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Kevin Rudd PM 14-4-2010

C/o R.McClelland.MP@aph.gov.au
5 .
Cc: Tony Abbott MP
Tony.Abbott.MP@aph.gov.au
.
AND TO WHOM IT MAY CONCERN
10 .
Re: Health issues – Referendum issues - etc
.
Kevin,
Below I quote “7-4-2010-SUBMISSION - REFERENDUM COUNCIL” as to avoid
15 having to set out the same again.
.
There appears to me, as a CONSTITUTIONALIST, to be a considerable misconception as to
the true meaning and application of s.128 referendum provision in The Commonwealth of
Australia Constitution Act 1900 (UK), at least this I also gather from the various media reports,
20 etc. Section 128 of the constitution is to provide electors the opportunity to approve or veto a
proposed amendment of the constitution, however, what seems to be misconceived its that
regardless if an amendment is approved by a s.128 referendum it may still not be constitutionally
have any legal force.
.
25 Let me give two examples:
The Commonwealth of Australia submits to the electors a s.128 referendum as to approve for the
Commonwealth to set up nuclear power stations in South Australia. All States but South
Australia supports this and vote for the constitution to be amended accordingly. One would seem
to hold that as the majority of the States and the majority of the electors approved of the
30 amendment to the constitution then it is applicable. The truth is far from it. S.123 requires that
first a State referendum is held and only if this State referendum approved of this then and only
then can the Commonwealth of Australia pursue a s.128 referendum for the same.
As the Framers of the Constitution made clear whenever it was relating to the sovereign rights of
a State then unless the State electors approved of this first it couldn’t be that other States could
35 somehow by s.128 referendum could override the affected State.
.
Lets use another example.
The commonwealth desires to store nuclear wast in Tasmania as this is a smaller State and an
island and so can be better supervised by the navy and so it submits to the electors a s.128
40 referendum to give the commonwealth powers to store nuclear wast in Tasmania and to take such
action as it deems appropriate to remove people from their properties, etc.
All States other then Tasmania vote to approve of this but Tasmania opposes the referendum.
Despite that there is a majority of States and a majority of electors voting in favour of this
amendment to the constitution the failure of first obtaining s.123 State referendum approval in
45 Tasmania means that the s.128 referendum is worthless.
.

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As the Framers of the Constitution made clear the State couldn’t combine to override
another States sovereign rights.
.
Therefore, when it comes to the issue of health and as Premier John Brumby on 14-4-2010
5 during his National press Club address made clear to pursue “Putting Patients First” there is no
s.128 referendum powers possible to override the State of Victoria as to health matters as it
would required for each State to hold a State referendum within s.123 of the constitution to
approve this and then a s.128 referendum to deal with this.
.
10 A clear example how things can go horrible wrong when you get lawyers giving advise who are
not CONSTITUTIONALIST and so give ill conceived advise is the 1967 s.51(xxvi)
referendum to amend this section to remove the exclusion of Aboriginals. No one seemed to have
understood that this would then deny the Commonwealth to legislate as to religious conduct, etc,
of Aboriginals because of s.116. You find States still legislating in regard of Aboriginals even so
15 they lost this power way back in 1967!
The only way states can legislate as to the effect upon Aboriginals is where they pass a “general
law” such as say a criminal act which then applies to all citizens and visitors to the State.
However, the Commonwealth could in fact enact legislation that may override “general law”.
Say the State of Victoria passes a law that any person residing in the State of Victoria is entitled
20 to own and operate a gold mine if they desire to do so. The Commonwealth of Australia however
passes a law that Aboriginals are not permitted to own and operate gold mines without a specific
licence granted by the Commonwealth. Because of s.51(xxvi) the State legislation for so far as it
relates to Aboriginals would not apply to Aboriginals because while ordinary it would be it is
that the Commonwealth legislation prohibits this without a special Commonwealth permit.
25 Actually, the very purpose for s.51(xxvi) was that the Framers of the Constitution held that the
Commonwealth could prohibit Chinese to operate a mining licence for a number of years, etc. As
such, ordinary local contract conditions within the State of Victoria may not apply where the
commonwealth in regard of a specific race has legislated. Any Commonwealth law regarding a
certain race must to applicable to all members of that race, and as such one cannot have that an
30 Aboriginal could hold a gold mine in WA and not in Victoria.
One cannot have that Aboriginals are denied their permits or property rights in the Northern
Territory but not Aboriginals elsewhere because all, no matter if they are a politicians, doctor,
lawyers, etc, and no matter where they reside they all fall under the same legislation.
The re is no such thing as the Commonwealth to legislate for example only for the Northern
35 Territory Aboriginals but not so for other Aboriginals as it must be applicable to all Aboriginals.
.
The Commonwealth of Australia cannot fund health matters unless it has constitutional
powers to do so and clearly it has constitutional powers within;
.
40 The Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
(xxiiiA) the provision of maternity allowances, widows’ pensions,
child endowment, unemployment, pharmaceutical,
sickness and hospital benefits, medical and dental services
45 (but not so as to authorize any form of civil conscription),
benefits to students and family allowances;
END QUOTE
.
Hansard 8-2 -1898 Constitution Convention Debates (Official Record of the Debates of the National
50 Australasian Convention)
QUOTE Mr. BARTON.-
I take it that in the absence of a provision in the Constitution conferring that power
upon the Commonwealth it will be impossible for the Commonwealth to do so. For
this reason I think we need scarcely trouble ourselves to impose any restrictions.

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Under a Constitution like this, the withholding of a power from the Commonwealth is
a prohibition against the exercise of such a power.
END QUOTE
.
5 Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-The particular danger is this: That we do not want to give to
the Commonwealth powers which ought to be left to the states. The point is that
we are not going to make the Commonwealth a kind of social and religious power
10 over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. GORDON.-
15 The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
20 QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
25 .
Hansard 19-4-1897 Constitution Convention Debates
QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.

The reductions may be on a sliding scale, but they must always be uniform.
30 END QUOTE
.
Hansard 19-4-1897 Constitution Convention Debates
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
35 necessary for the Federal Parliament to make them commence at a certain amount at once.
We have pretty heavy duties in Victoria, and if the uniform tariff largely reduces them at
once it may do serious injury to the colony. The Federal Parliament will have power to
fix the uniform tariff, and if any reductions made are on a sliding scale great injury
will be avoided.
40 END QUOTE
.
Hansard 17-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
But it is a fair corollary to the provision for dealing with the revenue for the first five years
45 after the imposition of uniform duties of customs, and further reflection has led me to the
conclusion that, on the whole, it will be a useful and beneficial provision.
END QUOTE
.
Hansard 11-3-1898 Constitution Convention Debates
50 QUOTE
What is really wanted is to prevent a discrimination between citizens of the
Commonwealth in the same circumstances.
END QUOTE
.
55 Not only in regard of taxation but also with funding of hospitals, etc, the Cmmonwealth is bound
to apply uniform financial support.
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.
Hansard 16-2-1898 Constitution Convention Debates
QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that
5 if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
END QUOTE
.
10 Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. CARRUTHERS (New South Wales).-
It does not require a majority of the states to insist that the Constitution shall be
obeyed, because a majority of the states cannot by resolution infringe the
Constitution.
15 END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Sir JOHN DOWNER.-I hate the word "unification," and will not use it. I have said
20 before that there is much to be said for amalgamation. I can understand that there
might be an immense amount of money saved by amalgamation in the way of carrying
on the government of the country, and there might be an immense amount of force
from the head of the Commonwealth which you cannot get from the partial
disintegration which is involved even in federation. But it is not our mission to
25 establish an amalgamation of these colonies. We are here under Bills passed by our
various colonies, and there is a claim for federation, and not a claim for merging the
colonies in one common concern.
END QUOTE
.
30 Hansard 17-2-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-

That Parliament shall, subject to the provisions of this Constitution, have full power
35 and authority to make laws for the peace, order, and good government of the
Commonwealth.
We see there that the Commonwealth is named as distinguished from the states. We
have our Constitution framed in this way with a Senate to guard what? The interests of the
states, so that the Commonwealth shall not intrude one inch into what is retained as
40 the executive rights and jurisdiction of the states.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
45 The people of the various states make their own contracts amongst themselves, and if in
course of their contractual relations disagreements arise, and the state chooses to
legislate in respect of the subject-matter of them, it can do so.
END QUOTE
.
50 Hansard 27-1-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-Why should you interfere with the laws in the different colonies
affecting the relations of masters and servants, which are purely a matter of domestic

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legislation? Why should you hand over that purely state function to the federal
authority?
END QUOTE
.
5 HANSARD 17-2-1898 Constitution Convention Debates
QUOTE Mr. OCONNOR.-
We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
10 to it.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
15 Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
20 QUOTE
Mr. BARTON.- The position with regard to this Constitution is that it has no
legislative power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
25 .
HANSARD 9-2-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
END QUOTE
30 .
Hansard 6-3-1891 Constitution Convention Debates
QUOTE Mr. THYNNE:
I shall quote from Mr. Dicey's recent work, which is very clear in its language. He says:

One of the characteristics of a federation is that the law of the constitution must be
35 either legally immutable or else capable of being changed only by some authority
above and beyond the ordinary legislative bodies, whether federal or state
legislatures, existing under the constitution.
END QUOTE
.
40 Hansard 6-3-1891 Constitution Convention Debates
QUOTE Mr. THYNNE:
The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
are the complete legislative power of the whole of these colonies, and they shall be so.
45 From [start page 106] them will rise, first of all, the federal constitution which we are
proposing to establish, and in the next place will come the legislative powers of the several
colonies. The people will be the authority above and beyond the separate legislatures,
and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
50 states, they will be charged with the full power and dignity of the state, and it is from them
that we must seek the giving to each of those bodies that will be in existence concurrently
the necessary powers for their proper management and existence. Each assembly, each
legislature, whether state or federal existing under this constitution, will be as Dicey
again says-a merely subordinate law-making body whose laws will be valid, whilst

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within the authority conferred upon it by the constitution, but invalid and
unconstitutional if they go beyond the limits of such authority.
END QUOTE
.
5 Hansard 18-3-1891 Constitution Convention Debates
QUOTE
Sir GEORGE GREY: I beg to propose that the following resolution stand as resolution
No. 5:-
The inhabitants of each of the states of federated Australasia ought to be allowed to
10 choose, and if they see fit from time to time to vary, the form of state government under
which they desire to live. Provision should therefore be made in the federal constitution
which will [start page 478] enable the people of each state to adopt by the vote of the
majority of voters, their own form of state constitution.
Question proposed.

15 Sir HENRY PARKES: I wish to raise a point of order upon this resolution, and I do
it with the utmost respect to the distinguished gentleman who has moved it. My point
of order is that the resolution goes beyond our instructions. We have been sent here
for one object and one object only, and that is, to prepare a scheme for the framing of
a federal constitution. Anything outside of these prescribed words cannot be dealt
20 with under the commission in virtue of which we have come here.
END QUOTE
.
Hansard 18-3-1891 Constitution Convention Debates
QUOTE
25 Dr. COCKBURN: I think we have nothing whatever to do with deciding the details
of the state constitutions. On the other hand, I think it appertains to the functions of this
Convention to decide that the power of framing a constitution shall be in the hands of the
several states. At present the legislatures of the various colonies can only be altered
with the consent of the Imperial Government. Is it intended that that shall remain? When
30 we have a federated Australasia, in which we have state legislatures and a federal
legislature, is it intended that the state legislatures shall have the power of altering their
constitutions at will or not? From that point of view I think the proposition put forward by
the hon. member, Sir George Grey, is decidedly within the powers of the Convention, the
power to lay down a general rule, without touching the details of any individual
35 constitution, that the various states should have the power of framing their own
constitutions according to the will of the majority of the people of those states.
END QUOTE
.
Again (RE Section 123);
40 Hansard 18-3-1891 Constitution Convention Debates
QUOTE Sir GEORGE GREY:
Provision should therefore be made in the federal constitution which will [start page
478] enable the people of each state to adopt by the vote of the majority of voters,
their own form of state constitution.
45 END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
50 provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
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END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
5 Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
10 Mr. BARTON.- We can have every faith in the constitution of that tribunal. It is appointed
as the arbiter of the Constitution. . It is appointed not to be above the Constitution, for
no citizen is above it, but under it; but it is appointed for the purpose of saying that
those who are the instruments of the Constitution-the Government and the
Parliament of the day-shall not become the masters of those whom, as to the
15 Constitution, they are bound to serve. What I mean is this: That if you, after making
a Constitution of this kind, enable any Government or any Parliament to twist or
infringe its provisions, then by slow degrees you may have that Constitution-if not
altered in terms-so whittled away in operation that the guarantees of freedom which
it gives your people will not be maintained; and so, in the highest sense, the court you
20 are creating here, which is to be the final interpreter of that Constitution, will be such a
tribunal as will preserve the popular liberty in all these regards, and will prevent,
under any pretext of constitutional action, the Commonwealth from dominating the
states, or the states from usurping the sphere of the Commonwealth.
END QUOTE
25 .
HANSARD 10-03-1891 Constitution Convention Debates
QUOTE
Dr. COCKBURN: All our experience hitherto has been under the condition of
parliamentary sovereignty. Parliament has been the supreme body. But when we
30 embark on federation we throw parliamentary sovereignty overboard. Parliament is
no longer supreme. Our parliaments at present are not only legislative, but
constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
35 body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
40 judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
END QUOTE
.
Hansard 15-9-1897 Constitution Convention Debates
45 QUOTE
The Hon. A. DEAKIN: I say the great bulk of them are of that character, and am open to
refutation if I am wrong, I should say that the whole of the thirty-seven subjects, but,
indisputably, the great bulk of them, are subjects on which no question of state rights and
state interests could arise except by the merest accident. It is, as the right hon. gentleman
50 admitted, a grave defect in our constitution if we permit these questions to be left for all
time to be determined in a purely states house, or by a state referendum, when those
questions are not state questions-when they ought to be decided, not on state lines, but on
national lines, and by a national referendum.
END QUOTE
55 .
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The above quotations ought to place it beyond doubt that no s.128 referendum could interfere
with the State of Victoria as to somehow deny it its legislative right to deal with hospitals in the
manner it prefers because unless and until there is an s.123 State referendum by the State of
Victoria any s.128 referendum will be null and void.
5 The same so in regard of any referendum affecting any other State.
.
My wife at 77 is so scared to get proper medical care that she has private health insurance as she
is well aware that for me just to have a scan I was advised in November 12009 to wait until at
least February 2011 just to have a scan of my knee. Now, nothing I heard of the 14-4-2010
10 speech of Mr John Brumby Premier of Victorias is going to change my waiting time and neither
so will anything the Commonwealth proposes, and as such we have politicians doing their usual
stuff rather then to address the real issues.
My wife’s late husband used to attend to public hospitals even so he was in a private health
insurance. In my view when a person is in a private health insurance but occupies a public bed
15 then this robs another person of a public bed and I view this should be curtailed as the private
health insurance collects membership fees while the public system provides the care. Yet, if a
public patient were to be transferred to a private hospital then the private hospital would be quick
to charge for this. This means that the public system should equally charge the private
health system for its members using public beds!
20 Why indeed is it that if my wife needed the same scan then she could have it immediately as a
private patient but I have to wait for more then 15 months? How can there be preventative care
when instead of having a scan to avoid it to become more costly I have to wait 15 months just for
a scan and in the meantime the damage is getting worse and so the medical bill to address the
issue?
25 In regard of;
QUOTE
(xxiii) invalid and old-age pensions;
END QUOTE
As I have pointed out for years in my books published in the INSPECTOR-RIKATI® series on
30 certain constitutional and other legal issues that the Commonwealth while always pursuing to
take more and more legislative powers of the States still has not managed even to appropriately
provide for invalid and old age pensioners despite having this legislative powers since federation.
Premier John Brumby in his address on 14-4-2010 at the National Press Club also then referred
to the people using hospital beds because no age care beds are available, again, precisely as I
35 have pointed out for years! As such, the real issue is that the Commonwealth rather then for ever
being in a power grabbing exercise should try to manage the issues already at hand so then and
only then can a proper assessment being made as to the true state of affairs about hospitals.
When we are referring to thousands of old age pensioners occupying hospital beds because
there are no suitable old age care centre beds as well as many young disabled persons occupying
40 hospital beds because there are not, better to state nearly none at all, disabled care centre beds for
the young, then this is clearly an artificially created problem principally created by the
Commonwealth by its inaction that that it would in my view be utter scandalous if the
Commonwealth would seek to force ahead with some s.128 referendum for a grab of power
rather then to use that money to finally start caring for the invalid and old aged pensioners who
45 badly are in need of proper care facilities.
Prior to the 2007 Federal election, I recall you claiming that the buck would stop with you
and no blaming others, where as I understand you have consistently and persistently blamed the
states pretending the Commonwealth can do better while in fact it cannot even manage the
invalid and age pensioners! While so much was wasted with the stimulus package and reportedly
50 a $2 million dollars paid showing merely some concrete the truth is that this money could have
achieved a lot in invalid and age care facilities. After all those people who are in age care during
their working life contributed with taxes so that most politicians now in power had FREE
EDUCATION at universities, the same they now deny to other Australians.
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.
Hansard 10-3-1891 Constitution Convention Debates
QUOTE Mr. DIBBS:
where we are giving the people of the country practically a free education-and it should be
5 common to all Australia-we should instil into the minds of our children the necessity for
training, and, as a quid pro quo for that free education,
END QUOTE
.
QUOTE 7-4-2010 SUBMISSION
10 WITHOUT PREJUDICE
Legal and Constitutional Affairs Committee 7-4-2010
Laca.refs@aph.gov.au
02-6277 2358
.
15 AND TO WHOM IT MAY CONCERN
.
Ref: REFERENDUM ISSUES
.
Sir/Madam,
20 In this submission I intend to deal with referendum issues but first let me explain my
own position.
As a (self-educated) CONSTITUTIONALIST I look upon legal matters differently then most
lawyers/politicians are doing and in the process able to expose the misconceptions that occur so
often.
25 .
To avoid this SUBMISSION to end up in hundreds of pages I have omitted Authorities but
they can be provided if requested, and they also have been widely published by me in my
books in the INSPECTOR-RIKATI® series on certain constitutional and other legal issues.
.
30 During a recent completed litigation debates I was representing a man who previously was facing
up to 5 years imprisonment and had guardianship orders issued over him and then he called me
in to take up his fight for JUSTICE and despite up to about 20 lawyers so far involved in the
case and 6 contempt proceedings out of the total 16 hearing I managed to turn around this case
and criticised all and any lawyers involved for acting unlawfully, etc, then the judicial member,
35 also subjected to my severe criticism, proposed to have me removed as a representative of this
man making clear having 3 lawyers on stand by to take over the case. I then made it clear that no
lawyer could represent this man better then I did nor had the competence to do so and neither
understood the legal including constitutional issues as I did and that my criticism to expose their
rot could not be held against me because I had a duty and obligation to pursue JUSTICE for the
40 man I represented and challenged anyone to prove this man ever acted unlawfully as it was
merely a fabrication by the lawyers concerned and no reliable evidence existed whatsoever in
that regard. At the end of the day the administration orders were set aside and the contempt
proceedings already had been permanently stayed. This is the competence I have to see through
rot and to expose the truth.
45 .
Anyone who thinks that this is not relevant to referendum issues better hold on their seat to be
awoken of a shake up.
Lets have a look at the 1999 failed REPUBLIC referendum.
The Commonwealth of Australia is constitutionally not a country but a POLITICAL UNION
50 where by the States (the former colonies) by agreement as like the States in Europe) decided to
combine certain legislative powers and called it the Commonwealth of Australia, as in Europe it
is called “EUROPEAN UNION”. Both are limited political unions.

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CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [52]

The legislative structure from before federation to current, including the effect of the United Kingdom being
a signature to the EUROPEAN UNION constitution, and how this is relevant to Australia’s legal system. [49]

5 Flow chart to expose the reduction of legislative powers (legally or illegally) of the States. [55]

Prior to Federation, under the British Crown,

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,
Queensland, Tasmania and New South Wales [11]
10
CONSTITUTIONAL LEGISLATIVE POWERS FLOW CHART [51]

See also; Aggregate Industries UK Ltd, R (on the application of) v English Nature & Anor[2002 EWHC
908 (Admin) (24 th April, 2002)and Judgments – Mark (Respondent) v Mark (Appellant), OPINIONS, OF
THE LORDS OF APPEAL for judgment IN THE CAUSE, SESSION 2005 -6 [[2005] UKHL 42 on appeal
15 from [2003] EWCA Civ 156 [50]

Colony WA
Western Australia & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [20]

20 Colony Qld

Queensland & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [21]

Colony Vic

Victoria & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [22]
25
Province SA & NT

South Australia & Northern Territory & Parliamentary sovereignty, Permitted to amend it's own colonial
constitution [23]

30 Colony NSW

New South Wales & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [24]

Colony TAS

Tasmania & Parliamentary sovereignty, Permitted to amend it's own colonial constitution [25]
35
******************************************************************************

After federation, under the British Crown,


British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,
40 Queensland, Tasmania and New South Wales [12]

TAKE NOTICE: At federation there is an abolition of parliamentary sovereignty of Commonwealth, State


and Territorian Parliaments & requires approval of State referendum to amend State constitution (including
to refer legislative powers to the Commonwealth). [27]
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After federation under the British Crown, the Commonwealth of Australia (federal) Parliament
constitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western
Australia, Queensland, Tasmania and New South Wales & Territories (abolition of parliamentary
5 sovereignty). [13]

TAKE NOTICE: At federation there is an abolition of parliamentary sovereignty of Commonwealth, State


and Territorian Parliaments & requires approval of State referendum to amend State constitution (including
to refer legislative powers to the Commonwealth). [26]
10
T (Lp) [35] (Other acquired Territories)

Western Australia (State) [2] (Legislative powers)

15 Queensland (State) [1] (Legislative powers)

Victoria (State) [33] (Legislative powers)

South Australia (State) [32] (& some years NT) (Legislative powers)
20
NT (Lp) [31]

New South Wales (State) [30] (Legislative powers)

25 ACT (Lp) [29]

Tasmania (State) [28] (Legislative powers)


******************************************************************************

30 [14] After federation, under the British Crown, the Commonwealth of Australia (federal) Parliament
constitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western
Australia, Queensland, Tasmania and New South Wales & Territories with added legislative powers of
successful referendums.

35 After federation, under the British Crown,


British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,
Queensland, Tasmania and New South Wales [18]

EUROPEAN UNION constitutional powers transferred from the British Parliament applies to British
40 amendments of Commonwealth constitution, but is not binding upon existing constitutional powers of the
Commonwealth of Australia.

However can be used in aid of Commonwealth and State/Territory legislative provisions. [16]

Tasmania (State) [3] (Legislative powers)


45
ACT (Lp) [4]

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New South Wales (State) [5] (Legislative powers)

NT (Lp) [6]

5 South Australia (State) [7] (Legislative powers)

Victoria (State) [8] (Legislative powers)

Queensland (State) [9] (Legislative powers)


10
Western Australia (State) [34] (Legislative powers)

T (Lp) [36] (Other acquired Territories)

15 ******************************************************************************

After federation, under the British Crown, the Commonwealth of Australia (federal) Parliament
constitutional powers transferred from the former colonies (now States); South Australia, Victoria, Western
Australia, Queensland, Tasmania and New South Wales & Territories with added legislative powers of
20 successful referendums as well as unconstitutional reference of legislative powers of States (not approved by
State referendums, as is constitutionally required.) [15]

After federation, under the British Crown,

British Parliament constitutional powers over colonies; South Australia, Victoria, Western Australia,
25 Queensland, Tasmania and New South Wales [19]

EUROPEAN UNION constitutional powers transferred from the British Parliament applies to British
amendments of Commonwealth constitution, but is not binding upon existing constitutional powers of the
Commonwealth of Australia.
30 However can be used in aid of Commonwealth and State/Territory legislative provisions. [17]

T (Lp) [37] (Other acquired Territories)

Tasmania (State) (Lp) [38]


35
ACT (Lp) [39]

New South Wales [40] (State) (Lp)

40 NT (Lp) [41]

Victoria (State) (Lp) [42]

Queensland (State) (Lp) [43]


45
Western Australia [44] (State) (Lp)

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South Australia (State) (Lp) [45]

******************************************************************************

5 The forever shrinking legislative powers of the former colonies, now States, by the illegal confederation
conduct of both State and Federal parliamentarians, from federation onwards. All state reference of
legislative powers and/or amendment to a State constitution without approval by way of State referendum
remains to be ULTRA VIRES, and so without legal force. [47

10 HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience
hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body.
But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer
supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the
power of legislation, but the power of amending their constitutions. That must disappear at once on the
15 abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will
cease to have the power of changing its constitution at its own will. Again, instead of parliament being
supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being
vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed
with, instead of there being a high court of parliament, you bring into existence a powerful judiciary which
20 towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the
constitution. END QUOTE [48]

25 THIS IS WHAT WE END UP WITH [56]

[46] 12-2 -2010

Mr G. H. Schorel-Hlavka ©
30 CONSTITUTIONALIST, Author

Publisher, Consultant, Attorney


MAY JUSTICE ALWAYS PREVAIL ®

35 .
When then the EUROPEAN UNION on basis of its constitution enacts a law then it is
applicable to all States within its POLITICAL UNION , which are countries such as The
Netherlands, Britain, France, Germany, etc, etc.
All laws of those countries therefore are subject to any constitutional powers the EUROPEAN
40 UNION issues albeit any existing constitutional legislation of each country cannot be affected.
As such The Commonwealth of Australia Constitution Act 1900 (UK) is free from any
interference of the EUROPEAN UNION legislation albeit any EUROPEAN UNION
legislation that is COMPLIMENTARY The Commonwealth of Australia Constitution Act
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1900 (UK) is applicable. As such, any laws the British Parliament may enact in relation to the
Commonwealth of Australia will be subject to any constitutionally based legislation of the
EUROPEAN UNION. Actually as I understand it Queensland is proposing to have a new
constitution in place but what it seems to fail to understand is that this new constitution would be
5 subject to any EUROPEAN UNION legislation that is in place and that would be in place in
future, where as the colonial Queensland constitution isn’t.
Actually, since 1921 with the unconstitutional abolition of the Queensland Upper House not a
single piece of legislation passed thereafter was constitutionally valid because by the federation
the Colonies became States and by this were subject to all and any amendment of its State
10 constitutions would be only valid if approved by a State referendum. The abolition of the
Queensland Upper House never was approved by a State Referendum and as such for
constitutional purposes the Queensland Upper House was never abolished. Meaning that any
laws purportedly enacted without having passed through the Queensland Upper House has no
constitutional meaning and is without legal force.
15 It also means that the Queensland proposed new constitution, even if purportedly approved by
the Queensland State electors would fail because it is not a proposed amendment of the
Queensland Constitution that has been passed through the Queensland Upper house and therefore
cannot be valid as a referendum.
.
20 When Pauline Hanson and David Ettridge were imprisoned, I wrote to the then Premier of
Queensland, Mr Peter Beattie on 1 September 2003 setting out why the judgment against Pauline
Hanson and David Attridge was legally defective. On 30 September 20-003 I published this
correspondence and relevant material in my book INSPECTOR-RIKATI® on CITIZENSHIP
and provided copies also to Pauline Hanson and her sister Judy Smith for the upcoming hearing
25 in the Queensland Criminal Court of Appeal. Subsequently the Supreme Court of Queensland
ruled precisely as I had set out in my book and set aside the convictions.
What I have discovered over the decades is that professors of law teaching at universities, etc,
have their title but in my view often haven’t got a clue what they are talking about. Because a
person has law degrees doesn’t mean the person is a CONSTITUTIONALIST in fact generally
30 having a law degree means the person lacks any ability to be a CONSTITUTIONALIS!
.
Let me give a simple explanation;
The 1988 constitution commission “ASSUMED” that the Commonwealth had legislative powers
as to “CITIZENSHIP” and each and every person who is to be come a member of the bar of a
35 Supreme Court must have “Australian citizenship”. Well, fancy this there is no such thing as a
nationality “Australian citizenship” and any lawyer who does not understand and comprehend
this in my view should not practice law let alone teach law at any university because if one
doesn’t even know once own constitutional standing then how can you teach others.
.
40 As Author of books in the INSPECTOR-RIKATI® series on certain constitutional and other
legal issues I published numerous books about this and even more proved in court I knew what I
am talking about as on 19 July 2006 after a 5 year epic legal battle between the Commonwealth
of Australia and myself I defeated the Commonwealth of Australia comprehensively and not a
single Attorney-General had challenged my numerous submissions based on constitutional
45 issues.
.
Constitutionally “Australian citizenship” is derived “AUTOMATICALLY” from having
obtained “State citizenship” and anyone not understanding this should not practice law!
.
50 Anyhow, s.128 of the constitution provides referendum powers but only to amend the 128
sections of the constitution and no more and cannot amend the pre-amble or the British Crown
application to the commonwealth of Australia and so neither interfere with Australians being
British nationals under the British Crown.
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.
Any referendum power is limited to what is constitutionally permissible. Therefore a REPUBLIC
referendum was utter and sheer nonsense.
.
5 Any referendum to purport to amend the pre-amble is also utter and sheer nonsense.
.
As the Framers of the constitution made clear no State or Federal parliament could amend its
own constitution but States could only amend their constitution by within s.123 submitting for
the approval of State electors a proposed amendment. Queensland failed to do so with the
10 purported abolition of its Upper house and within s.41 of the (federal) constitution not a single
Queensland has franchise in federal elections if it only has a single House of Parliament.
.
Section 41 also has embedded in its that for example any Aboriginal who obtained State
citizenship by this AUTOMATICALLY obtained Commonwealth citizenship also known as
15 Australian citizenship. Now translate this back as to Aboriginals voting in federal elections and
you find that the records show that Aboriginals who had state franchise voted in federal elections
also in 1901.
.
As such the 1967 referendum to amend s.51(xxvi) as to include Aboriginals purportedly so they
20 could obtain Commonwealth franchise was a con-job and indeed in the 1950’s the then Federal
government was advised that amending s51(xxvi) would not be the proper way to follow rather
then a new subsection needed to be implemented as to avoid the baggage associated with
s51(xxvi) as it then stood for.
.
25 S.51(xxvi) purpose was to “DISCRIMINATE” against what the Framers of the Constitution
held to be “inferior coloured races” and the Framers of the Constitution made clear that
Aboriginals were to be equal to other Australians (s127 purpose must not be misunderstood in
that regard) The 1967 referendum was not for so far I understand it about changing this section
as to how it applies to “inferior coloured races” such as to discriminate against Chines, Japanese,
30 etc. As I understand it the purpose of the referendum of 1967 was to provide special powers to
the Commonwealth of Australia to give it legislative powers to advance Aboriginals. Clearly
s.51(xxvi) could not be the vehicle for this because it was a section that was to legislate adverse
to a “inferior coloured race” and not to legislate against the “general community”!
The amendment of s.51(xxvi) therefore could not provide for the Commonwealth to provide
35 legislation for Aboriginals to benefit Aboriginals because a section of the constitution must be
interpreted having the same meaning to all races referred to and cannot have one meaning for one
race while the opposite meaning for another race. As the referendum didn’t propose to amend
s.51(xxvi) as to have a different application to all and any race, not being Aboriginals, then
clearly the amendment of s.51(xxvi) must be deemed to have been that it only permitted the
40 Commonwealth of Australia to legislate adversely to aboriginals and not to their benefits.
Neither can it be deemed that as I understood a former judge of the High Court of Australia
promoted that this section of “race” applies to minority groups such as homosexuals as this
simply was never as such intended as it was limited to “inferior coloured race”.
More over, when for example considering the Northern Territory Intervention, this is
45 unconstitutional in that the Framers of the Constitution made clear that any legislation within
s.51(xxvi) must be applied to all persons of that race. Meaning that any legislation that was to
remove ownership of land to Northern Territory Aboriginals equally then must be applied to
other Aboriginals even if it was say a doctor or lawyer living in Melbourne, as then their property
rights also would be gone.
50 .
While professor Owens reportedly suggest a certain body, I have canvassed this for many years
already to be known as the OFFICE-OF-THE-GUARDIAN, a constitutional body that advises

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the Government, the People, the Courts of the true meaning and application of constitutional
provisions.
.
Fancy to have politicians dealing with a constitutional amendment they haven’t got a clue how it
5 applies. Fancy having a group of people getting together to consider the proposed amendment of
the constitution without having any extensive knowledge as to the real existing constitution as to
its meaning and application.
.
I could state constitutional powers within each House of Parliament not even the clerk of the
10 House of Representatives or Senate ever knew existed and is not mentioned in any standing
orders even so it is embedded in the constitution!
.
The issue therefore is that you cannot have some temporary advise committee that may lack any
understanding about the true meaning and application of the constitution but you need a long
15 term permanent body.
.
In 1923 the High Court of Australia made a decision regarding the rights of the Commonwealth
and how it applies in relation to s.85, etc.
.
20 As I have published already the High Court of Australia simply misconceived what is
constitutionally applicable as it did in the Pochi case, the Sue v Hill case, the MABO case, the
Sykes v Cleary case and not to forget the 14 November 2006 so called WorkChoices case, as
well as many other cases.
We even had a judge of the High Court of Australia refusing to hand down a decision upon the
25 basis he didn’t know the constitutional issue concerned!
.
What is therefore needed is a permanent body directly under the governor-General, as to avoid
any political influence, and that this body provides anyone with the same advise FREE OF
CHARGE. Meaning that if the High Court of Australia has a constitutional issue to be decided it
30 can draw upon the extensive information it can obtain from the OFFICE-OF-THE-
GUARDIAN and then has its own legal research to perhaps further check the details but at least
never again will a judge of the High Court of Australia refuse to hand down a judgment. As such
the need for a permanent body exists, as constitutional matters are ongoing dealt with by the
courts.
35 .
Because as I so often proved in court that lawyers involved in cases do not even realise the true
legal meaning of legislation let alone constitutional provisions and so embark upon a litigation
trial that could from onset have been avoided it would be utter and sheer nonsense to claim that
only lawyers could be in the OFFICE-OF-THE-GUARDIAN as there is a need to have
40 ordinary people who use common sense to be involved. I have published about this in the past
extensively. As is for example in a country like Iran, any PROPOSED legislation, not just
proposed amendments to the constitution, should be checked for its constitutional validity. This
however the Commonwealth of Australia has failed to do since federation and so also the States.
For example all this nonsense about s.51(xxxvii) reference of legislative powers is misconceived
45 and ill-conceived and no one seems to be aware that any reference of legislative powers within
s.51(xxvii) actually is to be approved by way of s.123 State referendum to become valid. Being
any proposed amendment of the constitution and/or any proposed legislation and/or amendment
of legislation it all should be appropriately checked for constitutional validity and not that
Members of Parliament vote on a bill and/or proposed amendment of the constitution not having
50 a clue if in fact this is constitutionally permissible and in the process may cause the enactment of
legislation and/or an amendment of the constitution being submitted for a referendum that the
electors are so to say kept in the dark about it being unconstitutional. Considering the huge cost
associate with referendums and/or with the issue of legislation I view that the cost of maintaining
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an OFFICE-OF-THE-GUARDIAN would be a lot cheaper in that regard also. I have in the past
published how this OFFICE-OF-THE-GUARDIAN could operate free of political bias.
.
Let’s refer back to the case I mentioned above where I represented a man who had been dragged
5 through a total of 16 hearings and yet, as I proved there never even any jurisdiction existed from
onset. I found that the man’s objections upon constitutional grounds were blatantly disregarded
and by this taxpayers end up feeding a protracted VEXATIOUS litigation that could have been
avoided from onset.
.
10 This submission has been kept very brief (well for me as ordinary I cover hundreds of pages with
set outs) but must not be held to refer to all relevant issues but merely seeks to indicate that a
permanent body such as the OFFICE-OF-THE-GUARDIAN should be in place.
.
Awaiting your response, G. H. Schorel-Hlavka
15 END QUOTE 7-4-2010 SUBMISSION
.
Constitutionally the obligation is now for the Commonwealth to provide total funding regarding
hospital and other medical services as the constitution provided for this and then the States can
attend to organising what they need to do as to how to run hospitals.
20 It should be understood that ultimately being it State and/or Federal funding the taxpayers are
paying for it. As such the Commonwealth of Australia should not do any grandstanding as if it is
their money because it is all monies belonging to the taxpayers!
At time of federation the Framers of the Constitution had some concern that the Commonwealth
of Australia would be seeking to blackmail some States into submission but in the end it was
25 held that the constitution protects them from such kind of terrorism, as they held it to be.
The Commonwealth doesn’t require any referendum to fund hospitals or other medical services
because it already has this power and there is no need for the Commonwealth to take over
hospitals because then it would interfere with internal State matters.
.
30 In my view the Commonwealth should fund States as per head of citizens and considering
the influx of interstate residents it should be also providing for a ratio per patient payment.
As for people residing in small communities, not just Aboriginals, then the funding should be as
to reflecting the difficulties in those area’s so as to seek to assure that people living in remote
area’s/small townships are not deprived of proper health care.
35 The states should also implement a ratio per doctors so that we do not have too many doctors
practicing in clusters and other area’s are without. Likewise the Commonwealth can assist with
restricting new arrivals such as doctors to spend at least 3 years in country area’s to get
acquainted to Australia and its people, etc. By this encouraging doctors perhaps to stay and settle
in those area’s. There are numerous ways the heath issues can be appropriately addressed if just
40 politicians for once really did consider the rights of patients, including invalid and age care
pensioners above their own self interest for a grab of power.
This correspondence is not intended and neither must be perceived to refer to all relevant
matters.
.

45 MAY JUSTICE ALWAYS PREVAIL®


.
Our name is our motto!

Awaiting your response, G. H. Schorel-Hlavka (Gerrit)


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