20150901-G. H. Schorel-Hlavka O.W.B. Re PRESS RELEASE As To Royal Commission Into TUGaC-submission To Disqualify For Bias-Implied Bias-Supplement-1

Page 1
WITHOUT PREJUDICE
The Hon John Dyson Heydon AC QC
C/o submissions@turc.gov.au Legal.TradeUnion@turc.gov.au
Cc:
1-9-2015
Mr Tony Abbott PM
C/o josh.frydenberg.mp@aph.gov.au
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, Sharon Firebrace sharon.firebrace01@bigpond.com
Herald Sun Andrew Bolt news@heraldsun.com.au, readerfeedback@heraldsun.com.au
Mark Robinson mark.robinson@news.com.au jay.clark@news.com.au
Ref; 20150901-G. H. Schorel-Hlavka O.W.B. Re PRESS RELEASE as to Royal Commission into TUGaCsubmission to disqualify for bias-implied bias-supplement-1
Sir,
I noticed from your 31-8-2015 published reasons that you stated (page 1): This Royal
Commission has been in existence since 13 March 2014. In my view this was deceptive in that I
made a 15 February 2014 and again on 5-7-2014 OBJECTION TO JURISDICTION, and to
my knowledge despite various subsequent reminders this was never disposed of. Hence, I view it
was a deceptive/misleading statement.
QUOTE POINT 4 AT PAGE 3
This Commission was established by Letters Patent issued by Her Excellency Quentin 4.Bryce AC, CVO,
Governor-General, on 13 March 2014. These Letters Patent set out the Commissions Terms of Reference.
They may be found in Appendix 1 of the Interim Report. Equivalent Letters Patent were thereafter issued by
the Governor or Administrator of each State. These may be found in Appendixes 3-8 of the Interim Report.
END QUOTE
The omission to declare that there was an OBJECTION TO JURISDICTION which had not
been subjected to a jurisdiction hearing would in my view deceive a FAIR MINDED PERSON
to believe that the Royal commission was validly operating. The presentation of the details with
the omission of the OBJECTION TO JURISDICTION would in my view deceive/mislead a
FAIR MINDED PERSON as to the true legality or the lack thereof of the Royal commission.
POINT AT PAGE
On 30 October 2014 the Governor-General, His Excellency Sir Peter Cosgrove AK, MC, amended the Letters
Patent in two respects. He extended the deadline for delivery of the Commissions Report to 31 December
2015. And he added an additional term of reference. See Appendix 2 of the Interim Report. Equivalent
amended Letters Patent were ultimately issued by the Governor of each State.
END QUOTE
QUOTE POINT 4 AT PAGE 4
Extensive written submissions were exchanged in October-November 2014. Oral argument took place in
November 2014. An Interim Report was delivered to the Governor-General on 15 December 2014. Apart
from Appendixes, it was 1712 pages long. By the time that Report was prepared, 239 witnesses had given
evidence to the Commission. Of those, 33 gave evidence by witness statement or affidavit and were not
required to give oral evidence. Other potential witnesses were interviewed, but were not called when it
became clear that their evidence would not advance the inquiry. The Commission had issued 687 Notices to
Produce. Hearings were conducted in Sydney, Melbourne, Brisbane and Perth. In 2014, the Commission sat
on 16 days in private hearings and on 60 days in public hearings.
END QUOTE
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1-9-2015
G. H. Schorel-Hlavka O.W.B.
INDEPENDENT Consultant (Constitutionalist)
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
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Page 2
It is clear that by issuing Notice to Produce and other formal court procedures the Royal
commission albeit being an executive commission seems to operate as a pseudo court system. It
appears to me ass like a Spanish inquisition, Kangaroo Court and/or Star Chamber Court,
outlaws by the Act Interpretation Act 1980 (Vic)
Granted Royal commissions have existed prior to federation as in fact the Framers of the
Constitution referred to this on 17-4-1897, 21-1-1898, 24-1-1898, 25-1-1898, 31-1-1898 and 142-1898. However, it related mainly to issues regarding water (riparian rights) as to governmental
issues. I view that a Royal commission to pursue persons for criminal issues is not something
that a Royal commission should be involved with, as this must be left to the judiciary, not some
government (executive) witch-hunt. Using Notice to Produce against individuals and others in
my view is to assume the powers of a court but not providing the same protection. Whereas in a
Court of competent jurisdiction the judge is and must be seen to be impartial, here we have a
Royal commission who by its own undertaking seems to issue not just a few but The Commission
had issued 687 Notices to Produce. As such it was so to say going on a fishing expedition rather than
as to be an impartial arbitrator and leaving it upon the Government to prove in each case why a
Notice to Produce should be legally justified to be issued.
Because criminal charges could result from any evidence that was given before the Royal
commission I view that the conduct of the Royal commission (Not conceding that it invoked
jurisdiction) as if each and every witness was facing a criminal trial.
For those relating to the State of Victoria I view the following should also kept in mind as such:
QUOTE Charter of Human Rights and Responsibilities Act 2006 Act No. 43/2006
24. Fair hearing
(1) A person charged with a criminal offence or a
party to a civil proceeding has the right to have
the charge or proceeding decided by a competent,
independent and impartial court or tribunal after a
fair and public hearing.
(2) Despite sub-section (1), a court or tribunal may
exclude members of media organisations or other
persons or the general public from all or part of a
hearing if permitted to do so by a law other than
this Charter.
Note: For example, section 19 of the Supreme Court
Act 1986 sets out the circumstances in which the
Supreme Court may close all or part of a proceeding
to the public. See also section 80AA of the County
Court Act 1958 and section 126 of the Magistrates'
Court Act 1989.
END QUOTE Charter of Human Rights and Responsibilities Act 2006 Act No. 43/2006
.
QUOTE Charter of Human Rights and Responsibilities Act 2006 Act No. 43/2006
25. Rights in criminal proceedings
(1) A person charged with a criminal offence has the
right to be presumed innocent until proved guilty
according to law.
(2) A person charged with a criminal offence is
entitled without discrimination to the following
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minimum guarantees
(a) to be informed promptly and in detail of the
nature and reason for the charge in a
language or, if necessary, a type of
communication that he or she speaks or
understands; and
(b) to have adequate time and facilities to
prepare his or her defence and to
communicate with a lawyer or advisor
chosen by him or her; and
(c) to be tried without unreasonable delay; and
(d) to be tried in person, and to defend himself
or herself personally or through legal
assistance chosen by him or her or, if
eligible, through legal aid provided by
Victoria Legal Aid under the Legal Aid
Act 1978; and
(e) to be told, if he or she does not have legal
assistance, about the right, if eligible, to legal
aid under the Legal Aid Act 1978; and
(f) to have legal aid provided if the interests of
justice require it, without any costs payable
by him or her if he or she meets the
eligibility criteria set out in the Legal Aid
Act 1978; and
(g) to examine, or have examined, witnesses
against him or her, unless otherwise provided
for by law; and
(h) to obtain the attendance and examination of
witnesses on his or her behalf under the same
conditions as witnesses for the prosecution;
and
(i) to have the free assistance of an interpreter if
he or she cannot understand or speak
English; and
(j) to have the free assistance of assistants and
specialised communication tools and
technology if he or she has communication
or speech difficulties that require such
assistance; and
(k) not to be compelled to testify against himself
or herself or to confess guilt.
(3) A child charged with a criminal offence has the
right to a procedure that takes account of his or
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her age and the desirability of promoting the
child's rehabilitation.
(4) Any person convicted of a criminal offence has
the right to have the conviction and any sentence
imposed in respect of it reviewed by a higher
court in accordance with law.
26. Right not to be tried or punished more than once
A person must not be tried or punished more than
once for an offence in respect of which he or she
has already been finally convicted or acquitted in
accordance with law.
27. Retrospective criminal laws
(1) A person must not be found guilty of a criminal
offence because of conduct that was not a criminal
offence when it was engaged in.
(2) A penalty must not be imposed on any person for
a criminal offence that is greater than the penalty
that applied to the offence when it was committed.
(3) If a penalty for an offence is reduced after a
person committed the offence but before the
person is sentenced for that offence, that person is
eligible for the reduced penalty.
(4) Nothing in this section affects the trial or
punishment of any person for any act or omission
which was a criminal offence under international
law at the time it was done or omitted to be done.
END QUOTE Charter of Human Rights and Responsibilities Act 2006 Act No. 43/2006
Because the evidence obtained by the Royal commission could form the basis of criminal
chargers I view that therefore each and every witness should have been given their legal rights
and have provided to them a right of legal representation without personal cost for this. Again, I
do not concede that the Royal commission is an appropriate forum for this, but merely comment
that to be and appear to be impartial it must prove to so.
.
We also have the issue that the 2-1-1901 in the (Victoria) Gazette published Letters Patent makes
clear that there had to be an impartial administration of justice.
As much as this applies to failure to have an impartial judiciary the same is with a Royal
commission which acts as a pseudo legal system. If we desired to hold a Spanish inquisition then
we should name it as such. If we desired to establish a Spanish Inquisition/Kangaroo Court
and/or Star Chamber Court then call it that, but to pretend it is a Royal commission when it
really appears to me to operate as a Spanish inquisition/Kangaroo Court/Star Chamber
Court but by naming it a Royal commission seek to circumvent the provisions of the Victorian
Act Interpretation Act 1980 I view this deceptive conduct never should be accepted.
QUOTE 20150713-G. H. Schorel-Hlavka O.W.B. to Royal Commission into Trade Union Governance and
Corruption-SUBMISSION-supplement-01
Once you allow the undermining of the judiciary then how can you expect others to respect the
judiciary that goes along with it?
.
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From The Age

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

Retirement speech of John K. Phillips, Supreme Court of Victoria
March 24, 2005
QUOTE
As we all know, the independence of the judiciary is a cornerstone of our constitutional system,
particularly the independence of this court, which must, from time to time, tell the political arms what
they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians,
but while I have been sitting here, I have seen what appears to me to be some erosion of this court's
independence.
END QUOTE
Clearly, the wording As we all know, the independence of the judiciary is a cornerstone of our
constitutional system indicates that this justice held there was a separation of powers within
state level.
From The Age
http://www.theage.com.au/news/Opinion/The-corporatising-of-our-courts/2005/03/23/1111525218521.html
QUOTE
The corporatising of our courts
Retirement speech of John K. Phillips, Supreme Court of Victoria
March 24, 2005
In his parting words from the Supreme Court bench, John D. Phillips warns of a dangerous erosion of the
court's independence.
For more than 14 years I have been sitting here, and it has been hard and unremitting, but exciting and
rewarding - emotionally, I hasten to add, before I am misunderstood. But for much of that time I have had to
bite my tongue.
I refer to policy matters rather than the debate within a particular case. For, during my time on the bench, and
especially as I grew more senior, I have watched with some concern a change emerge in the perception of this
court by others and some blurring of essential distinctions. I want to speak briefly of that now because I have
been unable to say much about it until now and when my resignation becomes effective, I fear that nobody
will listen.
As we all know, the independence of the judiciary is a cornerstone of our constitutional system,
particularly the independence of this court, which must, from time to time, tell the political arms what they
can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I
have been sitting here, I have seen what appears to me to be some erosion of this court's independence.
One of the most public examples recently was the refusal of the executive to accept the decision on
remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both
Parliament and the executive from the invidiousness of the decision-making process over judicial salaries and
so ensuring the independence of which I am speaking.
Less well known was the refusal of earlier governments to allow that the court's own chief executive officer
be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately
answerable to the Department of Justice, which is what happened.
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That appears now, if I may say so, to have been but part of a movement towards this court's becoming
absorbed into that department, and it is that to which I want to draw attention in particular; for such a
movement must be reversed if this court is to have, and to keep, its proper role under the constitution.
This court is not some part of the public service and it must never be seen as such. Established as a court of
plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this court is the third
arm of government, co-equal in concept with Parliament and the executive. Its role, inter alia, is to control
and to limit those other arms according to law and to that end to stand between those other arms and the
citizen. Hence the emphasis on the court's independence, especially from the executive.
Yet within the Department of Justice this court is now identified and dealt with - would you believe - as
"Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately
includes all three tiers of the court structure and VCAT.
This court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed
by departmental regulation, even if a part of those fees is redirected to the court by the department at its
discretion. The other day the department used a regulation to prescribe a procedure in this court, apparently in
disregard, if not in defiance, of the convention that such matters are for rules of court.
And perhaps most troubling of all: the judges' computers, which were provided by and through the
department, are but part of the departmental network. I do not say that departmental officers ordinarily avail
themselves of the access that that affords; one hopes the department has some controls in place. But access is
possible, and that seems to me altogether inappropriate when the state, in one form or another, is the major
litigant in this court, and sometimes on matters of critical import to the wider community.
Nobody is suggesting that the executive would ever seek to influence a judge's decision directly, otherwise
than by argument in open court, but what has been happening is more insidious. What is evolving is a
perception of the court as some sort of unit or functionary within the Department of Justice, a perception
which is inconsistent with this court's fundamental role and underlying independence.
Indeed I think it is fair to say that the Supreme Court, despite its dominant role within the court structure and
its constitutional role vis-a-vis the other arms of government, is now seen by some in authority as no different
from a tribunal, nowadays the Victorian Civil and Administrative Tribunal in particular. That is simply not
the case; yet the distinction between a court and a tribunal has been steadily undermined over the years, and it
must be restored if the proper constitutional position is not 2to be subverted.
The basic distinction is easy enough. A court exercises judicial power and must be, and be seen to be,
impartial and so must be independent of all else. Accordingly, its judges are appointed once and for all, and
ideally, without hope of additional gain or reward from anyone, including any other arm of government.
Hence Parliament's creation of the specialist remuneration tribunal. In contrast to a court, a tribunal, properly
so called, exercises administrative functions but not judicial power, and many things flow from that. Such a
tribunal may be an arm of the executive; its members may be appointed for fixed terms, with the possibility
of renewal at the discretion of the executive; and the need is not so great, to see that their remuneration is
fixed independently of the executive.
You will see, now, how far the distinction between court and tribunal has become blurred. While the
Victorian Civil and Administrative Tribunal is staffed by a few judges, it consists mainly of members
appointed for fixed terms, capable of renewal at the discretion of the executive - and hence my alarm when,
in addition to its administrative work, that tribunal was given some judicial power to exercise, for the latter is
altogether inconsistent with such a form of tenure.
There is talk now of acting judges for this court, and again, because this is a court which is exercising judicial
power, such would be anathema. It is one thing to tolerate the occasional acting appointment to this court for
a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the
discretion of the executive. Judges of a court properly so called must have security of tenure or, in a relatively
small community like this in Victoria, the whole system is put at risk. Our courts have been remarkably free
from any taint of bias or corruption; let it remain that way. A judge must be, and be seen to be, impartial and
so must eschew all other interests which might one day give rise to conflict or the appearance of bias.
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In my book, the judge must forgo the current cult of the individual: to adapt Edmund Burke, "individuals pass
like shadows, but the (institution) is fixed and stable". The judge is sometimes accused of remoteness but in
one sense that is no more than the reverse side of the commitment, the total commitment, which is demanded
of the appointee.
John D. Phillips is retiring as a judge of the Supreme Court of Victoria. This is part of his farewell address to
the court.
END QUOTE
Constitutionally there is a division between the Judiciary and the legislators and executives.
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.
QUOTE
follows :
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 ishereby required to
administer.
END QUOTE
The Office of the Governor (Victoria) as per 2-1-1901 PROCLAMATION, that was Gazetted
requires that the Governor appoints independent judges! As such, any notion that there being no
separation of powers in the states utter and sheer nonsense.
Where then unions find that their union members and others are denied their constitutional rights
and the Victorian Parliament for example without authority of the State electors purportedly
referred legislative (and so judicial) powers to the Commonwealth of Australia then one hardly
can wonder that unions will seek to use their powers in whatever way they deem fit and
appropriate to try to address issues. I may not approve of unions doing so but then the courts
themselves should have acted appropriately and this I view it fails far too often to do.
Workers (not just members) by this have been robbed of their constitutional rights of contracts as
was provided for by the legal principles embedded in the constitution, also applicable to the State
of Victoria.
.
I may add that French CJ, prior to

THE REFERRAL OF STATE POWERS COOPERATIVE FEDERALISM LIVES ?
(Pending Publication in the University of Western Australia Law Review)
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Justice R S French
Federal Court of Australia

PERTH WA
QUOTE
At the outset it may be observed that the power is not, in express terms, a power to refer matters. It is a
power conferred upon the parliament of the Commonwealth to make laws with respect to matters
referred. This has the important consequence that the laws so made are federal laws. The legislative power
conferred by section 51(xxxvii) is subject to the Constitution. So constitutional prohibitions will operate with
respect to it. Being federal laws, laws made pursuant to s 51(xxxvii) attract the operation of section 109 in
respect of inconsistent State laws.
END QUOTE
And
QUOTE
A question has been raised in academic commentary about whether a law adopted by a State parliament
pursuant to section 51(xxxvii) is also a Commonwealth law. 1 The power conferred by section 51(xxxvii) is
qualified so as to limit the operation of a law made under it to the referring States and to any States adopting
that law. With respect to the contrary view, it is difficult to see how the language of the
section could contemplate a law made pursuant to section 51(xxxvii) somehow changing its
character from Federal to State depending upon whether it applied to a referring or an adopting State.
Section 51(xxxvii) does not expressly confer power upon the States to refer matters or adopt laws
made under it. Nor does it specify the mechanism by which State parliaments shall refer matters to the
Parliament of the Commonwealth or adopt laws made under the referral power. The practice has been
to effect such referrals and adoptions by Acts of the State parliaments. The source of the power to refer is to
be found either in the State Constitutions or, by implication, from the Commonwealth Constitution. This
precise question has not fallen for determination.
END QUOTE
Let us see what the Framers of the Constitution stated:

Hansard 27-1-1898 Constitution Convention Debates
QUOTE
Sub-section (35).-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 the state or states by whose Parliament or
Parliaments the matters was referred, and to such other states as may afterwards adopt the law.
Mr. DEAKIN (Victoria).-I wish to call attention to this sub-section, which, like several others in this
portion of clause 52, represents a power first conferred upon the Federal Council, but which, as it appears to
me, if allowed to remain in its present restricted form-suitable enough as that may have been to the Federal
Council-is altogether unsuitable to the differing conditions of the Federal Parliament. In the original draft of
the Federal Council Bill the proposal was framed in clause 16 as follows:The Governors of any two or more of the colonies may, upon an address of the Legislatures of such
colonies, refer for the consideration and determination of the Council any questions relating to those colonies
or their relations with one another, and the Council shall thereupon have authority to consider and determine
by Act of Council the matter so referred to it.
The draftsman who advised the Imperial Government altered that including it in section 15 of the Imperial
Act constituting a Federal Council, where it forms the last part of subsection (i). The first part of the subsection gives the Federal Council legislative authority in respect to the several matters following, and the
clause before us, freely translated, follows:-
JA Thomson Adopting Commonwealth Laws: Section 51(xxxvii) of

the Australian Constitution (1993) 4 PLR 153.
1
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Any other matter of general Australasian interest with respect to which the Legislatures of the several
colonies can legislate within their own limits, and as to which it is deemed desirable that there should
be a law of general application.
Now, that appears to be ample for all the legislation which the Federal Council could have dealt with. That
body has no Executive, has no Budget, and undertakes no expenditure. That body is [start page 216] the mere
creature of the colonies, is dependent upon them, except within a very limited area, and, in fact, altogether for
any expenditure it may be necessary to incur. Now, during the discussion of the question of old-age pensions,
when I referred to the possibility of that matter being dealt with under this sub-section, I evoked a comment
from Sir John Downer, which called my attention in a particularly pointed way to a present weakness of the
sub-section in this respect. It may well be that some matters referred by the several state Parliaments to the
Federal Parliament, in order that common legislation may be passed for one or more colonies, may require
legislation involving some expenditure-expenditure which must be undertaken in order to give effect to that
legislation. It might be for the ordinary machinery administration-the payment of salaries of certain officersor it might be the power to levy certain fees and collect certain charges; or it might involve direct taxation;
but in all such cases it appears to me that the present sub-section may be inadequate. For instance, if reference
be made to sub-section (3) of this clause 52 it will be found that the Federal Parliament has only the power to
raise money by systems of taxation which shall be uniform throughout the Commonwealth. Consequently, if
any legislation referring to any less number of the colonies than the whole of the colonies, and which
involved any expenditure, was passed by the Federal Parliament, although those colonies were willing to vote
that expenditure, the Federal Parliament might have no power to raise that money. The only possible means
of the Federal Parliament obtaining that power would be if it were conferred in the provisions of the referring
statutes passed by the referring colonies, but unless those provisions exactly agreed-and agreement would be
extremely difficult to arrive at-the probability is that the law would be inharmonious and fail in its effect. I
would suggest to the leader of the Convention that he should consider whether there should not be such a
modification of sub-section (3), which provides for the raising of money by the Commonwealth, as would
allow of a reference by two or three colonies desiring to intrust the Federal Parliament with the task of
framing legislation for them, and enabling the Federal Parliament, if so called upon, to provide for the raising
of the necessary revenue in those colonies. That would be one means of meeting the difficulty. Another
means might be that when two or more colonies had determined, under sub-section (35), to refer to the
Commonwealth Parliament any matter which required the raising of money from their citizens, it should be
possible, for the Commonwealth, in regard to those particular matters, to provide for the necessary taxation to
be levied in those colonies by the central authority, instead of leaving them to the very difficult task of
coming to an independent agreement among themselves as to all the details of the method by which the
money should be provided.
Mr. GLYNN.-Strike the sub-section out.
Mr. SYMON.-That is the best solution of the difficulty.
Mr. DEAKIN.-That may be so.
Mr. GLYNN.-We may have a conflict of laws under the sub-section.
Mr. BARTON.-Such laws can only apply to the referring states themselves.
Mr. DEAKIN.-They would not be, in the strict sense of the term, federal laws.
Mr. BARTON.-No, they would only apply to the states which referred the matters to the Federal
Parliament.
Mr. DEAKIN.-Exactly; but those laws can be adopted by the other states. If two or three colonies
join in requesting the Federal Parliament to pass a statute on a particular matter applying only to
those two or three colonies, and that law has been enacted and proved to work well, the remaining
colonies of the group may adopt it, and finally [start page 217] you may have the Commonwealth in
this position, that every colony in the group has adopted, as far as it can adopt, that particular law,
which then ought to be a federal law. This contingency is perhaps provided for. That being so, it becomes
necessary for us to consider whether we should not also provide for the other contingency. If all the states of
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Page 10
the group except one, or if three of the larger colonies, or any three of the colonies, required a common
statute in regard to a particular subject, and the administration of that statute involved the raising of money,
the Federal Government ought to be able to provide for the levying of that money under the same law if so
requested by those concerned.
Sir GEORGE TURNER.-Will you briefly restate the point?
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 any-and if
any, what-power of amending or repealing the law by which it referred the question? I should be
inclined to think it had no such power, but the question has been raised, and should be settled. I should
say that, having appealed to Caesar, it must be bound by the judgment of Caesar, and that it would not
be possible for it afterwards to revoke its reference. It appears to me that this sub-section, which is
certainly one of the very valuable sub-sections of this clause, affording, as it does, means by which the
colonies may by common agreement bring about federal action, without amending the Constitution, needs to
be rendered more explicit. One point more especially which needs to be rendered clear is whether, when we
have this federal action, there shall not be a federal means of providing for the necessary revenue that may be
required or for imposing the necessary charges under such legislation.
Sir JOHN DOWNER.-Is that not implied?
Mr. DEAKIN.-If it is implied, would it not be best to make it explicit? The parentage of this clause, as I
have shown-originating as it does in a body with practically no financial power-casts a certain suspicion on
that reading of it, although, of course, the provision when embodied in this Act would have a different effect.
Still, why not make it clear whether we mean that, when the Federal Parliament has passed federal legislation
for some of the colonies, we shall allow that same legislation to deal with any necessary raising of revenue
from those colonies which may be required to give effect to the legislation?
Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of
the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention
could be obviated by some such provision as that which he suggested. But this matter has struck me also
from another point of view, and it seems to me that the provision affords an easy method of amending
the Federal Constitution, without referring such amendments to the people of the various states for
their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament,
and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be
repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference
once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it
becomes an amendment of the states' Constitution, incorporated in and engrafted on the Federal
Constitution without the consent of the people of the various states. On the other hand, if that be not so,
and the states can, after making such reference, repeal such reference, what is the result? You have a
constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead
to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the
provision is that it affords a free and easy method of amending the Federal Constitution without such
amendments being carried into effect in the manner provided by this Constitution.
Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal
Constitution.
Dr. QUICK.-In this way. At present clause 52, which we are now discussing, deals with the powers of the
Federal Parliament. It defines those powers in specific terms, in specific paragraphs. Very well. Then, if
under this sub-section power be given to the state Parliaments to refer other matters to the Federal Parliament,
to that extent the powers of the Federal Parliament are enlarged, and therefore there is an enlargement of the
Constitution. This enlarges the power of the Federal Parliament, and when a law is passed by the Federal
Parliament, it becomes binding on the citizens of the states the Parliaments of which have made reference;
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and if these laws are binding, I say they become federal laws, and those federal laws may be administered by
federal courts. Consequently, these referred powers become federal powers, and to that extent this becomes a
means of amending the Federal Constitution.
An HONORABLE MEMBER.-The state Parliaments may refer some subjects to the Federal Parliament
without the consent of the people.
Dr. QUICK.-True, the state Parliaments may refer some subjects to the Federal Parliament without the
consent of the people of the states-that is my point-and to that extent the powers become grafted on the
Federal Constitution in a manner directly different from the mode provided by this Constitution.
Mr. BARTON.-You can make amendments in your Constitution without referring to the people.
Dr. QUICK.-That is so, but there is a distinct provision here that there is to be no amendment of the
Constitution without first such amendment being passed by the Federal Parliament, and then submitted to the
people of the states, and there must be a majority of the people and a majority of the states before such
amendment can become law. In this case also, I have to use an expression which has been frequently
indulged in by Mr. Symon, that another mischievous result will follow from this power of reference.
Supposing a state Parliament is troubled and bothered with an agitation upon a certain question-say, that of
old-age pensions-and the state wants to get rid of a troublesome problem, it may simply, out of its inclination
to get rid of the difficulty, pass a Referring Bill shunting the question on to the Federal Parliament, and the
matter may there be hung up on account of other difficulties. Once a state has referred a matter to the
Federal Parliament of course it cannot deal with it itself.
Mr. BARTON.-And it cannot repeal the law referring the matter.
Dr. QUICK.-There seems to be a difference of opinion on that point. I myself agree with the Premier
of Victoria that there is power to repeal, and, consequently that the power of reference is not an
ultimate power; it may be repealed, and what is the result? It would lead to a most unsatisfactory state of
affairs. My view is that the sub-section should be struck out altogether.
Mr. SYMON (South Australia).-I think we are greatly indebted to Mr. Deakin [start page 219] and Dr.
Quick for raising this question. The only wonder is that it has not struck us at an earlier stage of our
proceedings how very mischievous-to repeat a word which has just been attributed to me-this sub-section
may possibly become. I do not know, whether a state, after referring a particular subject of legislation
to the Federal Parliament could not revoke the reference. My own personal view is that it could. It
could revoke the reference, but if the Federal Parliament has acted upon that reference, and legislated
upon it, then I think that legislation becomes federal legislation, and could not be revoked or interfered
with in any way by the State. If, as Mr. Deakin has said, they have appealed to Caesar, they must be bound
by Caesar's decree, Caesar in this case being the Federal Parliament. The law so passed by the Federal
Parliament would become federal law for all time until the Federal Parliament repealed it. Now, if the
state happened to change its mind on this particular matter, what would be the result? The reference to the
Federal Parliament may have been a mere political contrivance for the moment, as Dr. Quick has pointed out,
to get rid of some troublesome question. But if the state at some future period desired to legislate on its
own account, and to deal with the matter, which perhaps was a matter of purely local concern, it would
be faced with another portion of the Constitution, which says that no state law shall prevail if it is in
conflict with the federal law. A majority in Parliament, in order to get rid of a difficulty, might refer it to the
federal authority, and then we might find subsequently the people of the state hampered by the impossibility
of their retracing their steps, and carrying out legislation which they considered necessary and desirable. I
think, myself, that the better way would be to strike out this provision altogether. It is inconsistent, it seems to
me, with the foundation of our Federal Government. We declare here specific powers to be intrusted to the
Federal Parliament, and by those we should abide, except so far as the matter is controlled by sub-section
(36). It ought not to be competent for any state to get rid of a troublesome matter of legislation by saying"We will refer this to the Federal Parliament." It is obvious that, as has been pointed out by Dr. Quick, this
provision would extend powers to the Federal Parliament to a degree which would depend upon the hazard of
the moment. Now we are doing all we can, by debating the matter day after day, to secure that those powers
may be as precise as possible, and be brought within the limits of the necessities of the case. But here we are
giving to any state the power of sending on to the Federal Parliament, for debate and legislation, some matter
which it is purely for themselves to deal with, and I do not think we ought to put it in the power of states to
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relieve themselves from their own responsibilities in legislation or administration by any such easy
contrivance as this might turn out to be. I think the provision is really in by mistake. I was not aware until it
was pointed out by Mr. Deakin, that it had its origin in connexion with the Federal Council Act, though
I know it exists there. It might be applicable in that case, but it is not applicable to the Federal
Government we are now seeking to establish. I would also point out that sub-section (36) really gives a
very wide power in connexion with the exercise of legislative authority to the Federal Parliament, a power
which I fancy would, if it were desired to extend power to the Federal Parliament, meet the case. Sub-section
(36) enables the Federal Parliament to make laws with respect toThe exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the
states concerned, of any legislative powers 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.
[start page 220]
Mr. DEAKIN.-That is a different thing altogether.
Mr. SYMON.-I am not quite sure whether that is a desirable provision to leave in.
Mr. ISAACS.-It is much too large; I intended to call attention to it.
Mr. SYMON.-I think this matter was brought up before, and it is a much more serious matter than
honorable members might at the first glance be disposed to think. I believe it would enable states, in a matter
of purely local legislation, to refer the matter to the Federal Parliament for it to deal with. I have not referred
to the provisions of the Federal Council Act, but I think the concluding words of sub-section (36), if left in at
all, should certainly be very carefully considered. I do not know what they mean or how extensive they may
be.
Mr. DOBSON.-Could you give any illustration of a matter which would be referred to the Federal
Parliament by one of the colonies?
Mr. SYMON.-Not of what would be referred, but of what might be referred. I will choose one which it
might be very proper for us to refer to the Federal Parliament-the question of the disputed boundary between
South Australia and Victoria. The reference would probably be quite ineffective, as the Federal Parliament
would not deal with a subject of that kind at the invitation of one state.
Mr. BARTON.-If they did the settlement could only extend to that state.
Mr. SYMON.-But look at the invitation which this would give for the engendering of heat, passion, and
discussion in the Federal Parliament. Look at the difficulties that would be raised on the part of the Federal
Parliament in having a matter of that kind brought under its notice at all. There might be other matters of
social concern, and one was mentioned by Mr. Deakin, that of old-age pensions.
Mr. DOBSON.-That would hardly come under this provision. The financial part of it would operate against
its being referred.
Mr. SYMON.-As Mr. Deakin has put it, supposing such questions were referred, how is the Federal
Parliament to deal with them without some enabling powers with regard to finance?
Mr. OCONNOR.-If a state referred question of state finance it might be dealt with.
Mr. SYMON.-Does the honorable member say that that would be a desirable thing to do?
Mr. BARTON.-Is it not for the people of the state to determine whether it is desirable?
Mr. SYMON.-Is it desirable to shunt on to the Federal Parliament a power that we have not settled in the
Constitution? Would not this reduce the powers of the federal authority to a mere fluctuating quantity? My
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view is that we should strike this provision out altogether, and amend if necessary the succeeding subsection
(36). We could then do whatever may be desirable within proper limits.
Sir JOHN DOWNER (South Australia).-I cannot see any of the difficulties which Mr. Deakin, Mr.
Symon, and Dr. Quick anticipate in connexion with this sub-section. This, of course, is to be an inelastic
Constitution, which can only be altered after great thought and with much trouble. We define what are to be
the boundaries of the Constitution of the Commonwealth. We leave everything else to the states. It may
be that questions may afterwards arise which concern one, two, or three states, but which are not
sufficiently great to require a complete revision of the whole Constitution, with all the troublesome
proceedings that have to be taken to bring about a reform. It would much facilitate matters if these
questions could be referred to the Federal Parliament.
Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two colonies to agree
to anything.
[start page 221]
Sir JOHN DOWNER.-It would be easy compared with an alteration of the Constitution.
Mr. DEAKIN.-It would not be too easy.
Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the Constitution, but it
is a power that can only be exercised with great difficulty. We also have a power of quasi-arbitration,
which the Commonwealth Parliament can exercise in an easier way, although not without some difficulty, at
the request of one or more states. Now, is not that a good principle? I do not think many honorable members
will say it is not. It is suggested that we are allowing the states to throw upon the Federal Parliament a
responsibility they ought to take themselves. My answer is that every state wants to aggrandize itself, to
increase its authority, and it will only be in very extreme cases that the states will resort to this means of
getting rid of a difficulty. In an extreme case, is there any harm in having a comparatively easy method of
reference, not to troublesome negotiations, nor to the Imperial Parliament, but to the Federal Parliament.
Mr. BARTON.-It might be impossible to dispose of the matter excepting in that particular way.
Sir JOHN DOWNER.-Yes.
Mr. OCONNOR.-Take a case of dispute regarding a boundary.
Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance.
What could be more proper than that Victoria, if she became reasonable for once, should say-"Look here, we
know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and
will refer the matter at once to the Federal Parliament"? Who would blame her? Certainly not South
Australia. Even in connexion with the question of rivers some point might arise that might concern two or
three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference,
but it could not be a common matter of legislation in respect of every state. I will now take the points Mr.
Deakin makes. He doubts whether this power of legislation will carry with it a power of raising the necessary
money to give effect to the legislation.
Mr. ISAACS.-The states themselves will determine that.
Sir JOHN DOWNER.-Yes, the honorable member has given the answer.
Mr. DEAKIN.-Read it with sub-section (3).
Sir JOHN DOWNER.-I do not think that sub-section affects the matter in the slightest degree.
Mr. OCONNOR.-Sub-section (3) refers to the raising of money for the purposes of the Commonwealth
itself.
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Sir JOHN DOWNER.-Yes, and it can, in my opinion, have no relation to this question. When a matter is
referred the Parliament of the Commonwealth will have unlimited powers of legislation.
Mr. DEAKIN.-To the extent of the reference.
Sir JOHN DOWNER.-Exactly; but the parliament will be entitled to make a law about it which will
be as good as any other law. The only thing is that it will be limited in its area of application. Within the
limits of the reference, it could deal with finances or any other question. I can see no difficulty at all in
carrying out the sub-section in that respect, and I do not think that it wants any addition. We have practically
to consider this from the point of view of a question of policy. Is it worth while to leave to the states a
power of referring disputed questions that may concern one or more, but may not concern all? What
possible difficulty can there be? It may be said that this should be left to the people, but the Parliament can
decide. This Bill, before it can go home and can assume the form of an Imperial statute, will have to be
submitted to a referendum of the people of each colony. It is only after that has been done that it can be made
an Imperial [start page 222] statute, and why should we not give this power of reference to the states if it is a
power that would work well? For my own part, I do not think the sub-section requires even verbal
amendment. It will work quite well as it is so far as machinery is concerned. In regard to the principle, I think
it is a very advisable power to confer, and I hope the sub-section will be agreed to.
Mr. ISAACS (Victoria).-My honorable friend (Sir John Downer) has put in better language than I could
have employed many of the views I was going to present to the Convention. The object of the sub-section I
take to be this. The foregoing sub-sections deal with matters upon which authority is to be given to the
Federal Parliament to legislate with regard to all the colonies. They are admittedly matters of common
concern. Then it was thought that there might be other matters that might turn out to be matters of
common concern, but that are not yet regarded as such or have not yet arisen in any way. In the course
of the existence of the Commonwealth questions may arise that we do not foresee, and without any
amendment of the Constitution the states may if they choose refer them to the federal power. Or it may
be that any two states, unable each of them separately to legislate beyond their own boundaries, may ask that
this power to legislate may be given to them without the necessity to go to the federal authority. It is
perfectly plain that two separate states, even if they legislate in exactly the same terms, cannot carry
the effect of their laws beyond their own boundaries. There may be a difficulty, political or otherwise, as
to leaving it in the power of any one state to refer to the Federal Parliament matters of purely local concern. If
there be any objection on that ground, I suggest that it can be got rid of by saying that this power shall be
limited to matters which may be referred by two or more states to the Federal Parliament. That, I think, would
obviate any of the difficulties which Mr. Symon has foreshadowed, and would carry out what we really want.
No state, so far as I can imagine, requires to refer to the Federal Parliament the passing of any law that is to
affect itself alone. But if it agrees with another state that some law; not to be of universal application
throughout the Commonwealth, but to affect it and that other state alone, should be passed, power should
be given in some such clause as this to ask the Federal Parliament to enact that what both states desire shall
be of common application to them.
Mr. SYMON.-Could you put that in sub-section (36)?
Mr. ISAACS.-I do not wish to anticipate what I have to say upon sub-section (36). I think that that subsection requires amendment, and that it is too large for more reasons than one. But in my opinion the object
of sub-section (35) would be better obtained by striking out the power of one state to refer its own
purely local concerns to the Legislature of the Federation, and by limiting this power to cases where
two or more states desire to be bound by the federal authority.
Mr. BARTON.-Does the honorable and learned member say that sub-section (36) is too large? I would like
to mention that we left out some restricting words because we thought that the provision was restricted by the
whole scope of the clause.
Mr. ISAACS.-Well, I do not wish to confuse the two sub-sections. I think that Mr. Symon's objections will
be met if we use the words matters referred to the Commonwealth by the Parliaments of any two or more
states." A state Parliament may say-"We will not deal with this matter; we will refer it to the Federal
Parliament." Some honorable members may think that a shirking of responsibility. I do not attach any weight
to that contention, but I do not think anything is substantially gained by keeping in the provision.
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Mr. BARTON.-If a state Parliament wants to shirk its responsibility it can fall back upon the
referendum.
[start page 223]
Mr. ISAACS.-With regard to the other point that a state may repeal a law, I do not agree with that
argument. If a state refers a matter to the Federal Parliament, after the Federal Parliament has
exercised its power to deal with that matter the state ceases to be able to interfere in regard to it.
Moreover, when the Commonwealth has passed a law at the request of any Parliament or Parliaments,
and the Parliament of a third state adopts it, it adopts a Commonwealth law, and it requires the
consent of the Commonwealth to get rid of that law. In my opinion, there is no power of repeal with the
states, and I feel no doubt that I have read among the decisions of the United States, one which is to the
effect, although I cannot just now lay my hands upon it, that when a state has, with the consent of
Congress, made certain enactments the power of Congress is required to repeal those enactments.
Mr. REID.-Otherwise the provision would be perfectly idle. A state would refer a matter to the
Commonwealth, and, not being pleased with the precise manner in which that matter was dealt with, it would
immediately repeal the law.
Mr. ISAACS.-Yes; the state might just as well pass the law for itself.
Mr. OCONNOR.-A law once passed under this provision becomes a federal law.
Mr. ISAACS.-Yes, and nothing less than the federal authority can get rid of it.
Mr. BARTON (New South Wales). With regard to the particular sub-section which we have now in hand, I
have not been brought to see that any dangerous power is given in it, or that there is any reason for an
alteration. Let us take first the suggestion of the honorable and learned member (Mr. Deakin). The Federal
Parliament can only deal with such matters as a state or states refer to it. A state may refer to the Federal
Legislature a certain subject without referring, or expressly excepting from the reference, any financial
dealing with that subject. In such a case the Commonwealth could only legislate upon the subject so far as its
financial aspects were not concerned. If the whole subject were referred, not excepting finance, the
Commonwealth could legislate to the whole extent of the reference. I think that the words used in the subsection are ample for either case. The difference with regard to sub-section(3)is this: It is plain that that subsection refers only to the raising of money by any mode of taxation for general Commonwealth purposes.
Like all the rest of these sub-sections, with the exception of one or two which contains special provisions, it
concerns matters relating to the peace, order, and good government of the Commonwealth," and the word
Commonwealth" means prima facie the whole Commonwealth. In this sub-section, however, there are special
words which prevent the law applying to the whole Commonwealth, and these are the words quoted by the
honorable and learned member (Mr. Deakin):But so that the law shall extend only to the state or states by whose Parliament or Parliaments the matter was
referred, and to such other states as may afterwards adopt the law.
It seems to me that if there is any raising of money intended by the states to be delegated to the
Commonwealth-and they can only delegate their legislative authority to a certain extent, provided for by the
Constitution-that will be expressed in the reference, or it can be excluded from any reference. In the one case
or the other the Commonwealth can only proceed as far as the extent of the reference. Then there was the
objection of the honorable and learned member (Dr. Quick), that this provision affords an easy method
of amending the state Constitution without the use of the referendum. But at the present time the state
Constitutions do not provide for the use of the referendum. The government of the states is by a majority of
the representatives of the people, and it must [start page 224] be constitutionally assumed that when a
majority of the two Houses of Parliament make a law the people speak through that law. If the people choose
to speak through a law made in this way, there is no evasion of responsibility when an appeal was made to a
superior authority for the settlement of a difficulty incapable of settlement by the relations of two bodies at
issue. This is not a restriction but an enlargement of the legislative powers of the states, which I think is in the
spirit of democracy, and one that we should grant.
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Mr. HOLDER (South Australia).-I want to ask the leader of the Convention a question, his answer to
which will influence my vote on the subject before us. The sub-section upon which we are dealing and the
following sub-section are the only ones which provide for an extension of the powers of the Commonwealth.
I have been looking up the clauses in Chapter VIII., and I do not see that under them any extension of the
powers of the Commonwealth can be dealt with. I want to know whether I am right in supposing that under
these clauses no extension of the powers or scope of the Commonwealth would be possible, because I think
that under that chapter, if any alteration of the Constitution of the Commonwealth is desired, the states, to
obtain it, must first-have a law passed by the Commonwealth Parliament? Now, suppose it is proposed to
enlarge the power of the Commonwealth, by placing under its control the administration of Crown lands.
First of all, the Federal Parliament would have to pass a law upon this subject, and that law might be held to
be ultra vires. There would be no power to submit anything to the electors without Parliament first of all
passing a Bill, which, however, would be from the outset outside its power. I should like to know from the
leader of the Convention whether my view of this matter is correct?
Mr. BARTON (New South Wales).-What I understand my honorable friend (Mr. Holder) to ask is this:
Suppose it were desired that extra-legislative power than now exists should be granted to the Commonwealthas, for instance, to take under its control questions relating to Crown lands, and so on-whether an alteration in
the Constitution in that direction would be ultra vires? Now, the Bill provides, in Chapter VIII., that the
provisions of the Constitution shall not be altered except in the following manner;" which, to my mind,
means that if the processes specified are adopted the provisions can be altered in any way. I take the
provision to mean that authority is given to the Commonwealth under the processes here specified to alter this
Constitution in any manner, so far as it deals with the affairs of Federated Australia, and not with affairs
outside the dominion of Australia. Consequently, if it were proposed to add a legislative power of the kind
suggested by Mr. Holder, I take it that as Chapter VIII. provides first for the passage of the proposed
law by an absolute majority, and then for a referendum, the law would have no effect unless the
majorities of the several states agreed to it. So that not only the Commonwealth but the states would have
to agree to the passage of the law. Then any objection to that law becoming a new part of the Constitution of
the Commonwealth would vanish; because, I think, so much authority is conceded by Chapter VIII.
Mr. KINGSTON (South Australia).-I think that the difficulty is that Chapter VIII. does not give power for
an amendment of the Constitution, except by implication, but simply opposes limitations in the mode of the
exercise of the power of amendment. I would suggest to the leader of the Convention that we might add a
clause permitting the alteration of this Constitution, subject to the provisions of Chapter VIII. That would
include amongst the powers of the Parliament a power which is very necessary, and which it is no doubt
intended to give by the Bill, but which is not at present provided for as clearly as might be.
[start page 225]
Mr. GLYNN (South Australia).-In connexion with the point raised by Dr. Quick that this provision might
lead to an amendment of the Constitution otherwise than under clause 121, I would like to suggest that the
reference would be as to a specific point. It might be to settle a particular matter of legislation, but not a
general power. But we are still in this dilemma: That the state might, by referring the matter to the state
Parliament, deprive itself of the right of repeal, and thus take away the general power of legislation
from the state Parliament. As I understand, a state Parliament cannot at present abrogate its own
powers. It might pass a particular Act or it might repeal an Act, but here the Parliament of the state is
giving away some power without the consent of the people of the state. We are giving power to the state
Parliament to give away their sovereign powers without the consent of their people.
Mr. DEAKIN.-To commit political suicide.
Mr. GLYNN.-That is really what it amounts to. It certainly requires serious consideration.
The subsection was agreed to.
Sub-section (36)-
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The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the
states concerned, of any legislative powers 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.
Mr. BARTON (New South Wales.)-I might mention as to this sub-section that there is a difference
between its language and the language of the corresponding sub-section in the Bill of 1891. The difference is
this:-In the Bill of 1891, after the words legislative powers" there came the words with respect to the affairs
of the territory of the Commonwealth, or any part of it." It was considered unnecessary to retain those words,
because the whole scope of the legislative authority is that the legislation should be for the peace and good
government of the Commonwealth itself. Inasmuch as the Commonwealth cannot make any laws except
for the peace, order, or good government of the Commonwealth itself, we thought that it could not
make laws except with respect to the affairs of the territory of the Commonwealth or any part of it.
Mr. KINGSTON.-Will this give power to legislate with reference to a part only?
Mr. BARTON.-Only to the extent of the reference made. It must be a matter referred with the consent of
the Parliament, so that it would only apply to the extent of the reference made.
END QUOTE
.
Re; No. 92, 1986 Commonwealth Powers (Family LawChildren) Act 1986
It relates to a state Parliament and referendum, as such a referendum is needed to accept a
State to have accepted it reference of Power.
Also;
QUOTE Mr. BARTON (New South Wales).I take it that as Chapter VIII. provides first for the passage of the proposed law by an absolute
majority, and then for a referendum, the law would have no effect unless the majorities of the
several states agreed to it. So that not only the Commonwealth but the states would have to
agree to the passage of the law.
END QUOTE
.
Albeit, a State can adapt a Commonwealth law that is validly enacted within The
Commonwealth of Australia Constitution Act 1900 (UK), the reference of power however is
limited, where it is to create legislative powers that doesnt exist previously So that not only
the Commonwealth but the states would have to agree to the passage of the law.. As such,
it is not an issue for the Commonwealth to legislate on any matter referred to it unless by way of
referendum this was accepted. The Victorian purported reference of powers Commonwealth
Powers (Family Law- Children) Act 1993 No.92 of 1986 the Mutual Recognition (Victoria) Act
1993 were never approved by way of referendum and are NOT AT ALL part of the
Constitutional powers of the Commonwealth albeit so claimed in prints of The Commonwealth
of Australia ConstitutionAct 1900 (UK).
On 7 and subsequently on 21 October 1986 the Legislative Council passed the Commonwealth
Powers (Family Law - Children) Act 1986 No 92 which was Gazetted on 16 December 1986
and came into force on 28 October 1987. Version 010 being:
QUOTE
s. 4
The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix
a day as the day on which the reference under this Act shall terminate.
END QUOTE
.
Hansard 27-1-1898 Constitution Convention Debates (Official Record of the Debates of the National
Australasian Convention)
QUOTE Mr. DEAKIN.Another difficulty of the sub-section is the question whether, even when a state has referred a matter
to the federal authority, and federal legislation takes place on it, it has any-and if any, what-power of
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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
Version No. 010
Commonwealth Powers (Family Law--Children) Act 1986
Act No. 92/1986
Version incorporating amendments as at 14 July 1997
This Version incorporates amendments made to the Commonwealth Powers (Family Law-Children) Act 1986 by Acts and subordinate instruments.
END QUOTE
The Victorian Parliament has PURPORTEDLY amended this legislation of the Commonwealth
Powers (Family Law - Children) Act 1986 No 92 totally unaware what the true reference of
legislated powers possibly could mean! It purports to refer legislative powers and withdraw it as
it please! It was however never accepted by any referendum on the first place!
GLEESON J as a judge in the corium in of the Full Court of the HIGH COURT OF
AUSTRALIA in HCA 27 of 1999 under point 31 had this to say:
..I held that State Parliaments had no power to vest State Judicial power in federal courts created
by the Parliament of the commonwealth and that the parliament of the Commonwealth had no
power to consent to State Parliaments vesting State Judicial power in the federal courts.
I view, that likewise the States have no constitutional powers to vest the Commonwealth with
legislative powers or the Commonwealth to consent to accept legislative powers within Section
51(xxxvii) of the Commonwealth constitution unless the State constitution provides for such
reference of legislative powers and also such reference of legislative powers has been approved
in accordance of the provisions of Section 128 of the Commonwealth Constitution by way of
referendum, as well as that both the States (and so those voting in the referendum) and the
Commonwealth have been aware that this reference of legislative powers is one of a permanent
nature, after which the relevant State referring the legislative powers for ever has lost future
legislative powers either to rescind, amend or otherwise alter any legislation the Commonwealth
may provide upon a successful referendum.
The Victorian Constitution under s16 provides that The Parliament shall have power to make
laws in and for Victoria in all cases whatsoever. As such, this clearly exclude any reference
of legislative powers from the State of Victoria to the Commonwealth! After all, to refer
legislative powers means the State no longer has it, and that breaches the provisions of s16!
That albeit the Victorian Constitution refers to the Australian Citizenship Act 1948, no specific
legislation appears to be in place as to formally adopt this Commonwealth legislation.
Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
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
.
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That on 7 and subsequently on 21 October 1986 the Legislative Council passed the
Commonwealth Powers (Family Law - Children) Act 1986 No 92 which was Gazetted on 16
December 1986 and came into force on 28 October 1987. Version 010 being:
QUOTE
Commonwealth Powers (Family Law---Children) Act 1986
Version No. 010
Act No. 92/1986
TABLE OF PROVISIONS
Section Page
THIS PAGE IS TO BE MASKED
Version No. 010
Act No. 92/1986
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to refer to the Parliament of the Commonwealth certain powers relating to
Family Law.
2. Commencement
This Act comes into operation on a day to be proclaimed.
3. Reference of certain matters relating to children
(1) The following matters, to the extent to which they are not otherwise included in the legislative
powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth
for a period commencing on the day on which this Act comes into operation and ending on the day
fixed, pursuant to section 4, as the day on which the reference under this section will terminate, but no
longer namely-(a) the maintenance of children and the payment of expenses in relation to children or child bearing;
(b) the custody and guardianship of, and access to, children.
(2) The matters referred by sub-section (1) do not include the matter of the taking, or the making
of provision for or in relation to authorizing the taking, of action that would prevent or interfere
with-(a) a Minister of the Crown, an officer of the State, an officer of an adoption agency approved under a
law of the State, or any other person or body having or acquiring the custody, guardianship, care or
control of children under a provision of an Act specified in the Schedule; or
(b) the payment of maintenance in respect of children who are in such custody, guardianship, care or
control; or
(c) the jurisdiction of the Supreme Court to make orders in respect of children who are in such
custody, guardianship, care or control; or
(d) the jurisdiction of a court of the State, under a provision of an Act specified in the Schedule, to
make orders, or take any other action, in respect of-s. 3
(i) the custody, guardianship, care or control of children; or
(ii) access to children or the supervision of children.
(3) In the preceding provisions of this section-(a) the references to children shall be construed as references to persons under the age of 18 years; and
(b) the references to the maintenance of, and the payment of expenses in relation to, children shall be
construed as including references to the maintenance of, and the payment of expenses in relation to,
persons who have attained that age and have special needs in respect of maintenance or expenses by
reason of being engaged in a course of education or training or by reason of a physical or mental
handicap; and
(c) the references to an Act specified in the Schedule shall be read as references to that Act as amended
and in force from time to time, and as including a reference to any Act or Acts replacing that Act and
as amended and in force from time to time.
4. Termination of reference
s. 4
The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix
a day as the day on which the reference under this Act shall terminate.
__________________
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Sch.
amended by Nos 16/1987
s. 4(3)(Sch. 1 item 6), 56/1989
s. 286(Sch. 2 item 3).
SCHEDULE
Sch.
Section 3
Children and Young Persons Act 1989
Community Services Act 1970
NOTES
1. General Information
Notes
Minister's second reading speech-Legislative Assembly: 17 September 1986
Legislative Council: 7 October 1986
The long title for the Bill for this Act was "A Bill to refer to the Parliament of the Commonwealth
certain matters relating to Family Law.".
The Commonwealth Powers (Family Law--Children) Act 1986 was assented to on 16 December
1986 and came into operation on 28 October 1987: Government Gazette 28 October 1987 p. 2925.
2. Table of Amendments
Notes
This Version incorporates amendments made to the Commonwealth Powers (Family Law-Children) Act 1986 by Acts and subordinate instruments.
------------------------------------------------------------Community Services Act 1987, No. 16/1987
Assent Date: 12.5.87 Commencement Date: S. 4(3)(Sch. 1 item 6) on 22.2.89: Government Gazette
22.2.89 p. 386 Current State: This information relates only to the provision/s amending the
Commonwealth Powers (Family Law--Children) Act 1986 Children and Young Persons Act
1989, No. 56/1989
Assent Date: 14.6.89 Commencement Date: S. 286 on 31.1.91: Special Gazette (No. 9) 31.1.91 p. 2;
Sch. 2 item 3 on 30.9.92: Government Gazette 26.8.92 p. 2470 Current State: This information relates
only to the provision/s amending the Commonwealth Powers (Family Law--Children) Act 1986 -----------------------------------------------------------3. Explanatory Details
Notes
No entries at date of publication.
END QUOTE
.
The State of Victoria (as did other States) legislated for the Commonwealth Powers (Family
Law---Children) Act 1986. This purportedly giving legislative powers within subsection
51(xxxvii) of the Commonwealth of Australia Constitution to the Commonwealth. Not only
could subsection 51(xxxvii) not be used for this, but also unless there is a referendum to approve
of such reference of legislative powers it would remain ULTRA VIRES. Further, any matter
validly referred to within the provisions of subsection (xxxvii) would become federal law, and
be beyond State legislation from then on, once the Commonwealth has legislated upon it. The
Commonwealth Powers (Family Law---Children) Act 1986 purports to be valid until the
Governor is to make a proclamation otherwise, etc. Clearly, this underlines that the State of
Victoria never had any understanding as to what subsection 51(xxxvii) stood for. Once a
reference of power has been referred to the Commonwealth in a valid manner, then once the
Commonwealth legislate upon this, the State lost any legislative powers upon this matter.
Further, the Commonwealth could not act upon any validly referred matters (within subsection
51(xxxvii) ) where this required expenditure, as the Commonwealth is not permitted to fund such
matters out of Consolidated Revenue. As such, any reference of powers that were to incur cost to
be dealt with, would have to include an additional provisions for the Commonwealth to levy a
special charge against the State for funding this. Again the Framers of the Constitution made
clear that subsection 51(iii) as to taxation) could not be used for this. Subsection 51(iii) is to fund
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Commonwealth matters for the whole of the Commonwealth, and not for particular State related
matters that were referred to by a particular State.
QUOTE
4. Termination of reference s. 4 The Governor in Council may, at any time, by proclamation published in the
Government Gazette, fix a day as the day on which the reference under this Act shall terminate.
END QUOTE
The Framers of the Constitution made clear, that once the Commonwealth had acted upon any
legislation, then the state had no further legislative powers to deal with this. Hence, any
purported termination of reference could not apply.
In fact, the Framers of the Constitution referred that the purpose of subsection 51(xxxvii) was
one to enable the Commonwealth to be the arbitrator in matters in dispute between the States,
albeit not involving all States. Hence, the Commonwealth Powers (Family Law---Children) Act
1986 is not such a matter that is in dispute between 2 or more but not all States.
We then have the concoction of the Federal Courts (State Jurisdiction) Act 1999, which
purports to legally validate unconstitutional federal court Orders (Being it from the Family Court
of Australia and/or Federal Court of Australia.) Again, we have a clear misconception about the
function and positions of those Courts.
Likewise, the Commonwealth Powers (Industrial Relations) Act 1996 was beyond legislative
powers for the State of Victoria to refer to the Commonwealth of Australia as it was not a
matter in dispute between two or more but not all States.
As much as all the colonies had to have a colonial referendum to allow for the transfer of
colonial powers to the Commonwealth of Australia then likewise any reference of legislative
powers by a State that effectually reduces the State constitutional powers is an amendment
to the State constitution then it requires a State referendum to approve of this.
.
Remember?
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
END QUOTE 20150713-G. H. Schorel-Hlavka O.W.B. to Royal Commission into Trade Union Governance and
Corruption-SUBMISSION-supplement-01
Therefore, the question is and remains if Industrial Relations was validly referred to the
Commonwealth?
Also, if the State of Victoria can authorise John Dyson Haydon RC also to act as a Royal
commissioner for the State of Victoria, and so other states likewise? In my view for the above
stated and previous submissions I view that the Victorian Governor muddled the water by
appointing a person as a Royal commissioner who was duty bound to comply by his Letters
Patent to the Commonwealth.
As such there could be a conflict of legislative provisions regarding persons giving evidence, etc.
.One may ask are the States paying the Royal commission for this inquiry or is it merely
providing so to say lip service as to provide Letters Patent which cannot be given to give
authority to any person outside the boundaries of the state, but pretend nevertheless to do so?
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Clearly these and other issues should have been canvassed in a judicial hearing once I provided
the OB JECTION TO JURISDICTION on 15 February 2014 and subsequently the same on 57-2014.
.
Now to the email issue:

QUOTE JDH POINT 50 ETC, AT PAGE 18 and further
OVERVIEW OF THE FACTS
50.
As will be seen, the applicants arguments centred largely on emails passing between me 50.and the
coordinator of the Sir Garfield Barwick Address for 2015 in the period April 2014 to August 2015. In the
hearing those emails formed Exhibits ACTU MFI-2 and MFI-6 (the electronic form of which was ACTU
MFI-8).
51.
It will be necessary to examine the content of some of those emails in detail later. But it
is convenient to set out the basic chronology of those emails and other events here in order to appreciate the
background of the arguments which the applicants advance. At the outset, it should be noted that there is
evidence that I have no computer and that all email correspondence is sent and received by my personal
assistant (ACTU MFI-6). Indeed it is notorious among the legal profession that I am incapable of sending or
receiving emails. The consequence is that I read emails only after they have been printed out for me.
52.
Several years ago I had one or more informal discussions with the coordinator of the Sir
Garfield Barwick Address concerning the possibility of delivering the address at some future time. (See
ACTU MFI-7 Tab 11.) On 10 April 2014, a further approach was made orally to me in the Banco Court after
I had delivered the Acton Lecture. I indicated to the coordinator that I would be amenable to delivering the
Sixth Annual Sir Garfield Barwick Address in August 2015 if the Commission had completed its work.
53.
On 10 April 2014, the coordinator sent me an email providing various details about the 53.Sixth Annual Sir
Garfield Barwick Address.
54.
On 11 April 2014, I caused an email to be sent to the coordinator stating: Yes, I can 54.deliver the Barwick
address in August 2015. The coordinator then sent an email of thanks.
55.
On 2 March 2015, I received an email from the coordinator. It stated: I am proposing 55.that save the date
emails for the 2015 Barwick address, which you have kindly accepted for, should go out in March.
56.
On 25 March 2015, I caused my personal assistant to send the coordinator an email 56.indicating a topic and
consenting to a range of dates. On the same day the coordinator sent me an email stating, inter alia, If you
have no preference on dates Ill try to aim for a non-Parliamentary sitting week to give the politician-lawyers
less excuse not to turn up! On 4 April 2015, the co-ordinator sent another email which stated, inter alia: We
have gone for Wednesday 26 August 2015 subject to venue availability which is a non-sitting week for
Federal and NSW Parliaments .
57.
On 7 April 2015, I caused my personal assistant to send an email to the coordinator that I 57.had entered the
event into my diary for 26 August 2015.
58.
On 12 June 2015, the coordinator sent me an email. It will be necessary later to consider 58.this email and its
attachments in detail. For present purposes it is enough to note that the attachments comprised an invitation
(one page), an RSVP form (one page) and a form entitled State Donation Compliance (one page). I did not
read the attachments.
59.
The next two communications from the coordinator to me took place within two minutes
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Page 23
on 12 August 2015. The second email, sent at 11.14am, inquired whether anyone would be accompanying me
to the dinner. The first, sent at 11.12am, began by stating that it enclosed the invitation for my reference. It
was in fact enclosed, as is discussed below. This was the same invitation as had already been attached to the
12 June 2015 email.
60.
On the morning of 13 August 2015, at approximately 9.00am, I had a short conversation 60.with Senior
Counsel Assisting, Mr Stoljar SC. Unbeknownst to me until 27 August 2015, Mr Stoljar had made a note in
his diary of the conversation. The note reads:
Following conf discussion JDH re Garfield Barwick address and my email from Chris
Winslow saying it was a Liberal Party fundraiser. However JDH showed me an email from
Greg Burton to him, also yesterday 12/8, saying it is not a fundraiser. JDH: Burton is closer to
the action than Winslow he ought to know. So OK to go ahead if JDH writes clarifying +
response OK.
61.
The email from Mr Winslow, an officer of the NSW Bar Association, was an email sent
on 12 August 2015 at 7.31pm to Mr Stoljars chambers email address with subject Dyson stating: Is
Dyson Heydon aware that the Garfield Barwick Address, which he is due to deliver, is a Liberal Party
fundraiser? Mr Stoljar had replied at 8.05pm saying: Ill raise that with him. Thanks. In our conversation
on the morning of 13 August 2015, Mr Stoljar did not show me either Mr Winslows emails or the reply.
62.
Following the discussion, I caused my personal assistant to send an email replying to the 62.two emails of 12
August. The reply, which was sent at 9.23am, concluded: If there is any possibility that the event could be
described as a Liberal Party event he will be unable to give the address, at least whilst he is in the position of
Royal Commissioner. (emphasis in original)
On 13 August 2015, the Commission publicly released an email chain containing the 63.coordinators email of
12 August at 11.12am (without attachments) and the reply of 13 August at 9.23am. The events after that have
already been recounted.
END QUOTE
63.
My wife had to learn how to use a laptop onto the internet at age 78. She is still (years later)
struggling, and never use a mouse, but she uses the Internet and emails. She even venture out on
the Internet to do her own kind of research about health issues, etc. when in doubt she ask my
assistance or I hear her in her own way cursing and well I know something is not right. Still in
the overall she is slowly learning more and more. She still has not learned how to download
attachments but had a good lesson never to go along with a telephone caller to allow remote
access! Boy that s cared the living daylights out of her. As such, I can understand to some extend
that JDH may have certain computer problems, this however cannot exonerate him for not
knowing or reading attachments. After all numerous persons made submissions via email and
regardless who assist John Dyson Haydon as Royal commissioner in the end he is and must be
held accountable. Too often we get the nonsense from Ministers of the Crown that they didnt
know about something because their staffers were dealing with it, this even so their specifically
appointment were to be responsible Ministers
QUOTE
52. Several years ago I had one or more informal discussions with the coordinator of the Sir
Garfield Barwick Address concerning the possibility of delivering the address at some future
time. (See ACTU MFI-7 Tab 11.) On 10 April 2014, a further approach was made orally to
me in the Banco Court after I had delivered the Acton Lecture. I indicated to the coordinator
that I would be amenable to delivering the Sixth Annual Sir Garfield Barwick Address in
August 2015 if the Commission had completed its work.
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END QUOTE
Apart of the email exchange it is clear that you on 10 April 2014 indicated that that you could do
the address in 2015 if the Commission had completed its work. . As such it should be clear
that you knew or reasonable were aware that you couldnt give an address if the commission was
still in progress. Hence, I view that on that basis nevertheless accepting to do the speech in
august 2015 should have been clear to you that this might/would be creating a conflict of interest.
After all why otherwise stated if the Commission had completed its work.?
Also vague and aloof is the statements to refer to with the coordinator and a further
approach was made and I indicated to the coordinator.
It may or may not have been the same coordinator. The identity of the coordinator may reveal if
it was a member of a political party or not. Also who made the further approach as it may not
have been the coordinator but some other person(s). As such, the issue becomes more and more
mysterious. Why conceal the identities of one or more persons so to say if it was all above
board?
QUOTE
58. On 12 June 2015, the coordinator sent me an email. It will be necessary later to consider 58.this
email and its attachments in detail. For present purposes it is enough to note that the
attachments comprised an invitation (one page), an RSVP form (one page) and a form entitled
State Donation Compliance (one page). I did not read the attachments.
END QUOTE
In my view it is immaterial of you did or didnt read the attachment, because ignorance is no
excused. Despite of having certain computer problems, it is ultimately for you to ensure that staff
you engage to assist you are fully aware of what is required. If therefore staff omit or otherwise
failed to inform you then you cannot pass the blame for this. But in any event the following
document indicates that Mr Tony Nutt, director of the Liberal party clearly was involved. And
the statement uses Liberal Party, etc. As such I view it would be utter and sheer nonsense to
accept that even during the oral conversation on 10 April 2014 and other occasion you were not
aware this was a Liberal party event.
https://s3.amazonaws.com/s3.documentcloud.org/documents/2272384/media-statementnsw-liberal-party.pdf
QUOTE
13 August 2015
Media Statement
Tony Nutt State Director
Sir Garfield Barwick Address
Several years ago the coordinator of the Sir Garfield Barwick Address, which is sponsored by
members of the legal profession, who also happen to be Party members (via the relevant
professional branch), approached the Hon. Dyson Heydon AC QC to deliver this years memorial
lecture.
The lecture, named in memory of a great Australian lawyer, provides the venue for a distinguished
speaker to address a topic of academic interest to the legal profession.
Previous lecturers for instance have discussed Barwicks technique as a barrister and aspects of his
judicial reasoning, as well as his wider contribution to Australian law.
The invitation was widely distributed within the legal profession and previous lectures have been
published.
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Earlier this morning I was advised that the Hon. Dyson Heydon would not be able to attend and
deliver the Address.
This decision followed contact by the coordinator with the Hon. Dyson Heydon yesterday.
The lecture was to have taken place at a Sydney city hotel and the $80 per head was to have
covered the cost of a three course meal and associated expenses in organising the event. The usual
attendance is around 80-90 people.
In order to meet the obligations of electoral disclosure laws the invitation included the usual
information.
The suggestion that this memorial lecture was a significant fundraising event is ridiculous.
MEDIA: Alicia McCumstie 0407 416 537
END QUOTE
https://s3.amazonaws.com/s3.documentcloud.org/documents/2272384/media-statementnsw-liberal-party.pdf
QUOTE
END QUOTE
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The following may not be correct in details but to some extend a mock up as to wearing a Liberal
Party head at the Royal commission hearing, but nevertheless some of the content of the quoted
statements ought in my view be of concern for any judge to get involved in somehow honouring Sir
Garfield Barwick if what is alleged is true.
http://tasmaniantimes.com/index.php?/weblog/article/dyson-heydon-...-and-the-sir-garfield-barwick-address/
QUOTE
Dyson Heydon ... and the Sir Garfield Barwick Address Evan Whitton, @EvanWhitton1
http://netk.net.au/whittonhome.asp Pic* First pub: Aug 1720.08.15 4:30 am20 comments *Pic: The Shovel:
Eyebrows Raised As Dyson Heydon Accidently Wears Liberal Party Cap To Royal Commission Hearing
Royal Commissioner Dyson Heydon has apologised for wearing a Liberal Party cap to the Royal
Commission into Union corruption this morning, saying he didnt realise the cap had the Liberal Party logo
emblazoned on its front. I overlooked the connection between the logo on the cap and the Liberal Party of
Australia, Mr Heydon said in a statement today. Liberal Party MPs, including Attorney General George
Brandis, have come out in support of Mr Heydon, saying there is no suggestion of bias. It is just a hat. He
took it off as soon as he was made aware of it; that should be the end of it, Mr Brandis said Former Speaker
Bronwyn Bishop said it was a trivial matter and nothing more than a witch-hunt. I would often arrive at the
Speakers chair and accidently start handing out Liberal Party brochures. Weve all done it! Move on. While
there is mounting pressure on the Commissioner to resign, Prime Minister Tony Abbott has advised Mr
Heydon to let the shitstorm grow for another two or three weeks before finally standing down. Sir Garfield
Barwick Evan Whitton notes: Sydney notoriously has no memory. Sydney lawyers in the Liberal Party and
former High Court judge Dyson Heydon presumably have no memory of Garfield Barwicks crimes. If they
did, the lawyers would surely not put on an annual Sir Garfield Barwick Address, and Heydon would surely
not consent to give the address. At a minimum, Barwick (Chief Justice 1964-81) should have been dismissed
for misconduct. But organised crime is systematic criminal activity for money or power. Readers can decide
whether or not Barwick was an organised criminal. Three pointers: He concealed his interest in companies
in cases before him. Maximum penalty: two years in prison. Tax evasion (Mundroola) can result in eight
years in prison. In a series of tax cases, his lies, e.g. a profit of $2782 is a loss of $186,046 (Curran, 1974),
effectively stole millions from pay-as-you-earn taxpayers.
The judgment of the Lionel Murphy Case is the worst miscarriage of justice since the great Danton
was bodily placed under a guillotine by a conspiracy of his colleagues. It is impossible to have a fair
trial after two years of strongly anti-Murphy stories by the Charlotte Cordays* of the Sydney press.
This, to us men in the street, has been an obvious political setup from the start - with racist overtones
in the sense of a pack of WASPS suddenly discovering an unashamed, unconquered Celt approaching
a powerful social position - the Chief Justiceship of Australia. - Lawrence Beck, sculptor, of Leura.
[* There is a minor problem here. Mlle Corday stabbed M Jean-Paul Marat on the basis that he was too
bloodthirsty: M Georges Danton went to the guillotine on the ground that he was not bloodthirsty enough. It
is thus unclear whether Mr Beck wishes us to equate Murphy with Danton or Marat, or both. However, we
catch his general drift.]
the media dropped the (Mundroola) matter the moment (Barwick) declared himself not guilty.
Why? Because the Chief justice, like the Queen, can do no wrong, though a minor justice may? Or
because Barwick and Murphy belonged, in their salad days, to different political parties? - Professor
Russell Ward, Emeritus Professor of History, University of New England.
The proposition thus is: Chief Justice Sir Garfield Barwick, hero of the Right, was saved by the Right and the
press; Justice Lionel Murphy, hero of the Left, was brought down by the same alliance. The Mundroola
affair, and the role of the press in it, thus requires some examination. Both Barwick and Murphy were failed
politicians who found soft landings on the High Court; they owe their heroic status to their periods on the
Bench. Malcolm Turnbull, in The Bulletin in June 1980, judged three of Barwicks actions to represent a
misuse of power: Sitting alone in 1974 on a constitutional case involving Senator James Webster, a member
of his former coalition (wrong in law also wrong in principle;) Giving advice to the Governor-General in
1975 (unforgivable;) Inviting, in 1976, when the membership of the court changed, the re-litigation of a
matter (the constitutionality of Senators from the territories) on which he had been on the short end of a 4-3
decision the year before (Gibbs and Stephen ... included some dark words about the motives for the relitigation.) Elements of the Right may be assumed to have derived a deal of satisfaction from such misuse, as
well as from the agility of Barwicks mind on the matter of tax avoidance. In 1980 Senator John Button
quoted him as saying to a barrister who had used the term: Look, you cannot call this tax avoidance. If
there is not tax to be paid, it has not been avoided, has it? Barwick has said he started Mundroola Pty Ltd in
1946 for the benefit of his two children. He stated that it was a family company. The most substantial
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Page 27
shareholder, with 4000 of the 4800 deferred shares, until 1974, was his close friend and business associate,
Mr Leslie J. Thompson, a director of Ampol, Brambles, and CSR Chemicals. Barwick had no shares, but was
managing and governing director. He said his wife had a small shareholding. In fact, she held 850 of the
852 ordinary shares. From 1964 to 1974, Mundroola bought land for $162 161, and sold land for $595 740.
At June 30, 1973 it held shares which cost $167 548 and which had a market value of $357 880. While
Barwick was Chief Justice, cases involving Ampol, Brambles, and CSR, in which Mundroola held shares,
came before him. He did not declare an interest in those cases. A number of questions remain unanswered
about the Mundroola affair. Among them, raised by Senator Gareth Evans in the Senate on 29 April, 1980,
were: 1. Was Barwick one of the unnamed directors to whom Mundroola made loans at low, or possibly, nonexistent, rates of interest? 2. Was Barwick one of the unnamed directors to whom directors fees were
regularly paid? 3. Did Barwick receive the use of his Careel Bay house, which was owned by Mundroola,
rent-free, or at an abnormally low rent? Section 34 (b) of the Crimes Act 1914 provides that any person
who being a judge or magistrate, wilfully and perversely exercises Federal jurisdiction in any matter in
which he has a personal interest, shall be guilty of an offence. The penalty for a breach is imprisonment for
two years. If, therefore, the answers to any of the above questions is yes, Barwick might be judged to have a
pecuniary interest in Mundroola, and might thus have been at risk of being charged under the Crimes Act.
The Barwick (or Mundroola) affair ran for barely more than three weeks in April and May 1980. The
sequence of events is significant. Late in 1979, the Labor Party got a tip about Mundroola, and began an
inquiry. The Barwick connection, however, was first publicly revealed on 18 April, 1980. It was then
reported by Paul Malone in The Australian Financial Review, that the NSW Corporate Affairs Commission
had approved plans to strike Mundroola off the register for not lodging annual returns since 1973. Mundroola
filed the missing returns six days later. These stated that Barwick had resigned as a director on 31 December,
1974. On Saturday 26 April, The Age ran an article which stated that Barwick, without declaring an interest,
had sat in judgment on cases involving corporations in which Mundroola had shares. Senator Gareth Evans
gave notice in the Senate on Monday, 28 April that he would next day move that a joint parliamentary
committee be appointed to inquire into the Mundroola matter. The then Prime Minister, Malcolm Fraser, got
in first. At 4.15 pm on the Tuesday, he produced a letter (dated the previous day) from Barwick absolving
himself of all blame. Barwicks letter said he had no proprietary interest, which was not an issue, in
Mundroola. Barwick did not address himself to the question of possible pecuniary interest. He said he could
not believe that any fair-minded person would have entertained any doubts about his impartiality in appeal
cases. Fraser said no inquiry was needed, or would be granted. He said: The decision as to whether a conflict
of interest situation arises is one for the individual to make. Bob Ellicott, Barwicks cousin, and then thought
to be a front-runner to succeed him, produced a brief (294 words) opinion, by Solicitor-General Morrie (later
Sir Maurice) Byers. Parts of this opinion supported Barwicks position, but the opinion appears to have some
internal contradictions. Evans began detailing his evidence, the product of some months of research, in the
Senate at 5.11 pm, four minutes before the Barwick proceedings concluded in the House of Representatives.
The Senate debate did not end until just before 10.30 pm. Two things followed from this timetable: The
Barwick-Fraser-Byers assertions could not, and did not, respond to the questions, noted above, or other
matters raised in Evans speech. Because of media deadlines, the Barwick-Fraser-Byers assertions would
necessarily command the bulk of the media coverage that night and next morning. Evans speech was grave
and restrained. At the end, he said: I make no suggestion that I have mounted other than a prima facie case ...
only (a parliamentary) inquiry would give full opportunity to the Chief Justice to put on record ... all the
matters about which this Parliament and the Australian community must be satisfied before this matter can
ultimately be put to rest. Senator Don Chipp, who then commanded a party of two Australian Democrats in
the Senate, said that the Chief Justice has been indiscreet, that he has been arrogant, that he has been foolish
... Surely in the Senate tonight an unanswerable case has been made that the Chief Justice should have
disclosed at least his interest in Mundroola and its transactions . . . Chipp said that, reluctantly, the
Australian Democrats would vote against Evanss motion, nor, to avoid impertinence to Evans, would they
move an amendment. But, he said, if there had been a motion to censure the Chief justice or express concern
about his lack of conduct, we would have voted for it. However, Chipp concluded, to have a parliamentary
committee investigate the conduct of the Chief Justice of the country does not make sense to me, and,
therefore, we cannot support it. Did the press (and, come to that, the Labor Party) drop the Barwick /
Mundroola matter the moment (Barwick) declared himself not guilty? In The Australian Financial Review
the next day, 30 April, Mungo MacCallum wrote: As a number of people on both sides put it one way or
another after the event, their moods varying through anger, frustration, uneasiness, and sheer puzzlement:
What were they trying to hide? In a leading article next day, the Review said the issues were unresolved. The
Australian on 1 May reported Mr Roderick Meagher, president of the NSW Bar Council, as saying that the
facts disclosed in Barwicks letter completely answered the scurrilous and politically-motivated allegations
... made against him. It is regrettable that such allegations (of conflict of interest) should have been made at
all. The Australian, in a leading article on 2 May headed When the smearing has to stop, said: 1 Sir
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Page 28
Garfields letter, tabled quite properly by the Prime Minister on Tuesday, gave a full, reasonable and
persuasive answer to the charges being bandied about in Parliament and in some sections of the press ... This
is intended as our last word on the matter. Let us urge the same on everybody. On the same day, a long
comment piece by Russell Barton in The Sydney Morning Herald traversed Evanss speech and the holes in
the Barwick-Fraser-Byers assertions. The outstanding questions were again reviewed in The National Times
on 4 May by Stuart Simson and Marian Wilkinson. They reported Evans as saying that several important
questions still appeared unresolved. A week later Simson reported that on 2 May in the ACT Supreme Court
Justice Francis Xavier Connor had, by implication, torpedoed Frasers theory that it was up to the judge to
decide whether or not he was in a position of conflict of interest. This was virtually the last reference in the
press to the matter. Nor was it revived when in May 1982 a Senate Estimates Committee discovered that a
Cabinet meeting on 10 February, 1981, the day before Barwick retired, made a special arrangement
whereby he was given amenities worth about $60 000 a year, including a full-time car and driver worth $32
000. The Mundroola affair touched the integrity of one of our most important institutions, the High Court, yet
it now appears that many got it wrong. For Barwick, assuming he had nothing to hide, and in the interests of
the institution, it may have seemed proper to have welcomed Evanss request for a parliamentary inquiry, and
to have made a full disclosure on the outstanding questions. Fraser likewise. Sections of the press, notably in
the Fairfax group, appear to have been inclined to pursue the matter. But, in the face of Barwicks silence, the
Governments determination to stonewall the issue, and the absence of new material, they may have found it
difficult to get a fresh toehold on the affair. Nor did the Labor Party seek to clear up the outstanding questions
when it got into office. A spokesman for Senator Evans told me, in June 1985: Senator Evans did not
institute any inquiries when he became Attorney-General because the facts relating to impropriety and
conflict of interest had been established clearly, as set out in Senator Evans speech to Parliament. There had
never been any suggestion of illegality or criminality. It may be that the main reason the Barwick matter was
handled badly was that the time was out of joint. 1980 was not 1984. As exemplified by Senator Chipps
remark in the Senate, in 1980, few people, one suspects, were ready to face the possibility that a Chief Justice
could be involved in dubious practice. The watershed came in 1983, when the ABCs Chris Masters found
some Sydney magistrates prepared to state publicly that a magistrate had sought to fix a case. The Wran
Royal Commission, and the imprisonment of a magistrate for four years, followed. Nothing, in terms of
questions about the administration of justice, has been the same since. One guesses that after that, if Barwick
were still Chief Justice, if Fraser were still Prime Minister, and if Senator Chipp had the balance of power in
the Senate, it would be unlikely that the matter could be disposed of peremptorily with a parliamentary
manoeuvre. As far as is known, Barwicks brother judges then on the court, Sir Ninian Stephen, Murphy, Sir
Harry Gibbs, Sir Ronald Wilson, Sir Anthony Mason and Sir Keith Aickin, did not decline to sit with him, or
invite him to demonstrate that he in fact had no pecuniary interest in Mundroola. Evans did not pursue
inquiries into it when he became Attorney-General in 1983. The matter is thus still unresolved. However, in a
Senate debate on fringe benefit taxes on 4 June 1986, the Labor Finance Minister, Senator Peter Walsh, said
he could remember a case concerning someone who had been a director of a company called Mundroola and
had lived in a house, also called Mundroola, which was owned by the company. Walsh went on: He had
been living in that house and had been a director, according to what the Corporate Affairs Commission
records showed, from 1974 to 1981 (sic). Under those circumstances, either that director was obliged to
include in his personal tax return - as imputed income for a company-occupied house - some notional rent, or,
alternatively, the company was required to include in its company taxation return the rent received from the
director-tenant of the company-owned house. The tenant concerned at the time was the Chief Justice of the
High Court of Australia. Very conveniently in 1981 (sic), a letter of resignation became public which was
dated 1974. The ink was still wet. In other words, the Chief Justice of Australia at that time was in a situation,
by any prima facie grounds of evidence, in which he was a tax evader. To get himself round this problem, he
became a forger. Opposition Finance spokesman, Senator Anthony Messner, said Walshs remarks were
irrelevant. Walsh replied: The case to which I referred is highly relevant because the prima facie evidence
shows that the Chief Justice of Australia between 1974 and 1981 (sic) was a tax evader. mr t in Comments:
Thanks Evan. Last week I tried to post a comment several times on the suitability of Barwick for any legal or
political address. Michelle Grattan had noted his advice to Kerr in the Whitlam dismissal but there was no
mention of his position during the growth of tax evasion. My comments (unpublished by the ABC and
Fairfax) were brief but mentioned the Bottom of the Harbour schemes. Below is an extract from 2012 in the
AFR: phill Parsons in Comments: What more is to be said. Partisan to the last and in the climate Abbott has
created, not unlike Howards climate when he freed people from politically correct speech on racism only to
find he had unleashed Ein Reich [One Nation] under Hanson, Abbott has allowed by his failure to lead, all
sorts of divisive elements on the social body. National Security has raised up the spectre of religious
intolerance and racism in the guise of Reclaiming something that never was and by running out the IPA far
right agenda he has given imprimatur to the warriors against fairness and justice for the many. Heydon has
nailed his flag to the mast and must go. Even if he stays his good ship Terror of the Unions is so battle
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1-9-2015
Page 29
scarred by the Captain, the pick of the Captain, that all its goods will be tainted and change no opinions when
they are unloaded. END QUOTE
I have not canvassed all and every issue of the 67 page 31-8-2015 reasons but view that while you
may to some extend have been justified to dismiss the application to disqualify yourself as the royal
commissioner, I view that the manner in which you did this, and so concealing relevant issues and
being vague and aloof about the identity/identities of certain persons must be considered that you
were so to say fabricating some reasons to suit yourself and seeking to hide the truth to some extent.
Your omission to refer to the OBJECTION TO JURISDICTION and in the entire reason
you only refer in items 31 to jurisdiction as follows a court of competent jurisdiction, then I
view a FAIR MINDED PERSON being alerted to there was an OBJECTION TO
JURISDICTION but never dealt with would beyond doubt hold that you were bias/implied
bias.
QUOTE
31. Of course if the application to the decision-maker for disqualification fails, the applicant 31.then has the
opportunity to seek relief from a court of competent jurisdiction. But why should the applicant have to
go through the preliminary step of applying to the decision-maker? Whatever the reasons, it is at least a
custom and, leaving aside exceptional circumstances, possibly also a rule of law, that in the first
instance the application should be made to the person whom the applicant alleges is biased or is
apparently biased. If that is not done, the court to which the application is made may reject it as
premature.
That is so whether the person in relation to whom the disqualification application is made is a judge in a
court, or a member of a non-curial Tribunal, or a Royal Commissioner or a person conducting any other
form of inquiry. This was the course followed, for example, in relation to a challenge to the Royal
Commission into the Building and Construction Industry: Ferguson v Cole (2002) 121 FCR 402. See
also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 361 [74]; Australian National
Industries Ltd v Spedley (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
END QUOTE
I may alert you also to my 15-2-2014/5-7-2014 OBJECTION TO JURISDICTION which for

example also stated:
QUOTE 20140215 G. H. Schorel-Hlavka O.W.B. to Royal Commission-Building Industry issues, etc

QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980).
The law provides that once State and Federal jurisdiction has been challenged, it must be proven.
END QUOTE
QUOTE Hagens v. Lavine, 415 U.S. 533,
Once jurisdiction is challenged, it must be proven
END QUOTE
QUOTE Standard v. Olsen, 74 S. Ct. 768,
No sanctions can be imposed absent proof of jurisdiction.
END QUOTE
QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
Jurisdiction can be challenged at any time, even on final determination.
END QUOTE
.
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1-9-2015
Page 30
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.
Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and
confer no right, offer no protection, and afford no justification, and may be rejected upon direct
collateral attack.
END QUOTE
.
QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64
(2) The Court always has jurisdiction to entertain proceedings for the purpose of and up
to the point of deciding whether it has jurisdiction to make the orders sought in the
proceedings.
(3) In carrying out that limited exercise of jurisdiction, the Court is required to determine any
essential facts upon which the existence of its jurisdiction to make the orders sought ultimately
depends (the jurisdictional facts). That determination is a function which is incidental to the
exercise of the jurisdiction referred to in (2) above.
END QUOTE
And
QUOTE Yunghanns & Ors & Yunghanns & Ors & Yunghanns [1999] FamCA 64
(6) Once a respondent challenges the Courts jurisdiction to make the orders sought, the Court,
before considering the adjudicational facts, must find the existence of the jurisdictional facts, on
the balance of probabilities.
END QUOTE
QUOTE.
FAMILY LAW RULES 20042003 No. 375 - RULE 3.05
Objection to jurisdiction
(1)
If, in a Form 3A, a respondent objects to the jurisdiction of the court, the respondent will not
be taken to have submitted to the jurisdiction of the court by also seeking an order that the
application be dismissed on another ground.
(2)
The objection to the jurisdiction must be determined before any other orders sought in the
Form 3A.
END QUOTE
.
Director General, Department of Commerce v Cianfrano and Anor [2008] NSWADTAP 56 (24 July 2008) NEW
SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL
QUOTE
3 The Tribunal decided, contrary to the Departments submission, that it did have jurisdiction to determine the
adequacy of search question: Director-General, Department of Commerce and anor (No 2) [2006] NSW
ADT 195. The matter was listed for further directions. The Tribunals orders were as follows:
1. First Respondents objection to jurisdiction dismissed.
2. Tribunal to reconvene to make further directions as appropriate.
END QUOTE
.
Trapman v Sydney Water Corporation & Ors [2009] FMCA 942 (16 September 2009)
QUOTE
1. Accordingly, I find that the Court has jurisdiction to deal with the matters contained in Particulars (a)(ii),
(v), (vii), (viii), (ix), (x), (xi) and (xii) of Exhibit 1.
1. It follows that I find that the Court does not have jurisdiction to deal with the matters contained in
Particulars (a) (i),(iii), (iv) and (vi) of Exhibit 1.
1. I make orders accordingly.
END QUOTE
END QUOTE 20140215 G. H. Schorel-Hlavka O.W.B. to Royal Commission-Building Industry issues, etc
Page 30
1-9-2015
Page 31
As such, I specifically provided relevant Authorities on the issue of OBJECTION TO
JURISDICTION!
While you may claim your staff failed to inform you about the (repeated) OBJECTION TO
JURISDICTION as you may argue or may implied argue as was with the Liberal Party association
regarding the invitation (albeit as set out above it seems to me you knew or ought to have known it
was a Liberal Party event) that your staff didnt inform you about it and you didnt read the
attachments of my emails containing my sub missions as to OBJECTION TO JURISDICTION.
Well that in my view may indicate incompetence if not total incompetence to organise internal office
affairs. However it should not serve as an excuse to blatantly have disregarded basic rules of
litigation. After all if not you but your staff decide what you should or shouldnt be made aware of
then why not so to say have musical chairs and let them conduct the Royal commission?
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National
QUOTE Mr. CLARK.the protection of certain fundamental rights and liberties which every individual citizen is entitled to
claim that the federal government shall take under its protection and secure to him.
END QUOTE
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
While I consider unions to be necessary evils, nevertheless they are regretfully needed to protect the
vulnerable workers who often are exploited by scrupulous employers. As with those in the
Parliaments there often are a range of crooks operating in those areas and likewise so in unions.
(Political parties are a form of unions).
By all means let us hold ac countable those who are crooks but let us not blatantly disregard the rule
of law in the process and go on some witch-hunt disregarding the rights of those who may end up
with criminal conviction and then perhaps have the subsequently overturned because the Royal
commission failed to act within the rule of law itself.
In my view you ought to disqualify yourself as I view your reasons of 31-8-2015 not to do so
makes it blatantly clear to me you were deliberately vague and aloof about the involvement of
the Liberal Party involvement, and I view from merely checking some items on the internet that
the state director of the Liberal Party Mr tony Nutts involvement makes it very clear it was a
Liberal Party issue, regardless if you knew or could have suspected it was a fundraising issue.
QUOTE
52. Several years ago I had one or more informal discussions with the coordinator of the Sir
Garfield Barwick Address concerning the possibility of delivering the address at some future
time. (See ACTU MFI-7 Tab 11.) On 10 April 2014, a further approach was made orally to
Page 31
1-9-2015
Page 32
me in the Banco Court after I had delivered the Acton Lecture. I indicated to the coordinator
that I would be amenable to delivering the Sixth Annual Sir Garfield Barwick Address in
August 2015 if the Commission had completed its work.
END QUOTE
In my view considering the undisclosed precise oral communications on 10 April 2014 and
otherwise I view a FAIR MINDED PERSON may knew or reasonably knew it was a Liberal
Party matter, hence your indication the commission had to complete it work first.
This correspondence is not intended and neither must be perceived to refer to all
issues/details.
Awaiting your response,
G. H. Schorel-Hlavka O.W.B. (Friends call me Gerrit)
MAY JUSTICE ALWAYS PREVAIL
(Our name is our motto!)
Page 32
1-9-2015

20150901-G. H. Schorel-Hlavka O.W.B. Re PRESS RELEASE As To Royal Commission Into TUGaC-submission To Disqualify For Bias-Implied Bias-Supplement-1

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From The Age

The corporatising of our courts

I may add that French CJ, prior to

Federal Court of Australia

Let us see what the Framers of the Constitution stated:

JA Thomson Adopting Commonwealth Laws: Section 51(xxxvii) of

Now to the email issue:

I may alert you also to my 15-2-2014/5-7-2014 OBJECTION TO JURISDICTION which for

QUOTE 20140215 G. H. Schorel-Hlavka O.W.B. to Royal Commission-Building Industry issues, etc

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

MAY JUSTICE ALWAYS PREVAIL

(Our name is our motto!)

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