the
establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to
be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be
postponed until legislation takes place. But may you not then have a concurrent power, and may not the
competence of the local Legislature to legislate in the matter be continued as long as the legislation is not in
contradiction of federal legislation?
10
Mr. DEAKIN.-That is the point.

Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the
exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may only
come into being on the passing of legislation, may it not still be said that on the passing of exclusive
legislation the power of the local Parliaments to legislate is extinguished, but that on the passing of
concurrent legislation that power does not cease?
15
Mr. REID (New South Wales).-I think that enough has now been said on this subject by honorable
members both sides of the chamber, and I have only a very few remarks to offer. It appears that if the
sub-section remains where it is state laws will be valid until federal legislation, but the states will not be
able to alter or improve those laws during the possibly long interval between federation and federal
legislation. Under these circumstances, as we leave to the states for an indefinite time the power of
maintaining the laws they have, we should grant to them the power of improving those laws. It would
recommend the Constitution more to a large number of persons if we put the sub-section in clause 52,
thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislates
for all.
20
25
END QUOTE
QUOTE
30
Mr. GLYNN (South Australia).-I desire to call the attention of the leader of the Convention to an
apparent vagueness in the word "exclusive," to which reference has not yet been made. The word
"exclusive," no matter at what time the power arises, whether on the coming into being of the
Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does
mean, that the power of the state to legislate ceases. On the question of whether the exclusive power
under this provision comes into being with the establishment of the Commonwealth, I would call the
attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive
power arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties
being vested in the Federal Parliament, but the second paragraph says-
35
But this exclusive power shall not come into force until uniform duties of customs have been imposed
by the Parliament.
40
It would appear that without that limitation the exclusive power would come into force at once, and the
position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255]
stands the state could no longer legislate with regard to Chinese.
45
50
55
Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediately
on the establishment of the Commonwealth.
END QUOTE
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of those points
enumerated in clause 52, that instant the whole State law on the subject is dead. There cannot be two
laws, one Federal and one State, on the same subject. But that I merely mention as almost a verbal
criticism, because there is no doubt, whatever that the intention of the framers was not to propose any
complication of the kind.
END QUOTE
.
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10

QUOTE
The Hon. R.E. O'CONNOR (New South Wales)[3.18]: We ought to be careful not to load the
commonwealth with any more duties than are absolutely necessary. Although it is quite true that this
power is permissive, you will always find that if once power is given to the commonwealth to legislate
on a particular question, there will be continual pressure brought to bear on the commonwealth to
exercise that power. The moment the commonwealth exercises the power, the states must retire from
that field of legislation.
END QUOTE
.

QUOTE
Mr. REID
The object is this, that for some time to come it will not be possible for the Federal Legislature to pass
laws on these subjects, and it is necessary to have some laws on them-the state laws if they exist-until
federal laws are enacted; but the moment a federal law is passed on any one of these subjects, under
the provision under the head of "States" the federal law prevails over the state law.
15
END QUOTE
.
20
25
30
35
QUOTE
Mr. DEAKIN.-My point is that by the requests of different colonies at different times you may arrive at a
position in which all the colonies have adopted a particular law, and it is necessary for the working of that law
that certain fees, charges, or taxation should be imposed. That law now relates to the whole of the Union,
because every state has come under it. As I read clause 52, the Federal Parliament will have no power,
until the law has thus become absolutely federal, to impose taxation to provide the necessary revenue
for carrying out that law. Another difficulty of the sub-section is the question whether, even when a
state has referred a matter to the federal authority, and federal legislation takes place on it, it has anyand if any, what-power of amending or repealing the law by which it referred the question? I should be
inclined to think it had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not
be possible for it afterwards to revoke its reference.
END QUOTE
.

QUOTE
Mr. HIGGINS.-Clause 84 was intended to mean that the power referred to should not be exclusive until
uniform duties of customs had been imposed.
40
45
Mr. BARRON.-There is no exclusive power for a period of two years, but by a proviso the power becomes
exclusive at the end of that time. Where there is no such proviso the exclusive power must operate, at any
rate, from the date of the election of the Federal Legislature.
Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon the
establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to be
removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power may be
postponed until legislation takes place. But may you not then have a concurrent power, and may not the
competence of the local Legislature to legislate in the matter be continued as long as the legislation is not in
contradiction of federal legislation?
Mr. DEAKIN.-That is the point.
50
55
Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the
exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may only
come into being on the passing of legislation, may it not still be said that on the passing of exclusive
legislation the power of the local Parliaments to legislate is extinguished, but that on the passing of concurrent
legislation that power does not cease?
END QUOTE
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10
15
20
25
30
QUOTE Mr. BARTON.Under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition
against the exercise of such a power.
END QUOTE
.

QUOTE Mr. BARTON.The position with regard to this Constitution is that it has no legislative power, except that which is
actually given to it in express terms or which is necessary or incidental to a power given.
END QUOTE
QUOTE
Mr. BARTON.-Yes, since then, as is pointed out in a little handbook which my honorable friend lent me.
But the question for us to consider is whether a court like the Federal High Court or the Privy Council would
ever come to such a conclusion. One would think it highly improbable. The real question that may arise under
this Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise
of any religion. I take it that in the absence of a provision in the Constitution conferring that power
upon the Commonwealth it will be impossible for the Commonwealth to do so. For this reason I think
we need scarcely trouble ourselves to impose any restrictions. Under a Constitution like this, the
withholding of a power from the Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
.
QUOTE
Mr. BARTON.-They do not require to get authority from home, for this reason: That the local
Constitutions empower the colonies separately to make laws for the peace, order, and good government
of the community, and that is without restriction, except such small restrictions as are imposed by the
Constitutions themselves, and, of course, the necessary restriction that they can only legislate for their
own territory. The position with regard to this Constitution is that it has no legislative power, except
that which is actually given to it in express terms or which is necessary or incidental to a power given.
END QUOTE
35
40

QUOTE
Mr. OCONNOR.-Directly it is exercised it becomes an exclusive power, and there is no doubt that it will
be exercised.
END QUOTE
QUOTE Mr. HIGGINS.-
45
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55
With this liberal stand firmly taken by the ministers, the religious objection was speedily over-ruled.
And now, sir, it will be observed that in the Constitution of the United States of America there was not any
such recognition in the preamble, and it is proposed that there shall be in our preamble. I am very sorry that
those who first propounded this addition to the preamble did not tell the people with what object it was to be
put in. They, no doubt, were perfectly fair and honest in their object, but they had read more than most people
as to what had happened in the state of America, and I think, in all frankness, the people ought to have been
told that there was a direct object and purpose in view. Now, in 1892 there was a decision in regard to the
New York difficulty which has put all the fat in the fire. It was this: There was a law passed by the state of
New York, which was to the effect that there should be no labour imported from abroad for the
purpose of employers in the state of New York. There happened to be a clergyman imported from
England to fill the pulpit of a church in Broadway, in New York, and it was urged that this clergyman
was a labourer imported from abroad.
Mr. SYMON.-A labourer from the vine-yard.
Mr. HIGGINS.-The vineyard idea strikes the honorable member forcibly, no doubt, after his experience as
a vigneron. The result was that the question as to whether this clergyman had not been imported against the
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laws of the state of New York was brought up before several courts and gravely discussed. One court held
that it was a breach of the Act to import the clergy-man from abroad, but the Supreme Court of the states,
when the question was referred to it, held that it was not a breach of the law, and they also went on to say that
Congress never meant to interfere with the importation of clergy-men, because that was a Christian country.
And for the purposes of establishing that it was a Christian country all through the states of America they
went into elaborate charters and documents to show that from the first it had been a Christian country, and of
course they were able to show that most of the states had been founded by denominations for the sake of their
own adherents. But what happened in consequence of that decision? There has been a recrudescence of
religious strifes throughout the United States, which I could never have believed would have happened-a
lifting of banners of those who wish to impose, for instance, a compulsory sabbath all through, in, and upon
every state, and a lifting of the banner of those who oppose that movement.
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Mr. FRASER.-Which side are you on?
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Mr. HIGGINS.-I think the honorable member's interjection is beside the question, and wholly unfair. This
matter may be put upon broad grounds, and not upon the matter of differences between us. I think that our
feeling is that we ought not to do anything under this Constitution which will alienate from giving an earnest
"Aye" to this Bill a large body of honest and good people, if we can avoid that without at the same time
inflicting irreparable harm on the Constitution. I should prefer to rest on the fact that the powers of the
Federal Parliament are limited under the Constitution itself, and that the Federal Parliament has no power
to do anything except what is expressly given to it, or what is by implication necessary. But, although
that was the case when this clause was put in, if there is inserted in the preamble an express recognition of the
Almighty in [start page 656] the Constitution, the position which met the draftsmen of this clause will no
longer be applicable, inasmuch as there will be in the preamble of this Constitution a declaration of a
religious character, from which, as experience shows, a number of corollaries will be deduced, and
upon which attempts will be made, from time to time, to pass legislation of a character which I do not
think we intend to give the Federal Commonwealth power to pass. I think that, whatever is done in this
matter, if anything is done, ought to be done by the states. I do not think we ought to interfere with the
right of the states to do anything they choose, if they think fit to do anything; but I do think that in
establishing this Federal Commonwealth we ought to take care to reassure people that there will be no
interference with them. There is, I understand, in America, a large body of people called Seventh Day
Adventists. There are a few here. Rightly or wrongly, it is not for us to judge, they hold a theory that they are
not obliged to keep Sunday. They cannot afford two holidays in the week, and, therefore, they keep Saturday.
Well, these people in America are excited beyond bounds at the attempts which have been made since 1892 to
establish a compulsory Sunday in the United States. Here, these people are few in number, I believe-I do not
know much about them-but I understand that they are exceedingly troubled over the fact that through putting
the words in question in the preamble there may be an attempt to enforce the observance of Sunday upon
them, whereas they observe Saturday.
END QUOTE
It appears to me that only utter fools would rely upon the personal interpretation by Quick &
Garran a mere afterwards written statement, that even the High Court of Australia has made
clear it is at times incorrect, then to research h the true facts from fiction.
.
In legal terms therefore any state legislation such as to Aboriginals not falling within s25 of the
constitution is unconstitutional since 1967 referendum after the Commonwealth legislated as to
Aboriginal issues.
.
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Likewise the Northern Territory Act is unconstitutional because it is not an act dealing with all
persons of that race as s51(xxvi) was to provide for to discriminate against foreign
coloured inferior races (I will not delve into all details of this now) as to protect Australian
jobs.
Western Australia forcing people from remote communities would be unconstitutional if it were
a race issue.
.
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As rates in Sydney Municipal Council v Commonwealth 1904 was deemed to be an exercise of

State land taxation legislative powers, which the Commonwealth made an exclusive
Commonwealth legislative powers when it commenced on 11-11-01910 its Land Tax Office then
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it never again can revert back to the States and so all municipal/shire council rates are as such
unconstitutional, since 11-11-1910!
Also State legislating as to laser and other speed cameras are doing so unconstitutional because
the commonwealth having legislated as to weight and measures this became an exclusive
legislative power. As such all and any Infringement Notice based upon those kind of cameras are
unconstitutional.
There is a lot more to it but it is an elaborate job to state it all and not something I now consider
required. Then again with more than 780 documents on my blog about constitutional and other
issues one can always log in to www.scribd.com/inspectorrikati.
I have always held it would be an insult for anyone to hold that I am a lawyer as if I am too
brainwashed in legal studies.
.
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As least my (now) step daughter qualified her statement to me, years after she was the opponent
at the bar table. As she indicated I was the better lawyer of the day as I am like the old English
lawyers who learned from doing cases.
Who needs a lawyer if the lawyers doesnt even understanding the basic building blocks of the
legal system?
I below will give an example of a correspondence I wrote about citizenship
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QUOTE 20150708-G. H. Schorel-Hlavka O.W.B. to Mr Gregory Melleuish-Re constitutional issues-etc
WITHOUT PREJUDICE
8-7-2015
Mr Gregory Melleuish
gmelleui@uow.edu.au
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Cc:
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Bill Shorten Bill.Shorten.MP@aph.gov.au

Daniel Andrews Premier Victoria daniel.andrews@parliament.vic.gov.au
Senator George Brandis senator.brandis@aph.gov.au
George Williams george.williams@unsw.edu.au
Mr Clive Palmer Admin@PalmerUnited.com
Jacqui Lambie senator.ketter@aph.gov.au
Mr Tony Abbott PM C/o josh.frydenberg.mp@aph.gov.au
Ref; 20150708-G. H. Schorel-Hlavka O.W.B. to Mr Gregory Melleuish-Re constitutional issues-etc
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Gregory,
I refer to your article;
http://theconversation.com/australias-constitution-works-because-it-doesnt-define-national-identity43253?utm_medium=email&utm_campaign=Latest+from+The+Conversation+for+July+7+2015++3068&utm_content=Latest+from+The+Conversation+for+July+7+2015++3068+CID_bf4728db17650af06570f1fffd6dcde9&utm_source=campaign_monitor&utm_term=Australias%20Con
stitution%20works%20because%20it%20doesnt%20define%20national%20identity
QUOTE
Australias Constitution works because it doesnt define national identity
July 7, 2015 6.11am AEST
Gregory Melleuish
END QUOTE
and
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QUOTE
When Australias Founding Fathers came together in the 1890s to draw up a constitution to enable the
colonies to federate, what did they think they were doing? Looking at the debates and the Constitution itself,
one thing is certain. They were not drawing up a document that defined what it means to be an Australian.
END QUOTE
When you referred to Looking at the debates I assumed you would have actually read the
Hansard records of the debates, as after all it I view is implies in it. However, I then later came
across your further statement by you:
QUOTE
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Gregory Melleuish
Associate Professor, School of History and Politics at University of Wollongong
In reply to Chris Borthwick
Of course there was no such thing as an Australian citizen in 1901, only British subjects. The
race power was included primarily to deal with the Chinese and Pacific Islanders. Unfortunately
Australians of that time were highly prejudiced and we still pay for their attitudes in the way
Australia is viewed in Asia. The removal of the race power would send very positive messages to
our neighbours that we have finally put White Australia to rest. The important thing is thankfully
that White Australia was not enshrined in the Constitution, which may have happened if its
framers had wanted to produce a document about Australian national character (identity is a much
later concept). One reason for this is that the British government would never have allowed it
(remember that the Constitution was a British Act of Parliament). When immigration restriction
was introduced it was probably British influence which prevented an even harsher piece of
legislation. The important point is that by making 'White Australia' a piece of legislation rather
than a constitutional principle the politicians of that day also made it easier to get rid of when
attitudes changed. Getting rid of the race power will finally complete that process.
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END QUOTE
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As a CONSTITUTIONALIST it appears to me you havent got a clue what you are talking
about. I hold the constitution is as very exiting document however I am well aware most
lawyers/judges havent got a clue as to what the true meaning and application of the constitution
is about. Again you stated;
QUOTE
Of course there was no such thing as an Australian citizen in 1901, only British subjects.
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END QUOTE
I will quote some items and may add that on 19 July 2006 I comprehensive defeated the
Commonwealth of Australia (and State /Territory Attorney-Generals) on compulsory voting as
this is unconstitutional, in the county court of Victoria exercising federal jurisdiction.
I will quote below some of my submissions during the court hearing of which none was
challenged by any lawyers.
You can check the Hansard debates that I correctly refer to it time and time again.
ADDRESS TO THE COURT, Part 2
County Court of Victoria, Case numbers T01567737 & Q10897630
QUOTE (Hansard 2-3-1898 Constitution Convention Debates; Official Record of the Debates of the National
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Mr. SYMON.-Very likely not. What I want to know is, if there is anybody who will come under the
operation of the law, so as to be a citizen of the Commonwealth, who would not also be entitled to be a
citizen of the state? There ought to be no opportunity for such discrimination as would allow a section of a
state to remain outside the pale of the Commonwealth, except with regard to legislation as to aliens. Dual
citizenship exists, but it is not dual citizenship of persons, it is dual citizenship in each person. There may
be two men-Jones and Smith-in one state, both of whom are citizens of the state, but one only is a
citizen of the Commonwealth. That would not be the dual citizenship meant. What is meant is a dual
citizenship in Mr. Trenwith and myself. That is to say, I am a citizen of the state and I am also a citizen
of the Commonwealth; that is the dual citizenship. That does not affect the operation of this clause at all.
But if we introduce this clause, it is open to the whole of the powerful criticism of Mr. O'Connor and those
who say that it is putting on the face of the Constitution an unnecessary provision, and one which we do not
expect will be exercised adversely or improperly, and, therefore, it is much better to be left out. Let us, in
dealing with this question, be as careful as we possibly, can that we do not qualify the citizenship of this
Commonwealth in any way or exclude anybody [start page 1764] from it, and let us do that with precision
and clearness. As a citizen of a state I claim the right to be a citizen of the Commonwealth. I do not want
to place in the hands of the Commonwealth Parliament, however much I may be prepared to trust it,
the right of depriving me of citizenship. I put this only as an argument, because no one would anticipate
such a thing, but the Commonwealth Parliament might say that nobody possessed of less than 1,000 a year
should be a citizen of the Federation. You are putting that power in the hands of Parliament.
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Mr. HIGGINS.-Why not?
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must rest this
Constitution on a foundation that we understand, and we mean that every citizen of a state shall be a
citizen of the Commonwealth, and that the Commonwealth shall have no right to withdraw, qualify, or
restrict those rights of citizenship, except with regard to one particular set of people who are subject to
disabilities, as aliens, and so on. Subject to that limitation, we ought not, under this Constitution, to hand
over our birth right as citizens to anybody, Federal Parliament or any one else, and I hope the amendment
will not be accepted.
And
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Mr. BARTON.-If the honorable member's exclamation means more than I have explained, then the best
thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all
the persons residing in the Commonwealth, independently of any law of any state. That is not intended, but
that is what the expression "Trust the Federal Parliament" would mean unless it was limited by the
consideration I have laid down. I am sure Dr. Quick will see that he is using a word that has not a definition in
English constitutional law, and which is not otherwise defined in this Constitution. He will be giving to the
Commonwealth Parliament a power, not only of dealing with the rights of citizenship, but of defining
those rights even within the very narrowest limits, so that the citizenship of a state might be worth
nothing; or of extending them in one direction, and narrowing them in another, so that a subject living
in one of the states would scarcely know whether he was on his head or his heels. Under the Constitution
we give subjects political rights to enable the Parliament to legislate with regard to the suffrage, and pending
that legislation we give the qualification of electors. It is that qualification of electors which is really the sum
and substance of political liberty, and we have defined that. If we are going to give the Federal Parliament
power to legislate as it pleases with regard to Commonwealth citizenship, not having defined it, we may
be enabling the Parliament to pass legislation that would really defeat all the principles inserted
elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is not what is meant
by the term "Trust the Federal Parliament."
Mr. HIGGINS.-You give the Federal Parliament power to naturalize.
30
Mr. BARTON.-Yes; and in doing that we give them power to make persons subjects of the British Empire.
Have we not done enough? We allow them to naturalize aliens. That is a power which, with the consent
of the Imperial authority, has been carried into legislation by the various colonies, and, of course, we
cannot do less for the Commonwealth than we have done for the colonies.
END QUOTE
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QUOTE
Talbot v. Janson, 3 U.S. 133 (1795)
Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as well
as fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen
from the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new
order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is
the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie;
allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority.
Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude.
Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is
perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of
citizenship; which it can neither serve to controul, nor to elucidate. And yet, even among the nations, in
which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there are
striking deviations that demonstrate the invincible power of truth, and the homage, which, under every
modification of government, must be paid to the inherent rights of man.
END QUOTE
55
QUOTE
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.
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END QUOTE
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QUOTE
The terms Australian citizen, Australian citizens , Australian citizenship, Commonwealth citizens, federal
citizen, citizen of the Commonwealth were used ongoing by the Framers of the Constitution, as shown below,
and as such were terms not as to nationality but in regard of citizenship as being a resident in the colonies (now
States) and the Commonwealth of Australia. Therefore any constitutionalist, as I am, is or should be aware that the
term Australian citizenship cannot be held to relate to nationality. Neither that there can be an Australian
nationality merely because some judges happen to desire to make such a declaration as the proper powers to
legislate for this is to follow the procedures within Section 128 of the Constitution.
13-02-1890 Re; Australian citizen
13-03-1891 Re; Australian citizens
Re; dual citizenship
26-03-1897 Re; citizen of the Commonwealth
29-03-1897 Re; Dual citizenship
30-03-1897 Re; federal citizen
Re; citizen of the Commonwealth
15-04-1897 Re; Dual citizenship
Re; Commonwealth citizenship
28-01-1898 Re; Australian citizenship
Re; Commonwealth citizens
Re; federal citizenship
55
Such as Hansard 8-2-1898 Constitution Convention Debates
60
Mr. SYMON.-Yes. Mr. Wise asked why should New South Wales or Victoria-to take a case which is extremely
unlikely to occur-prohibit a citizen of the neighbouring colony from acquiring property in the legislating colony, or
only allow him to acquire it under adverse conditions? But why not? The whole control of the lands of the state is
left in that state. The state can impose what conditions it pleases-conditions of residence, or anything else-and I
am not aware that a state has surrendered the control of the particular administration of its own lands, or of
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anything that is left to it for the exercise of its power and the administration of its affairs. I would much prefer,
if there is to be a clause introduced, to have the amendment suggested by Tasmania, subject to one modification,
omitting the words-"and all other persons owing allegiance to the Queen." That would re-open the whole question
as to whether an alien, not admitted to the citizenship here-a person who, under the provisions with regard to
immigration, is prohibited from entering our territory, or is only allowed to enter it under certain conditionswould be given the same privileges and immunities as a citizen of the Commonwealth. Those words, it seems to
me, should come out, and we should confine the operation of this amendment so as to secure the rights of
citizenship to the citizens of the Commonwealth. I think, therefore, that with some modification the amendment
suggested by Tasmania would be a proper one to adopt.
And
Mr. KINGSTON.-I say we are creating a Commonwealth in which I hope there will be a federal
citizenship, and I shall be glad indeed to see the powers of the Federal Parliament enlarged to enable that
body to legislate, not only with reference to naturalization and aliens, but also with reference to the rights and
privileges of federal citizenship.
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An HONORABLE: MEMBER.-What is the meaning of citizenship?

Mr. KINGSTON.-It is not defined here, but it ought to be defined in the Constitution, or else we ought to
give power to the Federal Parliament to define it. And, after having defined what shall constitute Australian
citizenship for the purposes of the Commonwealth, we ought to carefully prevent any state legislating in such
a way as to deprive any citizen of the Commonwealth of any privileges which citizenship of the
Commonwealth confers within its borders. I have the honour to come from a state which has already adopted
a system of absentee taxation, but I do not hesitate to say, speaking on my own individual account, that I
think the continuance of that system, applied to citizens of the Commonwealth resident in other states of the
Commonwealth, would be a great mistake and an unfederal act.
Mr. HIGGINS.-If a rich South Australian went to live in Tasmania, on account of the cool climate, would
you allow the imposition of the absentee tax on him?
Mr. KINGSTON.-I do not think it ought to be imposed on him.
END QUOTE
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QUOTE
Mr Quick proposed to give the Commonwealth of Australia constitutional powers to define/declare

CITIZENSHIP but this was defeated/refused by the Delegates!
35
I took occasion to indicate that in creating a federal citizenship, and in defining the qualifications of
that federal citizenship, we were not in any way interfering with our position as subjects of the British
Empire. It would be beyond the scope of the Constitution to do that.
Therefore, even if the amendment of Mr Quick had succeeded it still was not intended to give any legislative powers
to the commonwealth of australia to interfere with the rights of any person as a British subject.
Hansard 2-3-1898 Constitution Convention Debates;
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Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that we are all alike
subjects of the British Crown.
Dr. QUICK.-If we are to have a citizenship of the Commonwealth higher, more comprehensive, and nobler
than that of the states, I would ask why is it not implanted in the Constitution? Mr. Barton was not present
when I made my remarks in proposing the clause. I then-anticipated the point he has raised as to the position
we occupy as subjects of the British Empire. I took occasion to indicate that in creating a federal
citizenship, and in defining the qualifications of that federal citizenship, we were not in any way
interfering with our position as subjects of the British Empire. It would be beyond the scope of the
Constitution to do that. We might be citizens of a city, citizens of a colony, or citizens of a
Commonwealth, but we would still be, subjects of the Queen. I see therefore nothing unconstitutional,
nothing contrary to our instincts as British subjects, in proposing to place power in this Constitution to
enable the Federal Parliament to deal with the question of federal citizenship. An objection has been raised in
various quarters-as by the honorable and learned members (Mr. O'Connor and Mr. Wise)-to the effect that we
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ought to define federal citizenship in the Constitution itself. I have considered this matter very carefully, and
it has seemed to me that it would be most difficult and invidious, if not almost impossible, to frame a
satisfactory definition. There is in the Constitution of the United States of America a cast-iron definition
of citizenship, which has been found to be absolutely unworkable, because, among other things, it says
that a citizen of the United States shall be a natural-born or naturalized citizen within the jurisdiction
of the United States, and it has been found that that excludes the children of citizens born outside the
limits of this jurisdiction. That shows the danger of attempting definitions, and although I have placed
a proposed clause defining federal citizenship upon the notice-paper, the subject, seems to me
surrounded with the greatest difficulty, and no doubt the honorable and learned members (Mr. Wise,
Mr. O'Connor, and Mr. Symon) would be the first to attack any definition, and would be able to
perforate it. In my opinion, it would be undesirable to implant a cast-iron definition of citizenship in
the Constitution, because it would be better to leave the question more elastic, more open to
consideration, and more yielding to the advancing changes and requirements of the times.
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END QUOTE
15
Dr Quick submitted amendment was defeated!
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QUOTE
Mr. BARTON (New South Wales).-That is an alteration of substance which I will explain. I agree with the
object of the clause as proposed to be limited by the amendment which I am now proposing. That is to say, I
quite agree that any elector who, at the establishment of the Commonwealth or afterwards, has, under the
law in force in any state at the establishment of the Commonwealth, the right to vote at elections should not
be prevented by any law of the Commonwealth from exercising that right.
END QUOTE
In the following quotation the wording Mr. O'CONNOR: The amendment you have carried already
preserves their votes. Refers to Mr Bartons previous quoted statement.
.
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QUOTE
Clause 120-In reckoning the numbers of the people of a State or other part of the Commonwealth aboriginal
natives shall not be counted.
35
Dr. COCKBURN: As a general principle I think this is quite right. But in this colony, and I suppose
in some of the other colonies, there are a number of natives who are on the rolls, and they ought not to
be debarred from voting.
Mr. DEAKIN: This only determines the number of your representatives, and the aboriginal
population is too small to affect that in the least degree.
Mr. BARTON: It is only for the purpose of determining the quota.
40
Dr. COCKBURN: Is that perfectly clear? Even then, as a matter of principle, they ought not to be
deducted.
Mr. O'CONNOR: The amendment you have carried already preserves their votes.
Dr. COCKBURN: I think these natives ought to be preserved as component parts in reckoning up
the people. I can point out one place where 100 or 200 of these aboriginals vote.
45
Mr. DEAKIN: Well, it will take 26,000 to affect one vote.

Mr. WALKER: I would point out to Dr. Cockburn that one point in connection with this matter is, that
when we come to divide the expenses of the Federal Government per capita, if he leaves out these
aboriginals South Australia will have so much the less to pay, whilst if they are counted South
Australia will have so much the more to pay.
50
Clause, as read, agreed to.

END QUOTE
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Meaning that the White Only legislation that denied Aboriginals to vote was unconstitutional.
This as Aboriginals who had colonial/state citizenship and so franchise (right to voter) were
entitled and did so vote in the first federal election. I recall that Mr M King of the Heidelberg
(federal) Electoral Office disputed this, and I then pointed out to a poster he had on display. That
stated that Aboriginals voted in the first federal election. He never knew this either!
The 1967 ss51(xxvi) referendum was a con-job referendum as Aboriginals couldnt be provided
with citizenship where they already possessed this, and s41 of the constitution specifically
protected their right to vote when they had obtained colonial/state right to vote.
The problem was Aboriginals and non-Aboriginals were conned to vote for a referendum that
had a hidden agenda. And, as I exposed the Northern Territory Intervention Act is not a law
within the provisions of ss51(xxvi) and as such the politicians now seek to use Recognise to
con electors so they then can justify the Northern Territory Intervention Act and perhaps other
draconic legislation they may have so to say in the pipeline.
You may check out my statements at http://sharonfirebrace.com/ or just download over 745
documents from my blog at www.scribd.com/inspectorrikati.
The above is a mere so to say tip of the iceberg about citizenship but safe to say I am deeply
concerned as to your ability/competence to teach politics/constitutional issues when it seems to
me you havent got a clue as to basic issues.
Let be clear about it, I challenged the Commonwealth of Australia with an s78B NOTICE OF
CONSTITUTIONAL MATTERS and as such it was for all Attorney-Generals to challenge my
submissions. None did and would abide by the Court decision that upheld both appeals.
As such, where time of any appeals is well passed since 19 July 2006 and none of the AttorneyGenerals can ever re-litigate the matter against me, (See Wakim HCA 27 of 1999 for this also
then as the constitution was not created just to suit me but applies to any citizens who has
franchise/electoral rights then all electors are entitled to not to vote if they desire not to do so
without any risk of being fined.
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In my view, people like you who write about something that I view you lack any competence in
and yet are teaching about it makes it worse because students may view you know what you are
talking about.
It must be clear that the Framers of the Constitution did on numerous occasions refer to
Australian citizenship.
QUOTE Mr. OCONNOR (New South Wales).But let us take first his position in regard to the Commonwealth. Under the power which you have
given to the Federal Parliament to make laws regulating immigration and aliens, you embrace every
possible set of circumstances under which any person may enter the bounds of the Commonwealth. As
you have power to prevent any person from entering any part of the Commonwealth, you have also the
power to prevent any person from becoming a member of the Commonwealth community. There is no
territorial entity coincident with the Commonwealth. Every part of the Commonwealth territory is part
of the state, and it is only by virtue of his citizenship of a state that any person within the bounds of the
Commonwealth will have any political rights under the Constitution. Of course, when I speak of a state,
I include also any territory occupying the position of quasi-state, which, of course, stands in exactly the
same position.
Mr. WISE-Is that clear?
[start page 1754]
Mr. OCONNOR.-If the territory does not stand in the same position as a state, it is admitted to
political rights at the will of the Commonwealth, and upon such terms as the Commonwealth may
impose. Every person who has rights as a member of the Commonwealth must be a citizen either of
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some state or some territory. It is only by virtue of his citizenship of a state or of a territory that he has
any political rights in the Commonwealth.
Mr. WISE.-Before the 14th amendment was passed it was very much questioned whether a citizen of
Washington had any rights at all, because Washington was only a territory.
Mr. OCONNOR.-Yes; but what the honorable and learned member says really supports my
argument. The thirteen original states occupied a very small portion of the area now forming the
United States of America, and of course the question might arise as to what the position of a person
who is not resident of or a citizen of any state, but a resident of a territory, might be in relation to the
Commonwealth. But I do not think that that question will arise here, because we cannot imagine, I
think, any portion of the Commonwealth becoming a territory now, unless it has been a state at one
time-unless it is some portion of a state which has been ceded to the Commonwealth, and in the cession
to the Commonwealth there is no doubt that care will be taken to define what the rights of the residents
of the territory would be in regard to the political rights of the Commonwealth. It appears to me quite
clear, as regards the right of any person from the outside to become a member of the Commonwealth,
that the power to regulate immigration and emigration, and the power to deal with aliens, give the right
to define who shall be citizens, as coming from the outside world. Now, in regard to the citizens of the
states-that is, those who are here already, apart from these laws-every citizen of a state having certain
political rights is entitled to all the rights of citizenship in the Commonwealth, necessarily without a
definition at all.
END QUOTE
QUOTE Mr. THYNNE:
The union of these colonies must take place in either one or two ways, namely, either by a unification under
one all-powerful parliament, or by a federation which gives to the central federal parliament certain limited
powers and reserves to the other parliaments all other powers. As I think we may be in danger of overlooking
some of the first principles connected with federation, I may be pardoned if I briefly define some of the
characteristics of a federation. I shall quote from Mr. Dicey's recent work, which is very clear in its language.
He says:
One of the characteristics of a federation is that the law of the constitution must be either legally
immutable or else capable of being changed only by some authority above and beyond the ordinary
legislative bodies, whether federal or state legislatures, existing under the constitution.
END QUOTE
Re Wakim [1999] HCA 27 (17 June 1999)
KIRBY J. : A legislature cannot, by preambular assertions, recite itself into constitution power where none exists.
QUOTE:-
40
..However, the judiciary has no power to amend or modernize the Constitution to give effect to what
Judges think is in the best public interest. The function of the judiciary, including the function of this
Court, is to give effect to the intention of the makers of the Constitution as evinced by the terms in which
they expressed that intention. That necessarily means that decisions, taken almost a century ago by
people long dead, bind the people of Australia today even in cases where most people agree that those
decisions are out of touch with the present needs of Australian society.
45
":.. The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers"
Gaudron J (Wakim, HCA27\99)
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"... But in the interpretation of the Constitution the connotation or connotations of its words should
remain constant. We are not to give words a meaning different from any meaning which they could have
borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.
"
Windeyer J (Ex parte Professional Engineers' Association)
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte
Amann; Spi [1999] HCA 27 (17 June 1999)
QUOTE
Constitutional interpretation
p28
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29
1.
The starting point for a principled interpretation of the Constitution is the search for the intention of its
makers[51]. That does not mean a search for their subjective beliefs, hopes or expectations. Constitutional
interpretation is not a search for the mental states of those who made, or for that matter approved or
enacted, the Constitution. The intention of its makers can only be deduced from the words that they used in
the historical context in which they used them[52]. In a paper on constitutional interpretation, presented at
Fordham University in 1996, Professor Ronald Dworkin argued, correctly in my opinion[53]:
"We must begin, in my view, by asking what - on the best evidence available - the
authors of the text in question intended to say. That is an exercise in what I have called
constructive interpretation[54]. It does not mean peeking inside the skulls of people dead
for centuries. It means trying to make the best sense we can of an historical event someone, or a social group with particular responsibilities, speaking or writing in a
particular way on a particular occasion."
10
END QUOTE
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The High Court of Australia in my view committed treason in Sue v Hill to purport that the
Commonwealth of Australia is an independent country:
QUOTE
Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal
Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain
and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the
application of the word Commonwealth is to the political Union which is sought to be established. It is not
intended there to have any relation whatever to the name of the country or nation which we are going to create
under that Union . The second part of the preamble goes on to say that it is expedient to make provision for
the admission of other colonies into the Commonwealth. That is, for admission into this political Union,
which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union
by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
35
40
45
50
55
60

QUOTE Mr. BARTON.Providing, as this Constitution does, for a free people to elect a free Parliament-giving that people
through their Parliament the power of the purse-laying at their mercy from day to day the existence of
any Ministry which dares by corruption, or drifts through ignorance into, the commission of any act
which is unfavorable to the people having this security, it must in its very essence be a free
Constitution. Whatever any one may say to the contrary that is secured in the very way in which the
freedom of the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is no other way of
securing absolute freedom to a people than that, unless you make a different kind of Executive than
that which we contemplate, and then overload your Constitution with legislative provisions to protect
the citizen from interference. Under this Constitution he is saved from every kind of interference.
Under this Constitution he has his voice not only in the, daily government of the country, but in the
daily determination of the question of whom is the Government to consist. There is the guarantee of
freedom in this Constitution. There is the guarantee which none of us have sought to remove, but every
one has sought to strengthen. How we or our work can be accused of not providing for the popular
liberty is something which I hope the critics will now venture to explain, and I think I have made their
work difficult for them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that Constitution; and,
therefore, it can only act as the agents of the people. We have provided for a Judiciary, which will
determine questions arising under this Constitution, and with all other questions which should be dealt
with by a Federal Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our Constitution shall be free:
next, that its government shall be by the will of the people, which is the just result of their freedom: thirdly,
that the Constitution shall not, nor shall any of its provisions, be twisted or perverted, inasmuch as a
court appointed by their own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as the arbiter of the
Constitution. It is appointed not to be above the Constitution, for no citizen is above it, but under it; but
p29
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30
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25
30
35
40
45
50
55
60
it is appointed for the purpose of saying that those who are the instruments of the Constitution-the
Government and the Parliament of the day-shall not become the masters of those whom, as to the
Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of
this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow
degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the
guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense,
the court you are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of
constitutional action, the Commonwealth from dominating the states, or the states from usurping the
sphere of the Commonwealth. Having provided for all these things, I think this Convention has done
well.
END QUOTE
QUOTE Sir JOHN DOWNER.I think we might, on the attempt to found this great Commonwealth, just advance one step, not beyond
the substance of the legislation, but beyond the form of the legislation, of the different colonies, and say
that there shall be embedded in the Constitution the righteous principle that the Ministers of the
Crown and their officials shall be liable for any arbitrary act or wrong they may do, in the same way as
any private person would be.
END QUOTE
QUOTE
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.
END QUOTE
Are you willing to act as a sentry and for starters refrain from deceptive writings?
If you do not understand the basics of the constitution how then can you teach political matters?
I will not refer to numerous issues (as my blog at www.scribd.com/inspectorrikati has plenty of
material about it) but safe to say that Premiers/Prime Minister are not elected, nor is any
government elected.
Perhaps Bundooras La Trobe University (nearby my residence) should make facilities available
so I can teach people like you what the constitution really stands for.
QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the
liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of
liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good
government for the whole of the peoples whom it will embrace and unite.
END QUOTE
And
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the
people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta
for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole
history of the peoples of the world than this question upon which we are about to invite the peoples of
Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new
charter is to be given by the people of Australia to themselves.
END QUOTE
Meaning, that unless you understand and comprehend the legal principles embedded in the
constitution besides what the constitution actually had recorded, you will need badly to be
educated. Your statement The race power was included primarily to deal with the Chinese and Pacific
p30
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31
was utterly in correct also but I will not delve into this now as for the moment you have
enough to try to educate yourself with before you could possibly comprehend other issues.
Islanders.
I look forwards to your reply addressing the issues I raised.

This document is not intended and neither must be perceived to refer to all details/issues.
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!
10
(
)
Awaiting your response, G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
END QUOTE 20150708-G. H. Schorel-Hlavka O.W.B. to Mr Gregory Melleuish-Re constitutional issues-etc
15
This correspondence seeks to expose what I view the incompetence by lawyers to grasp the
basic building blocks of our legal system and how the constitutional framework applies.
I look forwards to your positive reply!
20
This document is not intended and neither must be perceived to refer to all details/issues.
MAY JUSTICE ALWAYS PREVAIL

Our name is our motto!)
(
Awaiting your response,
G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)
p31
26-8-2015

20150826-G. H. Schorel-Hlavka O.W.B. To MR TONY ABBOTT PM-Re Same Sex Relationships and The Constitution & The Legal Profession INCOMPETENCE

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Bill Shorten Bill.Shorten.MP@aph.gov.au

as a CONSTITUTIONALIST I am deeply concerned about the hordes of so called

Transcript 16 March 2009 before Her Honour Habrison J. (Colosimo case)

QUOTE Her Honour at page 21 line 30

Transcript 16 March 2009 page 12 line 22 (MS MORRIS)

Transcript 16 March 2009 page 26 line 14

Transcript 16 March 2009 page 55 line 10 (HER HONOUR HARBISON J)

by Augusto Zimmermann and Lorraine Finlay

Professor George Williams AO

Does the Commonwealth legislation cover the field?

[5] The Commonwealth v Australian Capital Territory[2013] HCA 55, [57].

[17] Section 62 Same-Sex Marriage Bill 2013(WA).

LLB (Hon.), LLM (cum laude), PhD (Mon)

B.A (UWA), LL.B (UWA), LL.M (NUS), LL.M (NYU)

Part VPowers of the Parliament

(viii) astronomical and meteorological observations;

(xvii) bankruptcy and insolvency;

HANSARD 10-03-1891 Constitution Convention Debates

Hansard 15-9-1897 Constitution Convention Debates

Hansard 6-3-1891 Constitution Convention Debates

As s51 doesnt state that the States will have concurrent

160. Legislative Powers.

Hansard 19-4--1897 Constitution Convention Debates

Mr. SYMON: Hear, hear.

Hansard 8-2-1898 Constitution Convention Debates

Mr. HIGGINS.-Both sides heard.

Hansard 22-9-1897 Constitution Convention Debates

(Official Record of the Debates of the National

Hansard 27-1-1898 Constitution Convention Debates

Mr. DEAKIN.-That is the point.

Hansard 30-3-1897 Constitution Convention Debates

Hansard 21-1-1898 Constitution Convention Debates

HANSARD 28-1-1898 Constitution Convention Debates

HANSARD 1-3-1898 Constitution Convention Debates

Hansard 2-3-1898 Constitution Convention Debates

Mr. FRASER.-Which side are you on?

As rates in Sydney Municipal Council v Commonwealth 1904 was deemed to be an exercise of

QUOTE 20150708-G. H. Schorel-Hlavka O.W.B. to Mr Gregory Melleuish-Re constitutional issues-etc

Bill Shorten Bill.Shorten.MP@aph.gov.au

An HONORABLE: MEMBER.-What is the meaning of citizenship?

Mr Quick proposed to give the Commonwealth of Australia constitutional powers to define/declare

Hansard 3-3-1898 Constitution Convention Debates

Mr. DEAKIN: Well, it will take 26,000 to affect one vote.

Clause, as read, agreed to.

Hansard 17-3-1898 Constitution Convention Debates

I look forwards to your reply addressing the issues I raised.

MAY JUSTICE ALWAYS PREVAIL

MAY JUSTICE ALWAYS PREVAIL

G. H. Schorel-Hlavka O. W. B. (Friends call me Gerrit)

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