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WITHOUT PREJUDICE

Clive Palmer Mineralogy 8-5-2010


(No known email address, hence care off editor@miningaustralia.com.au to pass on!)
5 .
Cc: Kevin Rudd PM, C/o R.McClelland.MP@aph.gov.au
Cape Lambert, Cape Lambert Resources Ltd, C/o tony@capelam.com.au
Jacques Nasser AO, BBus, Hon DT, BHP BILLITON C/o businessconduct@bhpbilliton.com
Rio Tinto enquiries@riotinto.com, media.enquiries@riotinto.
10 enquiries.mediaaustralia@riotinto.com
Mitch Hooke, Mineral Council of Australia C/o editor@miningaustralia.com.au
Wayne Swan, Treasurer, Wayne.Swan.MP@aph.gov.au
Colin Barnett, West Australian Premier, wa-government@dpc.wa.gov.au
Tony Abbott MP, Tony.Abbott.MP@aph.gov.au
15 .
Ref:100508 – Clive Palmer-Kevin Rudd PM – Profit Taxation-Mining-etc
.
Clive,
as a CONSTITUTIONALIST I will set out in this correspondence why I view the
20 proposed SUPER TAX on Mining profits is unconstitutional (the same about the ETS – etc) as
such but in the process of explaining matters I will have to go into certain details about the
constitution, etc, as to give you a better understanding and perception about it all.
.
http://www.austlii.edu.au/cgi -
25 bin/disp.pl/au/cases/cth/high_ct/1999/27.html?query=%22thi+act+and+all+law+made+by+the+parliament%22#fn50
QUOTE
Constitutional interpretation
The starting point for a principled interpretation of the Constitution is the
search for the intention of its makers[51].
30 END QUOTE
.
As a CONSTITUTIONALIST this is where I make the difference because unlike the
Commonwealth assuming it has legislative powers I research the true intentions of the Framers
of the Constitution!
35 .
As will be set out below, while the Commonwealth of Australia has taxation powers nevertheless
it can only exercise such taxation powers within the framework of the constitution and for so far
it is beyond it then it is without legal force. In my view the SUPER TAX on mining is as such!
.
40 Hansard 30-3-1897 Constitution Convention Debates
QUOTE Mr. REID:
We must make it clear that the moment the Federal Parliament legislates on one of
those points enumerated in clause 52, that instant the whole State law on the subject is
dead. There cannot be two laws, one Federal and one State, on the same subject. But
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that I merely mention as almost a verbal criticism, because there is no doubt,
whatever that the intention of the framers was not to propose any complication of the
kind.
END QUOTE
5 .
This is also an issue so much ignored and a clear example is the issue of environment,
conservation, etc, where Australians (including Australian businesses) are basically terrorised by
all levels of legislative provision instead of just the one level of legislation from the relevant
Parliament that has the legislative powers.
10 Let us consider some other “principles” embedded in the constitution!
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on
15 the Constitution we will have to wipe it out."
END QUOTE
.
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
20 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
END QUOTE
25 .
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
30 case the Constitution will be above Parliament, and Parliament will have to conform
to it.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
35 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
40 .
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
45 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
.
50 Hansard 17-2-1898 Constitution Convention Debates
QUOTE
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Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-
That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
5 Commonwealth.
END QUOTE
.
Hansard 17-3-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON.-
10 When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
15 people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
20 QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
25 Again, as a CONSTITUTIONALIST I researched such issues and for example where the
Commonwealth of Australia in its legislation uses “AVERMENT” that it doesn’t have to prove
matters I successfully opposed this in court and the Commonwealth of Australia was ordered to
file and serve all evidence it sought to rely upon. The Commonwealth of Australia legal
representatives then argued that this would involve truck loads of documents but the Court held
30 that it was up to the Commonwealth of Australia as to what evidence it desired to rely upon and
it was bound to file and serve each document as such. I took the position that constitutionally the
Commonwealth of Australia could not interfere with the judicial processes of a State Court
exercising federal jurisdiction as was purported by the Commonwealth of Australia legislation
regarding “AVERMENT” and the court upheld this! Yet, despite of this success lawyers simply
35 are unaware of this “AVERMENT” being unconstitutional as such and their clients are still
subjected to this unconstitutional as result!
Now lets say that the Commonwealth of Australia takes a mining compnay to a State court
(exercising federal jurisdiction) and the commonwealth legislation provides for “AVERMENT”
so that it doesn’t have to prove its case rather that the mining company has to disprove it., the
40 truth is that the Commonwealth legislation as to “AVERMENT” is not legally enforceable but
again how many company lawyers or for that any other lawyer is aware of this? Only when the
relevant State such as the State of Victoria provided for “AVERMENT” in regard of Bass Strait
then it is applicable in the State courts because it is part of State legislation and even then there
can be constitutional issues but no need for me to go into that.
45 .
As author I have published various books in the INSPECTOR-RIKATI® series on certain
constitutional and other legal issues and also defeated the Commonwealth of Australia
comprehensively after a 5-year epic legal battle on constitutional issues and as such so to say
proved in the courts my knowledge and ability about constitutional matters. I have also published
50 why the 14 November 2006 High Court of Australia decision about WorkChoices was so ill-

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conceived and that s.51(xx) is not the right vehicle for this and in fact the Framers of the
Constitution did set out matters.
.
HANSARD 31-1-1898 Constitution Convention Debates
5 QUOTE
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection of
our interests, but also for the just interpretation of the Constitution:
END QUOTE
.
10 HANSARD 1-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. OCONNOR (New South Wales).-
Because, as has been said before, it is [start page 357] necessary not only that the
administration of justice should be pure and above suspicion, but that it should be
15 beyond the possibility of suspicion
END QUOTE
.
Well why not ask your lawyer Geoff Smith to check the High Court of Australia judgement if he
found the following statements in the 14-11-2006 judgment regarding WorkChoices legislation!
20 You will find that High Court of Australia so to say took out of context, concealed or otherwise
omitted relevant parts that proved WorkChoices legislation was unconstitutional!
The following publication in “076-Chapter 022A -failure of the case-etc” a 188 page Chapter
sets out certain issues in that regard also. There are libraries who have this on file and so don’t
worry about any cost to purchase as that is not what I am on about!
25 .
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A Book about the Validity of the High Courts 14-11-2006 Decision
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35 A Book about the Validity of the High Courts 14-11-2006 Decision
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.
HANSARD 17-4-1897 Constitution Convention
QUOTE Mr. DEAKIN:
40 They both desire to retain for their Several States for all time the privilege of
controlling industrial disputes within their own borders.
END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
45 QUOTE Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it
occurs.
END QUOTE
.
50 HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir EDWARD BRADDON (Tasmania).-

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We have heard to-day something about the fixing of a rate of wage by the federal
authority. That would be an absolute impossibility in the different states.
END QUOTE
.
5 HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON: If they arise in a particular State they must be determined by the laws of
the place where the contract was made.
END QUOTE
10 .
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
15 END QUOTE
.
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
The people of the various states make their own contracts amongst themselves, and if
20 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
.
Hansard 27-1-1898 Constitution Convention Debates
25 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 legislation?
Why should you hand over that purely state function to the federal authority?
END QUOTE
30 .
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-My honorable friend will hand that over to the Federal Parliament. I do
not want to hand over to the Federal Parliament too many of these difficulties. This, in my
35 view, should be solved by the local authorities themselves. They are the people to deal
with their own questions of industrialism. I do not want to enter into a discussion as to the
modes of carrying out this proposal; that will be a matter for the Federal Parliament if we
decide to introduce this power. But I will put to my honorable friend what is a practical
question in connexion with this power. Who is to decide as to when an industrial dispute
40 extends beyond the limits of a state? Who is to decide when a dispute originating in South
Australia enters into the colony of Victoria, so that Victoria shall be put under some kind of
martial law?
Mr. ISAACS.-It is a question of fact, like anything else.
END QUOTE
45 .
HANSARD 27-1-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-What relation has this to customs duties? The industrial life of the state is
considered by all of us (subject to this exception, it may be) a thing of purely domestic
50 concern. We do not want to interfere with the domestic life, or with industrial life, except in
the last resort. If you are going to introduce such a thing as this it must be the Federal
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Ministry which will have to decide, subject to the Parliament, and you will introduce the
greatest complication and intensity of feeling that was ever seen.
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
5 END QUOTE
.
While a mining company or for that matter any other company may operate in different
State/federal jurisdictions nevertheless it will remain to be a State issue where an industrial
dispute is contained the borders of one State and/or territory., however the Framers of the
10 Constitution made an exemption in regard of waterside workers as it held that this should be
under federal industrial relations control and yet in the matter of Patricks the courts never
understood this at all to be so where in fact in my view the Federal government had the powers to
interfere with the water side workers issue.
Let’s however for a moment look at your position and if you might be able to afford yourself to
15 take time to get a better understanding about constitutional matters so much relevant to the
SUPER TAX and other legal issues confronting companies!
.
QUOTE http://au.news.yahoo.com/a/-/australian-news/7160441/miner-blames-new-tax-for-move-to-africa/
Miner blames new tax for move to Africa
20 By Stephen Johnson, AAP May 4, 2010, 6:56 pm

An iron ore miner is blaming the federal government's new super profits tax
for its decision to cancel planned exploration projects in Australia and move
to Africa.
25 The announcement comes as Treasurer Wayne Swan engages in a spat
with Australia's fifth richest man, Clive Palmer, over a plan to adopt a key
recommendation of the Henry tax review.
West Australian Premier Colin Barnett fears more mining companies will
leave Australia if the flagged tax on super profits in the resources sector is
30 enacted.
Perth-based iron ore miner Cape Lambert on Tuesday announced it would
cancel planned exploration works in Western Australia.
END QUOTE
.
35 I propose you to now invest in constitutional matters to such an extend that it will be the
best thing you ever did, both for yourself as well as others, and this kind of investment
requires basically your time and interest rather then monies!
.
QUOTE http://en.wikipedia.org/wiki/Clive_Palmer_(businessman)
40 In June 2002, he was appointed Adjunct Professor of Business, at Deakin University's
Faculty of Business and Law, a role he held until 2006. During this time, Palmer delivered
a series of lectures as part of Deakin's MBA Residential Programs. [3]
END QUOTE
.
45 Ok, I have no law degrees but hey, I get involved in a case that went on for years involving more
then 20 lawyers and then exposes that each and every lawyer involved were in the wrong and
simply “assumed” details and the person I assisted successfully in the end didn’t have to pay me
a cent because I do it for the love of pursuing JUSTICE!

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Since 1982, I have conducted a special lifeline service MAY JUSTICE ALWAYS PREVAIL®
(a registered trademark) to assist those contemplating suicide/murder and to pursue JUSTICE
even so generally it is that I am financially out of pocket because of the cost I incur and do not
claim back against those I assist.
5 I would like you to “invest” your time and effort as to likewise work on constitutional issues and
in the process you will find that we all are then a lot better of and more over you will discover
your true place in society. After all, while you may be a Professor of Business, etc, I can assure
you that if you and other mining company executives and for this politicians and lawyers
(including judges) had a better understanding and comprehension as to what is constitutionally
10 permissible and applicable then this nonsense about the SUPER TAX regarding mining
companies profits would be buried.
.
QUOTE en.wikipedia.org/wiki/Clive_Palmer_(businessman) -
Professor[1] Clive Palmer is a businessman from Queensland, Australia.
15 Clive is Queensland's richest man As of 8 August 2009 (2009 -08-
08)[update], and Australia's fifth richest man,[2] with BRW estimating his
worth at around AUD$3 billion,[3] with others putting it at $6 Billion.[4]
END QUOTE
.
20 QUOTE Clive Palmer - Interview from Sunday Profile - (ABC)
Clive Palmer - the self-made billionaire who has been on a resources
spending spree. ... Well, Clive Palmer should know the answer to that
question. ..
END QUOTE
25 .
QUOTE http://www.goldcoast.com.au/article/2008/06/07/12153_more-gossip-news.html
Despite the late night, Mr Palmer has been at his Brisbane office since 7am, a ritual he
has religiously abided by since he dropped out of university and started working as a real
estate agent, aged 21.
30 Mr Palmer motions for Gold Coast lawyer, Geoff Smith, now his senior legal man, to stick
around and listen into the interview. He does so, leaving 15 minutes later to take a
phone call.
END QUOTE
.
35 Obviously you got plenty of money and so not one who cannot afford to take a day of work as to
try to educate himself about the most important matter governing our society and that is to learn
about the true (not fabricated) meaning and application of The Commonwealth of Australia
Constitution Act 1900 (UK).
.
40 I have absolutely no doubt that no matter how skilled your top legal man Geoff Smith were to be
in legal matters I could devise a test on constitutional that I have absolutely no doubt he would
fail as simply the true meaning and application of the constitution is not taught in law schools
and even judges of the High court of Australia have proven to lack the appropriate knowledge
that a judge even refused to hand down a judgment upon the basis that he didn’t know the
45 constitutional issues concerned.
.
I did request your email address but by the time of writing have not as yet received any replay
and so will include the comments so you can see I did make the request:
.
50 QUOTE http://www.mineralogy.com.au/contact.html 20.25 5-5-2010 email
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I require the email address of Mr Cilve Palmer so I can forward a correspondence regarding
the Kevin Rudd PM proposed super tax which as a CONSTITUTIONALIST I question the
constitutional validity thereof. I propose to set this out in greater details in a letter!
END QUOTE
5 .
QUOTE (Reply received) immediately on 5-5-2010)

The message was sent successfully!


Ihre Nachricht:

Name: Mr Gerrit Hendrik Schorel-Hlavka

E-Mail: mayjusticealwaysprevail@schorel-hlavka.com

Subject: email address

I require the email address of Mr Cilve Palmer so I can forward a


correspondence regarding the Kevin Rudd PM proposed super tax which as
Message:
a CONSTITUTIONALIST I question the constitutional validity thereof. I
propose to set this out in greater details in a letter!
10 QUOTE
.
Before going into details about the SUPER TAX I might just refer to BHP Billiton listing of
titles and make known that I have none of them as I am like most Australians a person who
desires JUSTICE for all and not one trying to use a title to make an impact no matter how ill
15 conceived it might be. Titles do not give intelligence!
.
QUOTE http://www.bhpbilliton.com/bb/aboutUs/companyOverview/ourBoard.jsp

Qualification Abbreviations
AC Companion of the Order of Australia
20 AO Officer of the Order of Australia
AB/BA Bachelor of Arts
BBus Bachelor of Business
BComm Bachelor of Commerce
Bec Bachelor of Economics
25 BE Bachelor of Engineering
BS (Mech Eng) Bachelor of Science (Mechanical Engineering)
BSc Bachelor of Science
FAICD Fellow Australian Institute of Company Directors
FAIM Fellow Australian Institute of Management
30 FAusIMM Fellow Australasian Institute of Mining and Metallurgy
FCA Fellow Institute of Chartered Accountants
FCIS Fellow of the Chartered Institute of Secretaries
FCPA Fellow Australian Society of Certified Practising Accountants
FIEAust Fellow Institution of Engineers, Australia
35 FTSE Fellow Academy of Technological Sciences and Engineering
Hon DT Honorary Doctorate of Technology
LLB Bachelor of Laws

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MA(Econ) Master of Arts in Economics
MBA Master of Business Administration
MICE Member of the Institution of Civil Engineers
MSc Master of Science
5 SF Fin Senior Fellow Finance
END QUOTE
.
I understand that Mr Tony Abbott leader of the Opposition made known that voting for the
coalition is to avoid the SUPER TAX, well that in my view is a misconceived issue as if it ain’t
10 constitutionally permissible then it has got nothing to do with any election.
.
QUOTE http://bigpondnews.com/articles/National/2010/05/05/Abbotts_super_tax_hostility_458730.html
Abbott's super tax hostility
Wednesday, May 05, 2010 » 06:52pm
15 Tony Abbott's ramped up his hostility towards the super-profits tax following a meeting
with mining executives, warning the only way of avoiding it would be to elect a coalition
government.

The comments came as mining stocks recovered some lost ground today after being heavily
sold off in recent days.

20 The opposition leader's warned Australian jobs would evaporate in the tens of thousands
unless there's a change in government.

But Kevin Rudd's maintained the viability of the resources industry isn't in jeopardy as a
result of his tax reform plans.

The comments have been supported by global credit ratings agency Fitch Ratings which
25 says the tax won't damage the long-term prospects of resource companies such as BHP and
Rio Tinto.
END QUOTE
.
Neither do I view the alleged reported statements that the Mining industry may seek to explore
30 elsewhere is helpful because again if it ain’t constitutionally valid then would it not be obvious to
deal with that in the first place?
.
QUOTE http://au.news.yahoo.com/a/-/australian-news/7160441/miner-blames-new-tax-for-move-to-africa/
Miner blames new tax for move to Africa
35 By Stephen Johnson, AAP May 4, 2010, 6:56 pm

An iron ore miner is blaming the federal government's new super profits tax for its decision
to cancel planned exploration projects in Australia and move to Africa.
The announcement comes as Treasurer Wayne Swan engages in a spat with Australia's fifth
40 richest man, Clive Palmer, over a plan to adopt a key recommendation of the Henry tax
review.
West Australian Premier Colin Barnett fears more mining companies will leave Australia if
the flagged tax on super profits in the resources sector is enacted.
Perth-based iron ore miner Cape Lambert on Tuesday announced it would cancel planned
45 exploration works in Western Australia.

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"I've made the decision now: I'm ceasing all drilling work in Western Australia that we
were planning to do later this year in one of my mines up in the Pilbara," the company's
executive chairman Tony Sage told ABC Radio.
"What is the point if you're going to get slugged an extra tax?"
5 Mr Sage said the resources company would instead shift its investment dollars, earmarked
for Australia, to four projects in Africa.
The federal opposition's deputy leader Julie Bishop told Sky News that the Cape Lambert
decision would be the first of many such announcements to come.
Mining magnate Clive Palmer labelled Mr Swan a fool for wanting to levy a 40 per cent tax
10 on profits made from non-renewable resources from July 2012.
Mr Palmer said he would consider taking projects like coal developments offshore to places
like Indonesia where he would be taxed at only 20 per cent.
"When I was taxed at 30 per cent I might have done it in Queensland, but now I'm going to
be taxed at 70 per cent I'll go ahead and do it in Indonesia," he told reporters on the Gold
15 Coast.
"So, the treasurer is just a fool. That money he thinks he's getting, he's not going to get
more money - he's going to get less money."
Mr Swan hit back, questioning Mr Palmer's motives as he began talks with the mining
industry.
20 "Clive Palmer acts in the interests of his own fat pockets. He doesn't act in the interest of
the Australian people, and it's my job to act in the interests of the Australian people and
make sure they get a fair share," Mr Swan told reporters.
Mr Barnett called on the federal government to abandon its plan for the Resource Super
Profits Tax, telling parliament the 40 per cent levy was "too high".
25 Earlier, he said the tax plan, announced on Sunday, would jeopardise future projects in
Australia.
"I have been struck over the last 24 hours by the numbers of both larger and smaller
companies that are clearly reviewing investment decisions," he told ABC Radio.
Commonwealth Securities chief economist Craig James said uncertainty about whether the
30 Senate would pass the government's proposed tax had created uncertainty for investors.
Prime Minister Kevin Rudd says he's open to negotiations with mining companies on the
details of his government's proposed new super tax on their profits.
But he told reporters in Perth that Australians wanted a fairer share of the massive profits
miners made from resources that were owned by Australians.
35 Mr Rudd slammed West Australian Premier Colin Barnett for trying to "walk both sides of
the street" in asking for more money for infrastructure while attacking the new super profits
tax that would raise the revenue to pay for more infrastructure in WA.
The prime minister flew to the WA capital on Tuesday for talks with mining company
officials on the new super profits tax.
40 He said the proposed 40 per cent tax on profits was "about right". But he declined to say if
the government might reduce it.
END QUOTE
.
As for Premier Colin Barnett indicating to increase royalties, I have on face value no issue
45 with this as whatever is underground belongs to the State and if the State make some
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arrangement with any mining company as to royalties, etc, then I view this is well within its
rights and hence not an issue I need to entertain further. However it should be pointed out that
the Territories are in regard of s.122 of the constitution in the same place as being a quasi State
and as such I view the Territorial governments in that regard can deal with royalties as like a
5 state. It should be understood however that this is a different kind of legislation (being within its
s.122 powers) and not being one such as those provided for within s.51.
.
The issue therefore is that the Commonwealth of Australia has two sperate legislative powers one
is that of in regard of each and every territory (regardless if it has provided to a certain extend
10 self governing powers) and the other is one as a Commonwealth of Australia for the “whole” of
the Commonwealth of Australia. In my published books in the INSPECTOR-RIKATI® series
on certain constitutional and other legal issues I have canvassed such issues extensively and do
not need to repeat the same therefore in this correspondence, however can state that there is a
considerable misconception and application as to the constitution and it is this what causes the
15 problems and financial mess we are now in as a Commonwealth of Australia.
.
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes on
20 the Constitution we will have to wipe it out."

END QUOTE
.
With the “SUPER TAX” as far as I am aware of it is to deal with a tax levy on earning of mining
companies and not others as to above a certain income of profits. Now don’t expect me to state it
25 is unconstitutional and you just have to accept this merely because of that I am a
CONSTITUTIONALIST because I do no such thing as to merely claim something without
proving it. As such let’s consider other relevant statements of the Framers of the Constitution that
will show that it is unconstitutional!
.
30 Again the issue of taxation might be a constitutional power but it must be within the frame work
of the constitution and I view it is not in regard of the SUPER TAX, for this let’s go along for
the ride to learn more about how constitutional powers can apply and how it is very limited.
.
It should be pointed out that while in the United Kingdom the Government has what is known as
35 the Henry the VIII powers no such powers (as for a government to amend legislation without the
parliament having done so) exist within the Commonwealth of Australia however the High Court
of Australia has ill conceived held that it is also applicable in the Commonwealth of Australia.
More over the High Court of Australia has made other rulings which are ill conceived, such as
that the Commonwealth of Australia is not bound by the Magna Carta and “for peace, order
40 and good government”. Also it should be kept in mind that any taxation that was levied and
later is found not to be part of legislation MUST be refunded to each person against whom it was
levied. As such, if the Commonwealth were to levy the SUPER TAX and then it was to be held
unconstitutional then as the Framers of the Constitution made clear it must be refunded. Hence,
with the COCOPOP tax levy that the legislation didn’t make it then the monies was to be
45 refunded to those who paid it.
With the GST I have all along maintained it is unconstitutional and my books also set this out in
considerable details.
.
And there numerous other issues however I will not go into those details but also considering that
50 the Framers of the Constitution stated:
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.
.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
5 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
10 man in the Federal Parliament will be a sentry, and the whole constituency
behind the Federal Parliament will be a sentry.
END QUOTE
.
Then the problem is that when any australian pursues matters before the courts on constitutional
15 issues then more then likely the case will be railroaded and cost ordered against the person who
seeks to do no more but hold the government accountable as to what is constitutionally
permissible and what is prohibited.
.
HANSARD 1-2-1898 Constitution Convention Debates
20 QUOTE Mr. HIGGENS:
I think it is advisable that private people should not be put to the expense of having
important questions of constitutional law decided out of their own pockets.
END QUOTE
.
25 We therefore have basically a government that disregard the RULE OF LAW (the constitution)
and we have found how this had caused the Commonwealth of Australia to be plunged into huge
debts which could have been avoided had the Commonwealth accepted the OFFICE-OF-THE-
GUARDIAN, a constitutional council, for the government, the People, the Parliaments and the
Courts as to constitutional limitations and other provisions.
30 .
As I will quote below also an email about the waste full spending by the Federal government and
now this SUPER TAX somehow trying to pay for some of it, where as had the OFFICE-OF-
THE-GUARDIAN been consulted I could have made clear to the Federal government, as I did
in any event in numerous writings, that its spending on the disastrous insulation project, the
35 school funding, the solar panels program and numerous others was unconstitutional.
While I understand Kevin Rudd PM argued that it was justified because of the global downturn
to deal with Australia in my view no DICTATORSHIP can ever be justified. The moment you
accept a breach of constitutional limitations for whatever purpose then there is no
DEMOCRACY but a DICTATORSHIP as politicians will always find excuses to claim breach
40 of constitutional limitations is justified.
.
Because of past judgments of the High Court of Australia I view it better to quote below some
Chapters I previously published which set out matters regarding “for peace, order and good
government, etc”;
45 .
QUOTE Chapter 007A The Great Deception
Chapter 007A The Great Deception

* Gary, “The Great Deception” by whom?

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**#** INSPECTOR-RIKATI®, just read the Chapter 034T of the book (published on 17-3-
2007);

5 INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS


For the quest of JUSTICE, in different ways. Book on CD.
ISBN 978-0-9580569-4-6 was ISBN 0-9751760-4-3

QUOTE Chapter 034T


10 Gary, The Great Deception?

INSPECTOR-RIKATI®, this document also sets out how the judges of the High Court of
Australia are deceiving us as to the application of the Constitution! It is to be read in conjunction
with other documents such as “Is our Constitution safe”, “The Constitution is a PERPETUAL
15 LEASE”, etc.
Anyhow, I quote below the document “The Great Deception”;

The Great Deception

20 QUOTE
I cannot find any excuse whatsoever that judges of the High Court of Australia would
divert totally from the legal principles that are embedded in the Constitution.
END QUOTE

25 In my 2-8-2003 correspondence, published previously in my book (30 September 2003);

INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 978-0-9580569-6-0 was ISBN 0-9580569-6-X
30
I included the following, in regard of the issue of the detention of David Hicks;

QUOTE

35 http://store.yahoo.com/4crests/magnacarta.html
When representatives of the young republic of the United States gathered to draft a
constitution, they turned to the legal system they knew and admired--English common law
as evolved from Magna Carta. The conceptual debt to the great charter is particularly
obvious: the American Constitution is "the Supreme Law of the Land," just as the rights
40 granted by Magna Carta were not to be arbitrarily canceled by subsequent English laws.

This heritage is most clearly apparent in our Bill of Rights. The fifth amendment guarantees

No person shall . . . be deprived of life, liberty, or property, without due process of law and
45 the sixth states

. . . the accused shall enjoy the right to a speedy and public trial, by an impartial jury.
Written 575 years earlier, Magna Carta declares

50 No freeman shall be taken, imprisoned, . . . or in any other way destroyed . . . except by the
lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will
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we deny or delay, right or justice. In 1957 the American Bar Association acknowledged the
debt American law and constitutionalism had to Magna Carta and English common law by
erecting a monument at Runnymede. Yet, as close as Magna Carta and American concepts
of liberty are, they remain distinct. Magna Carta is a charter of ancient liberties guaranteed
5 by a king to his subjects; the Constitution of the United States is the establishment of a
government by and for "We the People."

Magna Carta
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or
10 outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with
force against him, or send others to do so, except by the lawful judgement of his equals or by
the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.


15
(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know
the law of the realm and are minded to keep it well.

(49) We will at once return all hostages and charters delivered up to us by Englishmen as
20 security for peace or for loyal service.

(51) As soon as peace is restored, we will remove from the kingdom all the foreign
knights, bowmen, their attendants, and the mercenaries that have come to it, to its
harm, with horses and arms.
25
(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering
of our kingdom, and to allay the discord that has arisen between us and our barons, and since
we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give
and grant to the barons the following security:
30
It is clear that the above stated applies “forever”.
END QUOTE

Since then the US Supreme Court handed down its decision that the Magna Charta does apply
35 to the US Constitution.

Lets now consider what the High Court of Australia stated in;
Transcript of High Court Appeal

Essenberg v The Queen B55/1999 (22 June 2000)


40 IN THE HIGH COURT OF AUSTRALIA

Essenberg v The Queen B55/1999 (22 June 2000)


McHUGH J: But is not the problem you face that the Magna Carta and the Bill of
Rights of 1688 are not documents binding on Australian legislatures in the way the
45 Constitution is binding on those legislatures? Any legislature acting within the powers
allotted to it by the Constitution is entitled to legislate in total disregard of the Magna Carta
and the Bill of Rights, as is the United Kingdom Parliament. Take the situation in Northern
Ireland. They abolished trial by jury in Northern Ireland. If you go back to Magna Carta
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which, I suppose, is really the heart of your argument, it is really more a statement of
political ideals. They are not constitutional documents in the sense that the Australian
Constitution and the United States Constitution are.

5 Well, the US Supreme Court has (since the publication of my book on 30-9-2003) clearly ruled
that the Magna Charta is applicable to the US constitution.
Now, lets see what the Framers of the Constitution stated during the Constitution Convention
Debates;

10 HANSARD 8-2-1898 Constitution Convention Debates (Official Record of the Debates of


the National Australasian Convention)
Mr. OCONNOR.-The amendment will insure proper administration of the laws, and
afford their protection to every citizen.

Mr. SYMON.-That is insured already.


15 Mr. OCONNOR.-In what way?

Mr. SYMON.-Under the various state Constitutions.

Mr. OCONNOR.-Yes. We are now dealing with the prohibition against the
alteration of these Constitutions. We are dealing with a provision which will prevent
the alteration of these Constitutions in the direction of depriving any citizen of his life,
20 liberty, or property without due process of law. Because if this provision in the
Constitution is carried it will not be in the power of any state to pass a law to amend its
Constitution to do that. It is a declaration of liberty and freedom in our dealing with
citizens of the Commonwealth. Not only can there be no harm in placing it in the
Constitution, but it is also necessary for the protection of the liberty of everybody who
25 lives within the limits of any State.

Mr. SYMON.-Have we not that under-Magna Charta.

Mr. OCONNOR.-There is nothing that would prevent a repeal of Magna Charta by


any state if it chose to do so. Let us suppose that there were any particular class of
offences, or particular class of persons who, at any time, happened to be the subjects
30 of some wild impulse on the part of a majority of the community, and unjust laws
were passed-

Mr. SYMON.-Has anything ever happened that would Justify such a proposition?

Mr. OCONNOR.-Yes, they are matters of history in these colonies which it is not
necessary to refer to.

35 Mr. SYMON.-Would it not require an amendment of the Constitution to repeal Magna


Charta?

Mr. OCONNOR.-What Constitution?

Mr. SYMON.-This Constitution. Do you think Magna Charta would be repealed by


an Act of the Federal Parliament?
40 Mr. OCONNOR.-I do not think so, and I did not say so. But I say that, under the
Constitution of the states, as we are dealing with the Constitution, a State might enact
any laws which it thought fit, and even if those laws amounted to a repeal of Magna
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Charta they could be carried. I admit we are only dealing with a possibility, but at the
same time it is a possibility which if it eventuated, as it might, would be very
disastrous, and there is no reason why we should not prevent it.
[start page 684]

5 Mr. FRASER.-We might provide a safe-guard, at any rate.


HANSARD 1-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
Mr. GLYNN.-I am now speaking of the English law. It has been somewhat modified in
the Straits Settlements, and in one or two other parts of the empire, I believe, by giving a
10 right of action for tort in certain cases, but I do not think that this extended right of action
has ever been given in any of the colonies. Conditions justifying actions for damages
against the Crown, however, are almost as frequent as actions for breach of contract. In
Canada a man sued the Crown for damages received in connexion with a railway accident,
but he was debarred of remedy there, although he suffered serious injury, because of some
15 defect in the railway laws not conceding this right. The position has been laid down in
regard to the Queen in the case I have already mentioned, that-
Where the land, or goods, or money, of a subject have found their way into the possession
of the Crown, and the purpose of the petition is to obtain restitution, or if restitution cannot
be obtained, compensation in money; or when a claim arises out of a contract, as for goods
20 supplied to the Crown or to the public service-the Crown is bound to refer a petition of
right to the courts for decision, because it is provided by Magna Charta that justice
cannot be denied, sold, or delayed. By this action, similar rights of action are given to the
subject against the Crown in cases in which the subject can maintain a claim against
another subject.
25
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)

Mr. DEAKIN.-
30
. In this Constitution, although much is written much remains unwritten,
And
Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
35 liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
40 intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this new Magna Charta for their acceptance and confirmation, and I
45 can conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king.
This new charter is to be given by the people of Australia to themselves.
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Again;
the Crown is bound to refer a petition of right to the courts for decision, because it is
provided by Magna Charta that justice cannot be denied, sold, or delayed.
5
Therefore it must be clear that the Framers of the Constitution held that the Magna Charta
applied to the Constitution and it is not for the judges to then seek to amend the Constitution by
their own judgment to deny this to be applicable.

10 As much as the Magna Charta is applicable likewise so the Bill of Rights.

There is however another disturbing element to what the judges stated;

Essenberg v The Queen B55/1999 (22 June 2000)


15 IN THE HIGH COURT OF AUSTRALIA
GUMMOW J: Now these words, "for peace, order and good government" are words of
expansion, not contraction, you see - they are not words of limitation.
McHUGH J: They do not limit the powers. In fact they arguably have no legal effect
whatever, and that is the doctrine of this Court. We do not make a decision as to whether
20 the law is for the peace, for the order, for the good government. It is assumed that if
Parliament makes it, it is, and the real question is, is it a law with the same respect to trade
and commerce in other countries or whatever the relevant law of Parliament relies on, but
this Court has never attempted to say that a law, on the subject of trade and commerce,
for example, is not "for peace, order and good government". It is, in effect, a
25 parliamentary expression rather than a legal expression. It does not limit Parliament's
power; it is said to expand them.
MR ESSENBERG: I am not really sure I understand that.

Now lets see what the Framers of the Constitution stated, as set out more extensive in the
30 document “for the peace order and good government-1-Hansard.doc” in Chapter 034O

HANSARD 1-4-1891 Constitution Convention Debates (Official Record of the Debates of


the National Australasian Convention)
Sir SAMUEL GRIFFITH: I agree that these words appear rather startling. [start page
35 559] They are taken from the Federal Council Act of Australasia, and were inserted by
the imperial authorities after consideration and in substitution for more limited words that
were proposed by the Convention that met here in 1883. Finding those words there, and
considering that the powers of the federal parliament are only to make laws for the peace,
order, and good government of the commonwealth, it was thought perfectly safe to adopt
40 them.

Mr. BAKER: Do I understand that if a ship leaves one of the Australian colonies for
a British port, say London, having a British register, until she actually arrives in
Great Britain, the laws of the commonwealth are binding upon her, and not the laws
of Great Britain?

45 Sir SAMUEL GRIFFITH: No; but laws of the commonwealth, limited to laws for
the peace, order, and good government of the commonwealth, will apply to her on her
voyage. For instance, if it was necessary to send a prisoner to England, only such

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provisions as are essential for the laws of the commonwealth outside the 3-mile limit
could possibly apply.
And
Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
5 the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.

HANSARD 14-4-1897 Constitution Convention Debates (Official Record of the Debates of


the National Australasian Convention)
10 Mr. BARTON:
That was the Convention which had, I think, to be called in consequence of the New
Guinea affair. Sir Samuel went on:
Finding those words there, and considering that the powers of the Federal Parliament
are only to make laws for the peace, order, and good government of the
15 Commonwealth, it was thought perfectly safe to adopt them.
Sir Samuel Griffith's reply to that interjection was;

No; but laws of the Commonwealth, limited to laws for the peace, order, and good
government of the Commonwealth, will apply to her on her voyage. For instance, if it was
necessary to send a prisoner to England, only such provisions as are essential for the laws
20 of the Commonwealth outside the three-mile limit could possibly apply.
That is to say, that the laws of the Commonwealth in respect of the matter cannot possibly
affect any law of the Imperial Parliament with which they may be in conflict, but so far as
they are not in conflict they will be applicable to a ship on her voyage for the preservation
of those laws of the Commonwealth which it is necessary to have enforced.
25
HANSARD 22-9-1897 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
Amendment suggested by the House of Assembly of Tasmania:
Omit the words "for the peace, order, and good government of the commonwealth,
30 lines 3, 4, and 5."

The Hon. E. BARTON (New South Wales)[10.32]: This is an amendment which was
made in the legislature of Tasmania at the instance of the Hon. A.I. Clark. That gentleman
has furnished these reasons for the amendment, and, perhaps, in justice to him, I ought to
read them:

35 These words are copied from the several acts of the Imperial Parliament providing for the
establishment of legislatures in the various Australian colonies, and are perfectly
appropriate when used in reference to the establishment of the legislature which is to
possess plenary legislative powers, and have unlimited jurisdiction on all questions relating
to the protection of life and property, and the enforcement of contractual rights of every
40 kind; but it is very doubtful if they ought to find a place in connection with the definition
and delegation of limited legislative powers which do not include matters relating to the
daily protection of life and property, or to enforcement of private rights and obligations in
general. It is true that they find a place in the 91st section of the British North America Act,
which establishes a federal convention for Canada; but the primary object of that act is to
45 limit the powers and jurisdiction of the provincial legislatures, and to vest the residuum of
legislative authority in the Dominion of Canada in the federal parliament. The words in
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question may, therefore, fitly find a place in that act, and they were relied upon in the case
of "The Attorney-General of Canada versus the Attorney-General of Ontario, which was
decided by the Privy Council last year[L.R.A.C. 1896] to uphold the act of the Dominion
Parliament, which had been challenged on the ground that it had encroached upon the
5 domain of the provincial legislatures. That decision, in its effect, appears to me to be, an
argument against the insertion of the words in question in connection with the definition
and delegation of the legislative powers of the parliament of the commonwealth, because
they might, in some unforeseen and unexpected controversy, afford ground for an
argument in favour of the jurisdiction of the parliament of the commonwealth in matters
10 which the several states might claim to be wholly within their own legislative powers. It
cannot be contended that they are required for the purpose of giving the parliament of the
commonwealth full power to legislate with regard to all the subjects mentioned in the sub-
sections of section 52; and, if they are not required for that purpose, they must inevitably
encourage the contention that they are inserted [start page 1037] for some additional
15 purpose. But, if their insertion in not intended to add in any way to the powers of
parliament, in relation to the matters mentioned in the sub-sections of section 52, then they
violate the canon of drafting, which requires that no unnecessary words should be used in
giving expression to the intention of the legislature. They are very properly inserted in
section 53, because that section confers upon the parliament of the commonwealth plenary
20 and exclusive powers in regard to the several matters mentioned in the sub-section of that
section. But their presence in section 52 tends to create a resemblance in the scope of the
powers conferred by the two sections, whereas it would be much more desirable to make
the difference in the purport of each section as apparent and emphatic as possible.

I have read these reasons through very carefully, and I have been unable to discover
25 that any of the evils which my hon. and learned friend, Mr. Clark, fears may be
expected from leaving these words as they are. The powers are powers of legislation
for the peace, order, and good government of the commonwealth in respect of the
matters specified. No construction in the world could confer any powers beyond the
ambit of those specified.
30 The Hon. N.E. LEWIS (Tasmania)[10.35]: I should like to submit for the consideration of
the leader of the Convention the question whether the words which the legislature of
Tasmania have proposed to omit might not raise the question whether legislation of the
federal parliament was in every instance for the peace, order, and good government of
the commonwealth. Take, for instance, navigation laws. Might it not be contended that
35 certain navigation laws were not for the peace, order, and good government of the
commonwealth, and might there not be litigation upon the point? We are giving very full
powers to the parliament of the commonwealth, and might we not very well leave it to
them to decide whether their legislation was for the peace, order, and good
government of the commonwealth? Surely that is sufficient, without our saying
40 definitely that their legislation should be for the peace, order, and good government
of the commonwealth. I hope the leader of the Convention will give the matter full
consideration with a view to seeing whether these words are not surplusage, and whether,
therefore, they had better not be left out of the bill altogether.

The Hon. E. BARTON: The suggestion of the hon. member will be considered by the
45 Drafting Committee.
Amendment negatived.

Again;

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Surely that is sufficient, without our saying definitely that their legislation should be
for the peace, order, and good government

HANSARD 13x-1898 Constitution Convention Debates (Official Record of the Debates of


5 the National Australasian Convention)
Mr. ISAACS.-The Parliament has by clause 52 full power and authority to make
laws for the peace, order, and good government of the Commonwealth with respect to
a large number of matters that are set out. This is a power that is without limitation.

10 It should be understood that while it was stated


This is a power that is without limitation.
It is within the limits of being for for the peace, order, and good government!
As such as long as it is within the scope of “for the peace, order, and good government” the
legislative powers is unlimited.
15
HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)

Mr. DEAKIN.-
20
. In this Constitution, although much is written much remains unwritten,
And
Mr. DEAKIN.-
What a charter of liberty is embraced within this Bill-of political liberty and religious
25 liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
Mr. SYMON (South Australia).-I wish to say one word or two before we part. I do not
30 intend to enter into any detailed examination of, or any elaborate apology for, the
Constitution which we have been engaged in framing. But, sir, no man can remain
unmoved upon this momentous occasion. We who are assembled in this Convention are
about to commit to the people of Australia a new charter of union and liberty; we are
about to commit this new Magna Charta for their acceptance and confirmation, and I
35 can conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king.
This new charter is to be given by the people of Australia to themselves.

40 In my view judges such as Gummow J and McHugh J ought to have a retraining as to what is
constitutionally appropriate as I do not believe they have a clue what is applicable. Again, the
document “for the peace order and good government-1-Hansard.doc” has extensively set out
how it was being used, including some opposition and a submission from Tasmania to have it
taken out as there should be an unlimited power, but it was made clear, that unlimited power
45 would exist within the confines of laws being for the “order, peace and good government” and
in the end this was retained in the Constitution! I for one wonder how on earth judges of the
High Court of Australia do not comprehend this!

I cannot find any excuse whatsoever that judges of the High Court of Australia would divert
50 totally from the legal principles that are embedded in the Constitution.
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END QUOTE Chapter
* Do you view that it is , so to say, no longer the GUARDIAN OF THE CONSTITUTION?

**#** In my view it has lost the plot. We are in a really bad situation, as while Section 64 of the
5 Constitution permits the Governor-General to appoint anyone (even not a Member of Parliament,
for up to three months) to be a Minister of State the Framers of the Constitution intended that
only Members of the House of Representatives would be permanent Ministers of State. There is a
clear conflict of interest when a Senator representing State interest instead represents the
Government of the Day. And we saw this with what I consider the infamous phone call by
10 Senator Boswell conceding to John Howard control of the Senate saying “Prime Minister you
have control of the Senate”. I view no one could more be a traitor to the Constitution in that
regard as he did. By it destroying the very constitutional set up to have one House representing
the states and one representing the Commonwealth as whole. In my view, there is a conflict of
interest for any Senator to be a Minister of State. And, I view the government by this using it
15 numbers to deny many Members of parliament a copy of the Bill before the House to be voted
upon, and also allowing them sufficient time to consider and debate the issue is no less then
TERRORISM, and the High Court of Australia despite of this having shown not to have
considered this in its judgment completely failed to be a true GUARDIAN OF THE
CONSTITUTION. In my view it merely RUBBERSTAMPS what the Federal Government
20 desires under the pretext of considering the matter before the Court, it became as much part of
this crime of TERRORISM as any other criminal does where perhaps not pulling the trigger in a
hold-up nevertheless is an accomplish by driving the get away car or cause the criminal to elude
the police by harbouring the criminal. In my view, we should have specialist judges who only
deal with constitutional issues in the High Court of Australia, as in my view the High Court of
25 Australia simply is not up to the task to appropriately deal with constitutional issues in its current
set up. For this also the urgent need for the creation of an OFFICE OF THE GUARDIAN, as I
for one cannot see how the High Court of Australia otherwise will ever be competent to fulfil its
task to be a GUARDIAN OF THE CONSTITUTION, where it proved already not able to do
so!
30
* Are you aware I asked just one question and you respond with about 7 pages answer! And it
wasn’t even fully about it all such as ULTRA VIRES, as I understood this Chapter was going to
be about!

35 **#** Well it was regarding many issues but there is more, why not then go to the next Chapter,
shall we?
END QUOTE Chapter 007A The Great Deception
.
QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
40 Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
* Gary, what is your view about McHugh’s statement ?

**#** INSPECTOR-RIKATI®, how can anyone put the Court in disrepute when you have
such idiotic statement of a judge. Well, I have put my bit on the Internet about it.
45 In my view considering that statement the parliament should have moved to have him removed
from the bench as soon as he made that statement.
If this is the kind of mentality and intelligence that we can expect from judges of the High Court
of Australia then I think we might as well appoint one of my grandchildren to the bench and at
least they be rather playing with toys and crayons and say nothing sensible then the utter rubbish
50 that we now had. And this kind of intelligence, or the lack thereof, is used to deal with
constitutional matters, no wonder wee are going downhill!
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index.php?act=findpost&pid=617635index.php?act=findpost&pid=617635
QUOTE 070520 posting
I am very disturbed to find the following of a quotation to have found this discussion;
5
QUOTE
McHUGH J: I understand that and persons who have not had full legal training often think
of Magna Carta and the Bill of Rights as fundamental documents which control
governments, but they do not.
10 END QUOTE

QUOTE
But Parliament - some people would regard it as regrettable - can, in effect, do what it
likes. As it is said, some authorities could legislate to have every blue-eyed baby killed
15 if it wanted to.
END QUOTE

As a "constitutionalist" (not some lawyer who is brainwashed) I condemn any one, in


particularly judges, to undermine the constitutional system that exist in the POLITICAL
20 UNION BEING THE Commonwealth of Australia.

The Commonwealth of Australia, as like the European Union, is created by Statue and
itself has no common law. Hence, any jury that were to be involved in federal hearings
must be drawn from a State.
25
As author of the INSPECTOR-RIKATI® books in regard of constitutional and other
matters I have set out extensively how I succeeded and defeated Federal Government
lawyers after a 5-year legal battle on all constitutional issues I raised!

30 The Commonwealth of Australia Constitution Act 1900 (UK) was an act to create a
"APOLITICAL UNION" and the States who partly federated retaining all legislative
powers regarding "CIVIL RIGHTS" as it was their constitutions that were based upon the
provisions of the Magna Carta, Bill of Rights, Habeas corpus, etc.

35 In the Commonwealth of Australia, judges are appointed to the High Court of Australia
regardless lacking any competence in constitutional matters, in fact they may never have
practiced in constitutional matters, and in one incident a judge actually refused to hand
down a judgment other then to state he didn't have any knowledge in the constitutional
matter before the court and for this would abstain from handing down a judgment.
40
You find it as a matter of record that where the Governor-General was Defendant in a case
before the High Court of Australia then all 7 judges subsequently fraternised with the
governor-General, and no one has to be surprised the Court subsequently refused to allow
the case to be heard upon its MERITS.
45
In the Commonwealth of Australia judges are purportedly appointed by the Governor-
General but he merely appoints those who the Government provides to be appointed. Hence
a political stacking occurs.

50 The High Court of Australia in 1996 using their powers as a "persona designata" to make
decisions for the parliament, approved of the entire constitution to be replaced by the
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Australia act 1986 (forget about it being constitutionally valid) so that there no longer is a
"constitutional Parliament" but the parliament now is above the constitution. As it now
legislated the (purported) constitution.

5 But, I successfully challenged this validity of this De Facto Constitution in Court.

Having myself served in the NATO at the then IRON CURAIN having been trained as a
sharpshooter, I personally deplore the usage of weapons, as I am trained to use it to kill.
However, I recognise the right of others to bear arms, for defending their rights, and even
10 the Framers of the Constitution (Australia) indicated that militia could be drawn from
civilians of a State after the federation was created. This to me implied that the
commonwealth of Australia would have been able to enlist armed civilians to serve at that
time to protect the shores of the Commonwealth of Australia until it could set up its own
defence force.
15
There are always terrible incidents involving firearms that stand out. Likewise there are
also terrible incidents where motor vehicles are standing out in having resulted to mass
killings.

20 Personally, I would prefer not a single person to have a firearm, but then I have to
recognise that others may desire that everyone should have a weapon to defend
himself/herself.

My wife, opposed me to even fit a knife sharpers on the kitchen wall, but wanted me to
25 hide it in a pantry, as she fears that someone might come in the residence and see the knives
and use it wrongly.

Surely, we are not going to ban all knives in the world?

30 When anyone desires to exercise a right then the person must also accept there are
obligations.

Hence regulations as to the storage, handling and usage of a firearm should be deemed to
be appropriate where it provides for what is locally required.
35
Therefore, while a person may have the right to own a firearm, the Parliament rightfully
could legislate to have the usage, carrying, etc made subject to conditions.

Where there is a constitutional right, implied or otherwise, that a person may bear arms to
40 defend himself then I view one cannot limit the usage of a weapon to be some small
handgun, a tank, or a warplane, as depending what your personal conditions are you may
need one or another, without having any intention to use it against other civilians.

The Supreme Court (USA) has extensively decided cases regarding infringements of
45 RELIGION and I for one admire the Courts numerous judgments I read. If the same kind of
logic was used regarding the right to bear arms, then I view likewise both parliamentarians
and civilians should accept this kind of reasoning.

I for one do not desire to use a weapon, do not like them being used, but that are my
50 personal views, and I recognise others have total opposite views. They have their right on
their opinion as much as I have and as such I view that the concentration should not be as to
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how to make inroads to the rights of others, but rather how can we facilitate the rights of
others without that our own rights (including that of personal safety, as not to be held up by
some crazy gunman) jeopardised needlessly.

5 In particular those of the law enforcement who are risking their lives daily to protect
innocent citizens of harm they must not unduly be jeopardised in their law enforcement
positions because inappropriate regulations allow anyone to obtain a weapon.

While many people argue about the right of freedom of religion, the right to bear arms, few
10 do actually concentrate on the issue of right of freedom of travel, even so this likewise was
protected by old English law.

Not to many people argue that their right to travel is denied where they must first have a
driving licence to drive a motor vehicle, where as no kind of driving licence existed to drive
15 a cart-and-wagon. As such, somehow we have accepted inroads to our guaranteed freedoms
because society allowed for this where as in regard of weapons we may have different
positions pending the local society we reside in.

In my view, the right to legislate that a person should not be allowed to bear arms cannot be
20 justified on a court decision, as if the freedom to bear arms is guaranteed then I view not a
court in the land could possible make an order contrary to it.

We therefore may have to look at the constitutional framework as to what was existing at
the time each constitution was created and if the conditions then existed that a Court could
25 actually have denied a person to bear arms. If in history it can be shown that certain persons
were denied by the local authorities to bear arms, then it must be accepted that the
Constitution albeit if it provides for the right to bear arms then was created upon the
understanding that such implied freedom was at all times deemed to be subject to court
judicial decisions and or legislative powers.
30
As a "constitutionalist" I find it laughable how judges, despite their extensive legal training,
can come up with such utter and sheer nonsense such as McHugh J did with his statement ;

QUOTE
35
But Parliament - some people would regard it as regrettable - can, in effect, do what it likes.
As it is said, some authorities could legislate to have every blue-eyed baby killed if it
wanted to.
END QUOTE
40
As no such constitutional system operates that would allow the parliament to enact such
laws.

And there I have to come back upon the other quotation;


45
QUOTE
McHUGH J: I understand that and persons who have not had full legal training often think
of Magna Carta and the Bill of Rights as fundamental documents which control
governments, but they do not.
50 END QUOTE

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Lawyers are being trained in legal studies by other lawyers and as such are brainwashed far
to often that some LEGAL FICTION is FLEGAL REALITY>

As I exposed in my book published on 30 September 2003


5
INSPECTOR-RIKATI® on CITIZENSHIP

A book on CD about Australians unduly harmed.

10 ISBN 0-9580569-6-X (prior to 1-1-2007) ISBN 978-0-9580569-6-0

There is no constitutional powers for the Commonwealth of Australia to define/declare


"citizenship" as Australians are constitutionally "subjects of the British Crown".
Citizenship is a "POLITICAL POSITION" of rights, including franchise, and has
15 absolutely nothing to do with "nationality" yet the High Court of Australia goes on as if it is
a nationality.

In court, on 19 July 2006, I defeated the Federal Government lawyers also on this matter.

20 Hence, having has a legal study and having obtained law degrees in itself will not prove
you are not brainwashed by LEGAL FICTION but more then likely you are.

Hence, the work as a constitutionalist is to expose this.

25 Only when we are dealing with LEGAL REALITY and have appropriately explored the
constitutional basis upon which constitutional rights, implied or otherwise, were provided
for in the constitution can we commence to address the issues such as the right to bear
arms, etc.

30 And to make clear, no Parliament in the Commonwealth of Australia has any legislative
powers to allow the killing of blue-eyed babies or for such kind of nonsense, as none of the
State constitutions could allow for such legislative nonsense as they are all bound to make
laws for "the peace, order, and good government", even so judges likewise fails to
recognise this constitutional limitation.
35
As the Framers of the Constitution (Australia) made clear the Constitution was the "new
Magna Carta".
END QUOTE 070520 posting

40 The danger is that if some fanatical religion were to come to power in Australia it could in fact
rely upon these and other stupid and irresponsible statements of the High Court of Australia and
turn this Commonwealth of Australia into some murderous regime, to pursue “ethnic cleansing”
and fund their religious schools at taxpayers expenses. Whatever may suit to today for the so-
called Judeo-Christians may tomorrow suit a other fanatical religion to achieve precisely the
45 opposite! This is what we should keep in mind, and why the Framers of the Constitution so much
sought to prevent this kind of religious war to exist in the Commonwealth of Australia.
END QUOTE Chapter 000D HAVE EVERY BLUE-EYED BABY KILLED
.
We therefore find that contrary to what the High Court of Australia may purport the
50 Commonwealth of Australia is bound to deal with legislation within “for peace, order and good

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government” and not beyond it. As the Framers of the Constitution made clear not even the
High Court of Australia was above the constitution!
.
QUOTE Thomas Jefferson:
5 "The germ of destruction of our nation is in the power of the judiciary, an
irresponsible body - working like gravity by night and by day, gaining a little
today and a little tomorrow, and advancing its noiseless step like a thief over
the field of jurisdiction, until all shall render powerless the checks of one
branch over the other and will become as venal and oppressive as the
10 government from which we separated.".
END QUOTE
.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
15 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
20 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
25 has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
END QUOTE
.
QUOTE Chapter 383-Whole of the Commonwealth.
30 Chapter 383-Whole of the Commonwealth.
.
* Gerrit, is this about limitations for the Federal Parliament?
.
**#** INSPECTOR-RIKATI®, indeed it is. They are limited to legislate that applies to the
35 whole of the Commonwealth. The Section 101 Inter-State Commission only can divert from it.
.
WHOLE OF THE COMMONWEALTH

HANSARD 31-3-1891 Constitution Convention Debates


40 Sir SAMUEL GRIFFITH:
One of them is to deal with the affairs of people of any race with respect to whom it is
deemed necessary to make special laws not applicable to the general community; but so
that this power shall not extend to authorise legislation with respect to the aboriginal
native race in Australia and the Maori race in New Zealand.
45 I am sorry that my late colleague and co-delegate for Queensland, Mr. Macrossan, is not
here to express his opinion on that proposal. I am satisfied, notwithstanding that during all
his political career he was a representative of northern constituencies in Queensland-
constituencies where the question of black labour was a burning one-that he would have
most cordially supported the proposal, and would have insisted upon the necessity of that
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power being given to the legislature of the commonwealth of Australia, and not to the
legislature of any particular state, because the introduction of an alien race in considerable
numbers into any part of the commonwealth is a danger to the whole of the
commonwealth, and upon that matter the commonwealth should speak, and the
5 commonwealth alone.

Mr. DONALDSON: Mr. Macrossan expressed himself to that effect!

HANSARD 17-4-1891 Constitution Convention Debates


Mr. ISAACS:
10 I understand that it is intended to have uniformity of legislation in banking matters
throughout the whole of the Commonwealth, that financial institutions shall know
exactly what laws they have to comply with, and that the laws shall apply equally over the
various parts of the Commonwealth.

15 HANSARD 21-9-1897 Constitution Convention Debates


The Right Hon. Sir E. BRADDON: How does the hon. gentleman propose to detach the
members of the federal parliament from the interests of their local parliaments?

The Hon. I.A. ISAACS: Will a candidate tell his electors that he is going to regard the
interests of the whole of the commonwealth as much as he will regard theirs?

20 The Hon. J.H. GORDON; No; but he will not be in the federal parliament to advocate
local interests and considerations. He will, of course, have a natural leaning towards his
own state; but members of the federal parliament should be detached as much as possible
from local interests, and not be directly involved in their advocacy, which would be the
result if we had ministers and great party leaders in the federal parliament. The argument
25 that this matter should be left to the federal parliament, I have, I think, disposed of, and the
argument that it should be left to the electors is, in my opinion, an unsound one. A member
of a local parliament in seeking election to the federal parliament would have the
advantage of political machinery behind him; be would have the advantages given to him
by his position, and he would have a considerable start over ran ordinary candidate. The
30 argument of the hon. member, Sir John Downer, has in it a spice of egotism which, while
justified in his own case, I think the most modest of us will do well not to adopt. He says,
in effect, "We are the people of light and leading. Take away the members of the state
parliament and you have nothing left but I dust and ashes.'" I differ from that view. There
are as good fish in the sea as ever came out of it. I am bold enough to say that if we wiped
35 out the whole of this Convention, Australia might suffer; but it would still roll on in its
proper place in the Cosmos. There is really nothing in the argument that the states cannot
get along-to use some hon. member's phrase-without their men of light and leading. I do
not know that we constitute the whole of the ranks of the elect. A system of plurality will
taint federal politics with local interests beyond the point at which they should be
40 influenced in that way. It will create monopolists of those who are at present in politics,
and it will restrict the opportunities of those who are not.

HANSARD 27-1-1898 Constitution Convention Debates


45 Mr. OCONNOR.-The right honorable member, with all respect, is begging the question.
The real question now is, not whether the people want it, but whether the power should be
given to the Commonwealth, that is to say, the whole of the Commonwealth, to enforce the
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compulsory reference of disputes in one particular state. If this power to legislate is given
at all, the next step in legislation must be, if it is to be effective, to grant compulsory
powers, and you have to regard this matter as if the power was to be exercised in that way.
Honorable members cannot deny that it can be exercised in that way, and the probabilities
5 are that it will be exercised in that way.
And
Sir EDWARD BRADDON (Tasmania).-As one who voted in Adelaide on this subject,
and as one who believes to the fullest possible extent in the value of boards of conciliation
and arbitration, if such boards and courts can be arranged, I desire to justify in some
10 measure my giving the same vote as I gave then. This amendment does not hand over to
the federal power the entire dealing with industrial disputes over the whole of the
Commonwealth, but only over so much of the Commonwealth as may be affected by
those disputes. It therefore imposes upon the various states the necessity for having courts
of conciliation and arbitration to deal with the matters affecting their states only. That
15 seems to me to be an admission of the principles principle which I think must be admitted
in the present circumstances-that anything whatever in the nature of government or
administration which can be better dealt with by a state than by the Commonwealth shall
be left to the state.

20 HANSARD 31-1-1898 Constitution Convention Debates


Mr. ISAACS (Victoria).-I strongly support the view expressed by Mr. Glynn, and
although I ventured to interject when the honorable member (Mr. O'Connor) was speaking,
I quite grant that the Governor-General must nominate his Executive to bring the
Parliament into existence. But to intrust an Executive that has never been appointed by the
25 people-selected we do not know on whose advice or by what means-with the power of
Constituting our Supreme Court-perhaps the most important appointments in the whole of
the Commonwealth-would be subversive of everything we have been led to expect. The
people would be very much astonished and grieved if we gave them a Constitution under
which it could be supposed for a moment that the Judges of the Supreme Court were to be
30 appointed by some power independent of and anterior to Parliament. Under such a law the
people would have not a single word to say in the selection of the Supreme Court.
What confidence would they have in such a court? I hope that such a proposal will not
be made, and that the feeling of the Convention will be seen to be utterly against the
adoption of such a proposal. A serious blow would be stuck at the confidence of the
35 people in the Constitution if we were not to frame our Constitution by adhering to the
principles of responsible Government as we know them.

Mr. FRASER (Victoria).-As a lay member, may I be allowed to say a word or two? I
would support the honorable members (Mr. Barton's) view. The Constitution would be
somewhat lop-sided at the start unless the Judiciary were appointed; but I would suggest to
40 the honorable member (Mr. Barton) that he should subject the appointments to the
confirmation of Parliament.

Mr. OCONNOR.-That would be so necessarily. They could not draw any salary until an
Act was passed.
Mr. FRASER.-But that would get over the objection freely uttered that very bad
45 appointments might be made. Therefore, if the appointments that might be made were
subject to the approval of Parliament or the Executive of Parliament, that objection would
not hold good.

Mr. HIGGINS.-And they could not act in the meantime until Parliament met.
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Mr. FRASER.-Yes, give them the power to do so.

Mr. REID.-Once appointed, by whomsoever appointed, the offices would be for life,
subject to good behaviour. No Parliament in the world could move them except for cause.

Mr. FRASER.-That could be easily altered, so as to make the appointments subject to


5 the approval of Parliament.

Mr. REID.-No, that would make them political officers.

Mr. FRASER.-You are going to make them political officers in another direction,
because the Executive of the Parliament will appoint them.

An HONORABLE MEMBER.-We do not want that.


10 Mr. FRASER.-How are you going to work the Constitution for the first few months?

Mr. ISAACS.-Just as they did in the United States and Canada.

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

Mr. REID.-The honorable member is evidently a layman.


[start page 306]
20 Mr. FRASER.-I know the feeling of the lay public, and I know they will rather submit to
an injustice, or arrive at some settlement, than submit to the law, which is so costly and
uncertain.

HANSARD 2-2-1898 Constitution Convention Debates


25 Mr. BARTON.-It means more, because it gives you everything that sub-section (31)
gives you, except the use of the waters, and it secures you a great deal more in the way of
navigation, because it takes the navigatory power over the whole of the Commonwealth.
Mr. SOLOMON.-A very wide meaning may be given to sub section (1), but almost all
the legal gentlemen of the Convention-perhaps I was wrong in saying all-have argued right
30 through that subsection (1), which in very broad language gives power to the Federal
Parliament for the regulation of trade and commerce with other countries and among the
other states, covers the ground in reference to rivers. Very few of those honorable members
have taken that ground until the last few days. It has been their refuge after every other
argument has failed. Take this particular sub-section, which may be interpreted in the
35 future by the Federal Judiciary, which, we hope, will have to interpret the
Constitution we are now framing, as covering everything and giving full rights
between the states, in such a way as to equitably deal with all the states in regard to their
commerce and the navigation of their rivers-there is hardly a member of the Convention
who will not admit that there is a very strong element of doubt as to whether sub-section
40 (1) will ever be interpreted by the Federal Judiciary in such a way as to conserve the
interests of South Australia.

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HANSARD 10-2-1898 Constitution Convention Debates
Sir GEORGE TURNER.-
. We know that, in the past, the giving of bounties in the different colonies has had the
result of establishing a profitable trade with the old country, and we know that it will be
5 very difficult to persuade the Federal Parliament to grant these bounties, which must be
uniform throughout the whole of the Commonwealth.

HANSARD 8-3-1898 Constitution Convention Debates


Mr. ISAACS (Victoria).-
10 That the Senate shall have the full power under the Constitution to decline to consider any
measure, and shall have the warrant of the very words of the Constitution in declining to
consider measures that do not comply with the provisions of the Constitution.
END QUOTE Chapter 383-Whole of the Commonwealth.
.
15 Being it banking, taxation, or other matters the Commonwealth of Australia can only
legislate as to the “whole” of the Commonwealth and not exclude any part of it. However,
as the Framers of the Constitution recognised that at times there may be a need to stray
from this for State interest it decided that s.101 Inter-State Commission could do so in
regard of trade and commerce. We find however that government for pork barrelling purposes
20 circumvent s.101 Inter-State commission provisions. It is unconstitutional but who is having the
monies to stand up against this rot? Certainly the ordinary tax payers do not have this funding
and hence the need for an OFFICE OF THE GUARDIAN.
.
QUOTE Chapter 002 OFFICE OF THE GUARDIAN
25 Chapter 002 OFFICE OF THE GUARDIAN

* Gary, would you mind explained OFFICE OF THE GUARDIAN? What you seek to
achieve with its creation?

30 **#** INSPECTOR-RIKATI®, the OFFICE OF THE GUARDIAN, would be a


constitutional council, to advise the Government, the People, the Parliament and the Courts.

* Are you meaning we need to have an amendment of the Constitution for this?

35 **#** Not at all. It is not going to interfere with out current judicial system, rather would
aid it. It would not interfere with the legislative powers of the Commonwealth of Australia,
rather aid it. It would not interfere with the executive powers of a Government of the Day
but rather Aid it!

40 * If it is to aid it all then why was it not created long ago?

**#** Because no one realized how cancerous the Commonwealth of Australia was, and
indeed so also the States. Just consider you counting money 20 cents and twenty cents
being totally 50 cents. You make an error in counting but time and again you repeat the
45 same error. Yet, if you were to add a coin of say 10 cent and then start counting with the
ten cent then you realize you are ending up with the same amount only an added coin.
People are at times repeating errors without realising they are making the same error time
and again. This is in particular so with how the Constitution applies.

50 Judges who are sitting in judgment at the High Court of Australia ought to have been
appropriately trained in certain constitutional matters before it handed down judgments.
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Indeed, I view no judge should be appointed to the High Court of Australia

* How would an OFFICE OF THE GUARDIAN address such issues?

5 **#** Firstly, you need to work out the formation of an OFFICE OF THE GUARDIAN.
My proposal would be that from each State one would have three representatives. One of
which is to be a lawyer. The two others should be elected by ballot, in the same manner as
they do for Jury service.

10 Why have two non lawyers from each of the States?

What we need is “common sense” and the so called “commoner” is the best to provide it.
Lawyers can contribute their views, but as I have already made clear they are being
brainwashed at legal studies, etc, and so while they are needed on the other hand are a
15 danger.
I used to sit in when lawyers were talking to their clients. For example this man made an
agreement with his lawyer when I pulled both up about the agreement and explained they
really never had a meeting of the minds, so to say. I explained then to the lawyer what he
understood the agreement was about, and he fully agreed to this. I then explained to the
20 client what I understood he had agreed to and he too explained this was so. By this, I was
able to show that both were talking about a total different kind of perception of agreement!
This is often why clients and lawyers end up in a tug of war, both claiming to have acted
according to the agreement while accusations flies about breach of the agreement.
The lawyer talks in a jargon he understands as such while the client has a different
25 understanding of the jargon used.
Lets try to take an example of minor nature.
The lawyer may state that the client must “guarantee” the cost will be paid. The Client then
agrees with this. The lawyer having explained previously that the cost could be $15,000.00
plus then takes it that the client therefore will have guaranteed the cost of whatever the
30 litigation is going to be and so by a formal guarantee, say, the property the client owns. The
client however may perceive that his personal agreement to pay the bill of $15,000.00 plus
likely means about $15,000.00 and not, say, $30,000.00 or so and knowing that his
property is under heavy mortgage that does not allow it to be used as collateral may have
the view that his personal agreement is on the basis of his financial position. Later in a
35 dispute each party will claim his/her version of perception!
The client who perhaps lost his job in the meantime and /or his marriage having the house
being sold not even covering the mortgage may take the position that it was beyond his
powers to do otherwise and so the debt claimed by the lawyer no longer is realistic top be
held applicable.
40 I have come across incidents like that and so know from real life people have this
perception.

Another problem arises where people were funded by legal AID, many a woman afterwards
sought my assistance that LEGAL AID COMMISSION had taken such large slice out of
45 the sale of the property where they understood that they didn’t need to have to pay back any
monies. As some made clear, they thought it was for free and had they known that they had
to pay back the monies they would never have protracted the litigation ongoing.
So, there are clearly misconceptions between clients and their lawyers.
Indeed, lawyers letting a client wait in the waiting room while they are still attending to
50 their client, and then in the end telling their client to come back the next day, but
unbeknown to the client the lawyer may still put a charge to LEGAL AID COMMISSION
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for the hour of consultation with the client, even so nothing occurred. The client may never
know about this kind of fraudulent charging, in particularly not where LEGAL AID
COMMISSION does not ensure a client must sign for any cost claimed in regard of any
consultations/visits, as to time of commencement and time of the client leaving. So, there
5 then is a lot of problems existing already.
What we need therefore is to get some proper regulated system that at least will seek to
avoid numerous problems to occur when it comes to errors. Sure, the Constitution does not
deal with LEGAL AID COMMISSIONS kind of payments, but the Federal Executive also
abuses its powers greatly and acts unconstitutionally and illegally.
10
With an OFFICE OF THE GUARDIAN having non-lawyers it means that they can
contribute their perceptions as to what they perceive they understand of certain meanings of
statement made by the framers of the Constitution. A lawyer might be preoccupied with his
legal studies knowledge and therefore never perceive what is written as he, like the
15 counting of coins, will continue to make the same error. What we therefore would require
to have is a board that is having a diversion of people with different perceptions and
together can contribute to come to a conclusion. Then by ballot they elect who will be in
charge for a year period as the GUARDIAN. It must be clear it does not need to have to be
a lawyer. What is essential is that anyone who joins this “board” can only do so for a
20 period of three years, and every year one member of each State is replaced. That way, you
will have an ongoing rotation and avoid political bias becoming the norm. The task of the
Members of the board of the OFFICE OF THE GUARDIAN would be to work out what
relevant meanings are of constitutional provisions, consulting also the statements made by
the Framers of the Constitution. As such, their conclusion would be what they consider to
25 be appropriate to the relevant material available.

So now take it that you approach the OFFICE OF THE GUARDIAN and explain to them
that you are in the midst of litigation and you like to get in your hands all relevant material
relating this constitutional issue. The OFFICE OF THE GUARDIAN, without charge,
30 would then provide whatever they have on the subject.
Now you go home and you go through the lot and you hold that the conclusion the
OFFICE OF THE GUARDIAN gave in the material is either partly or whole incorrect.
You then approach the OFFICE OF THE GUARDIAN and explain what you dispute, if
any, and set out your views.
35 The board of the OFFICE OF THE GUARDIAN then reconsiders what it had and the
comments made and then seek to come up with what it deems to be appropriate. It could be
they rejects the issues raised as not being correct or otherwise. They can amend their
statement with partly or wholly accepting what was commented by the person.
It must be stated that the material provided is for informative purposes only!
40 Now, say there is a person who contacts the OFFICE OF THE GUARDIAN and
complaints that the government (or one of its Department) may be acting unconstitutionally
in its conduct.
The OFFICE OF THE GUARDIAN may agree or disagree with the complainant.
If it takes the view there might be a case, it can then in its own right place the matter before
45 the High Court of Australia seeking its judicial determination in the matter.

The High Court of Australia in the first place will be provided by the OFFICE OF THE
GUARDIAN with all relevant details it has on record on the issue before the Court. Judges
can nevertheless do their own investigation/research (by their staff or otherwise) and may
50 or may not agree with the OFFICE OF THE GUARDIAN The complainant can join in
the litigation in his/her own right as to be able to present his/her own views. If the High
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Court of Australia in the end agrees with the OFFICE OF THE GUARDIAN then it can
issue relevant orders to prohibit the Government Department to act contrary to
constitutional provisions, etc.
The complainant can in his/her own right litigate and present his/her own case regardless if
5 the OFFICE OF THE GUARDIAN does not commence any litigation, because it might
rightly or wrongly have the view that there is no issue.

If the Court makes a judgment then the OFFICE OF THE GUARDIAN has to update its
material to include the judgment as to ensure that any person who were to seek information
10 has the moist updated details. It would not make the details available binding, as anyone
can still challenge this and have, so to say, overturned a previous decision, but principle is
that anyone can obtain the same information regarding the subject from the OFFICE OF
THE GUARDIAN.

15 The benefit would also be that a poor person who cannot litigate because of lack of funds
can still pursue legal redress if the OFFICE OF THE GUARDIAN happens to get
involved in its own right, and the OFFICE OF THE GUARDIAN happens to get
involved, in its own right as a GUARDIAN of the Constitution and succeed. This, as then
the poor person will have an legal precedent upon which he/she can base a case!
20
A government seeking certain legislation to be put in place could consult the OFFICE OF
THE GUARDIAN about what it knows about constitutional powers and their limitations,
this as to get a general knowledge.
Likewise, Members of the Parliament who lack proper understanding of legal complexity
25 may desire to have a source of information that is without bias provided to see if a certain
bill is to be deemed appropriate and permissible within constitutional powers and
limitations or not.

The Courts themselves are not bound to accept what the OFFICE OF THE GUARDIAN
30 provides on information but will have far more reliable material to use then having some ad
hoc researcher doing it in a hurry and by this overlooking real issues related to it.
The aim therefore is to make a most flexible system of a source of information available to
whomever in the same updated manner. Judges dealing with constitutional issues, apart of
any personal research may call upon the OFFICE OF THE GUARDIAN as to be able to
35 make a fully informed decision on a certain constitutional issue.

* Gary, can I put in a word?

**#** Of course you can!


40
* Is this meaning that the OFFICE OF THE GUARDIAN really is an advisory body?

**#** Correct. But, it also has the right to pursue litigation in its own right to place before
the High Court of Australia material and seeking a ruling upon it by the Court.
45
* Is that meaning I can ask the OFFICE OF THE GUARDIAN to sue on my behalf?

**#** No, that is not the function of the OFFICE OF THE GUARDIAN. Its concern is
only to present updated information and to pursue that breaches against the Constitution
50 are dealt with appropriately.

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Obviously, by this the OFFICE OF THE GUARDIAN could also indicate the legal
issues, as it deems applicable, such as in my case could have warned the Australian
Electoral Commission that the Framers intended that once a person made a constitutional
based objection against a proclamation/writs/legislative provision then this would be
5 ULTRA VIRES from creation until and unless the High Court of Australia declared it to
be INTRA VIRES.
I have no doubt that had this kind of information been available to the Australian Electoral
Commission it more then likely would not have obstructed my applications to be heard as it
would have realized that in its own interest to conduct lawful elections it needed such a
10 declaration. What happened however is that neither the Australian Electoral Commission,
its lawyers and the judges or for that matter the politicians realized that by their deliberate
railroading my applications they in fact prevented a lawful election to be held.
This is why it is so badly needed that appropriate information is available when needed by
anyone regardless of if they are in government, if they are a member of the “general
15 community”, if they are Members of Parliament, or if they are judicial officers.

* As I understand it then you do not mean that the OFFICE OF THE GUARDIAN
dictates what is applicable but more is a source of information giving details as to how
matters could be applicable pending a decision of the High Court of Australia?
20
**#** That is a proper manner to state this.

* And, I further understand that the OFFICE OF THE GUARDIAN in its own right could
take the matter to the High Court of Australia to seek clarification of a matter against the
25 Federal Government or the parliament or even seek leave to intervene in legal proceedings
if it believes there is a constitutional issue to be litigated about as to ensure that the
constitutional provisions remain appropriately applied with or being followed?

**#** That is excellent. You are really getting the gist of it, so to say..
30
* How much would it cost to obtain the information?

**#** As I made earlier known it must be provided FREE OF CHARGE to anyone. This,
so that even the poor people have this information available to them! For example, a copy
35 of the Constitution should be provided for free to every primary school student and indeed
anyone who ask for a copy. This, as it is essential anyone has access to this information!

We have issues such as toxic waste, Industrial Relations, and numerous other matters and
few people ever even have seen the Constitution let alone read it to have any understanding
40 what it is about. Yet, for a document that spills out the basic powers and limitations of the
POLITICAL UNION called Commonwealth of Australia it is sheer and utter nonsense
that the Constitution is not more readily given out. This is also why people are confused
about their rights and so likewise what possibly could be applicable. Then again I must
admit that even if they had copies of the Constitution they may still not be able to
45 understand the precise operation unless they also had access to other relevant details. This
is where the OFFICE OF THE GUARDIAN comes into place. It then could advise
anyone seeking information as to the background creating a particular section of the
Constitution, what was debated about it, what judicial decisions were made in regard of it,
etc. Then, judges of the High Court of Australia do not just need to rely upon their own
50 researches who may or may not be able to locate the correct version of development of
certain constitutional provisions and so have a more comprehensive information at hand to
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make a judgment. The High Court of Australia is not a true GUARDIAN of the
Constitution at all, as it has no constitutional power to commence on its own motion to
litigate constitutional matters where it deems there is a constitutional issue existing to be
litigated. Indeed, it even prevents constitutional issues to be litigated as was discovered in
5 my cases. For example, the High Court of Australia did not and cannot advise Members of
Parliament that instead of waiting for a Bill (proposed law) being passed by the Parliament
and enacted before they can commence litigation they can in fact as a Member of
Parliament challenge the constitutional validity in the House they having a seat (of
Parliament) and then the Speaker of the House of Representatives and/or the President of
10 the Senate cannot allow the bill to proceed without first seeking to establish the
constitutional validity of the law proposed to be introduced in the Parliament for reading
and/or voting. It means that instead waiting for the damages to be done with having
unconstitutional legislation invoked, it is stopped in its tracks, so to say, at introduction into
the Parliament.
15 In any event, look at the new purported IR laws amendments. They are not laws at all as
they are objected against on constitutional grounds and so are ULTRA VIRES unless and
until the High Court of Australia declares them to be INTRA VIRES! Yet ample of
employers are using the new legislation in the mean time thinking that they are acting
lawfully and not even the Federal Government and so the Opposition are aware that the
20 new legislation is and remains at the moment ULTRA VIRES!
AND, BESIDES MYSELF THERE APPEAR TO BE, AS I UNDERSTAND IT, NOT
A SINGLE CONSTITUTIONAL ADVISOR WHO ACTUALLY UNDERSTAND
THAT MATTER! Yet, if the OFFICE OF THE GUARDIAN had already existed then
25 employers would have been Quick smart to realise they could not use the purported
legislation once there was a constitutional based challenge on foot as it was all ULTRA
VIRES.
Galations 4:16. Am I therefore become your enemy, because I tell you the truth?
30
The error is in the assumption that the General Government is a party to the constitutional compact.
The States formed the co mpact, acting as sovereign and independent communities.
The Constitution has admitted the jurisdiction of the United States within the limits of the several
States only so far as the delegated powers authorize; beyond that they are intruders, and may rightfully
35 be expelled.
The government of the uncontrolled numerical majority, is but the absolute and despotic form of
popular government...
If we do not defend ourselves none will defend us; if we yield we will be more and more pressed as we
recede; and if we submit we will be trampled underfoot.
40 John C. Calhoun

"In the beginning of a change, the Patriot is a scarce man, brave, hated and scorned. When his cause
succeeds however, the timid join him, for then it costs nothing to be a Patriot."
- Mark Twain
45
END QUOTE Chapter 002 OFFICE OF THE GUARDIAN
.
As we have seen above regardless is it might be needed if it is not within constitutional
powers then it is ULTRA VIRES.
50 .
Also, legislation may be valid for one purpose and not for another purpose. The ETS is a
clear example.
.

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Constitutionally environment, conservation and water remains under State legislative powers and
yet we have both the State and the Commonwealth legislating and then also the non existing
level of government of municipal and shire councils doing likewise. The truth is that it is and
remains to be a State legislative power. More over the ETS is not some tax to raise taxation but
5 is a proposed taxation to deal with environmental issues and that is beyond the commonwealths
powers.
.
Hansard 8-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
10 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.
Under a Constitution like this, the withholding of a power from the Commonwealth is
15 a prohibition against the exercise of such a power.
END QUOTE
.
.
Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the
20 National Australasian Convention) (Re Section 96 of the Constitution as now exist)
QUOTE
Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions
which must exist before this provision can be brought into operation will see that it assumes
that the states must be reduced to a condition of pauperism before they can take advantage
25 of it.

Sir JOHN FORREST.-What would you do if they were?

Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is
some power implied in the Constitution to give such aid. Now, from the consideration
and study which I have been able to give to the Constitution, I have no hesitation
30 whatever in saying that there is no such power implied. The Constitution is formed for
certain definite purposes. There are definite powers of legislation and definite powers of
administration, and the clause that the Right Hon. Sir John Forrest called attention to
just now-clause 81-expressly provides that the revenues of the Commonwealth shall
form one consolidated fund, to be appropriated for the public services of the
35 Commonwealth in the manner and subject to the charges provided in this Constitution.

Mr. WISE-The order and good government of the Commonwealth would come under
the term "public services of the Commonwealth."
Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of
the powers of the Commonwealth, especially when dealing with the expenditure of the
40 money of the taxpayers. In such a case there will be a great deal of care taken to keep the
nose of the Federal Parliament to the grindstone in the matter of this expenditure. I do not
think any expenditure will be constitutional which travels outside these limits. We
must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
45 case the Constitution will be above Parliament, and Parliament will have to conform
to it. If any Act were carried giving monetary assistance to any state it would be
unconstitutional, and the object sought would not be attained. That brings me to the
question of whether it is desirable that there should be any such power either expressed or
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implied. I have no hesitation in saying that it would be a disastrous thing for the future of
the [start page 1109] Commonwealth if there was any such power given.
END QUOTE
.
5 In view that s96 was later added at the premier conference then State funding is
permissible but in limited manner only!
.
The following is a quotation of the content of a 22-11-2008 correspondence to Kevin Rudd PM
and it should be understood that Municipal and shire councils are not within the issue of “local
10 government” as they do not constitutionally exist as such but are rather corporations. Hence, s.96
funding is unconstitutional for shire and municipal councils.
.
QUOTE 22-11-2008 correspondence to Kevin Rudd PM
WITHOUT PREJUDICE
15 Kevin Rudd PM 22-11-2008
.
C/o; The Hon Robert McClelland MP, Attorney-General
Cc; The Hon. Malcolm Turnbull, MP
.
20 AND TO WHOM IT MAY CONCERN
.
Kevin, this correspondence will be forwarded to you via the Attorney-General in that the volume
is too large to be forwarded through your email system, nevertheless I do seek from you an
appropriate response.
25 .
The heading of this correspondence will also be forwarded to you via your ordinary email
facilities so you will be aware of the document having been forwarded to the Attorney-General.
.
Do try to avoid having someone writing back to me that they cannot give legal advise to me as
30 this comes across that the person concerned hasn’t got a clue what I am writing about. I can
assure you the last thing I would want is legal advise of those who themselves fails to understand
and/or comprehend what the Constitution is about.
The matter deals with not just Section 96 of the Constitution but also the constitutional validity
of the Commonwealth to give away $300 million dollars to municipal councils and I like a
35 precise set out within which alleged constitutional powers such payments are made. After all that
is what I am entitled to know when my money is used in such manner, and for the record this
correspondence is a formal objection to the misuse of Consolidated Revenue in that manner.
Also within which constitutional powers the Commonwealth can deal with a so called
Australian Council of Local Government, not being part of the constitutional framework at all.
40 .
QUOTE Chapter Section 96 true application
Chapter Section 96 true application
* Gerrit, what is your view about Section 96 true application?
.
45 **#** INSPECTOR-RIKATI®, As I have set out below, this Section 96 is not a section that
ordinary can be used, as is ongoing being done, but is only permissible to be used if a State is in
extreme financial difficulties, such as the first “ten years” after federation, and there after, as set
out below. Now, the first thing that should be considered is why did the Framers of the
Constitution in the first place refer to “ten years” and not just make it a permanent fixture. The
50 reason being that because of the change of systems in customs and duties it was anticipated that
some States may get into financial problems not being able to raise the monies required for its
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expenditure otherwise needed and so a State could fail to meet its obligations to pay loans, etc. It
was held that after the “ten years” unlikely such a situation were to eventuate but just in case
that it was to happen then in extreme circumstances the Commonwealth could still assist. As
such the time limit of “ten years” is where the colonies already may have loans to pay out and as
5 such the federation suddenly would cause financial harm to it (as a State) that could not
otherwise have been contemplated and after “ten years” it would have been deemed that
ordinary the States could have set up their financial arrangements to provide for sufficient
monies for the Appropriation Bills before the Parliament and as such only extreme cases of
financial circumstances then could be warranted to invoke Section 96.
10 .
Commonwealth of Australia Constitution Act 1900 (UK)
96 Financial assistance to States
During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise
15 provides, the Parliament may grant financial assistance to any State
on such terms and conditions as the Parliament thinks fit.
.
Hansard 17-2-1898 Constitution Convention Debates
QUOTE
20 Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the
mind of the statistician and the financier more than to the mind of a humble layman, and I
am sure that if there is one member of this Convention competent to solve the problem of
capitalizing a financial discrepancy it is Mr. Walker. However, I have pointed out what
seems to me to be the difficulty to which Mr. Henry has addressed his amendment, and I
25 feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
condition of things after the expiration of the five years, is absolutely without force as
applied to the condition of things to which Mr. Henry's amendment is directed. But I go
further than that, and I take up the view which was dealt with by Mr. O'Connor on the
broad ground-and that is the position to which I wish to direct the attention of members of
30 the Convention-of whether it is politic or right to introduce this amendment into the
Constitution. If this power is implied in the Constitution, then the amendment merely
asserts and makes absolutely clear a power which the Commonwealth might exercise
if the necessity arose. On the other hand, if it is not implied in the Constitution, it
seems to me that it is a power that ought to be in the Constitution, so as to enable the
35 Commonwealth to do what I believe it would be the disposition of the Federal
Parliament to do, namely, to come to the aid of any state which sought its interference
to protect that state from financial disaster or financial strait. I admit all the
possibilities on the two grounds put by Mr. Holder-that there is a possibility of this
provision leading to reckless financing on the part of the states, and also the other
40 ground that it imposes an obligation on the Commonwealth, and a difficulty with
which the Federal Parliament and the Federal Executive may have to deal. But those
two things do not seem to me to outweigh the advantage of having this power clearly
expressed in the Constitution, to enable the Federal Parliament to give that assistance
which might be absolutely essential to the stability and even to the existence of a
45 particular state. Now, I will suppose the case of a state in which such a condition of
things has arisen. But again, I say, I do not believe that such a condition of things
would ever occur in any of the states of this Commonwealth. Still, suppose a state got
into financial embarrassment, and there was a tendency towards, or a talk of,
repudiation, why should not the Federal Executive and the Federal Parliament, in the
50 interests of the Commonwealth, come to the assistance and relief of that state? Would
it not be infinitely better that the Commonwealth should exercise a power of that kind
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than that it should allow a blemish to be put on the honour and good faith of the
entire Commonwealth, which would result from any one state repudiating its
obligations?
END QUOTE
5 .
Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR 575
(23 August 1957) (From High Court of Australia;
QUOTE DIXON CJ
(2) the object is outside the powers of the Commonwealth,
10 END QUOTE DIXON CJ
.
QUOTE DIXON CJ
31. Before the meaning of s. 96 and the scope of the power it gives had been the
subject of judicial decision no one seems to have been prepared to speak with any
15 confidence as to its place in the constitutional plan and its intended operation. It may
be said perhaps that while others asked where the limits of what could be done in
virtue of the power the section conferred were to be drawn, the Court has said that
none are drawn; that any enactment is valid if it can be brought within the literal
meaning of the words of the section and as to the words "financial assistance" even
20 that is unnecessary. For it may be said that a very extended meaning has been given to
the words "grant financial assistance to any State" and that they have received an
application beyond that suggested by a literal interpretation. (at p611)
END QUOTE DIXON CJ
.
25 Hansard 17-3-1898 Constitution Convention Debates
Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
30 alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
.
35 Hansard 11-3-1898 Constitution Convention Debates
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
40 curtailing the power of the committee to arrive at such a conclusion as they may think fit if
I ruled this out of order.
.
For so far I have been able to detect not a single judge did actually consider that Section 96 was
only to be used in extreme circumstances if ever at all. After all, why bother to work out over so
45 many years a Constitution if Section 96 could give ultimate powers to the Commonwealth of
Australia? While it was held that the States handed over their income tax powers to the
Commonwealth the truth is that the moment the Commonwealth commenced to legislate as to
income taxation the States no longer had this legislative powers as their taxation powers are on
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subjects the Commonwealth doesn’t legislate upon. It means that if the Commonwealth were to
legislate as to land tax then the States no longer can do so. Hence the usage of Section 96 is
unconstitutional as it seeks to give the States powers to levy income tax on a subject that became
exclusive powers of the Commonwealth once it commenced to legislate as to income tax.
5 Again, the States have their taxation powers but only upon the residue of subjects the
Commonwealth does not legislate upon.
* I am puzzled now. I understood that once the commonwealth legislated upon any subject listed
in Subsection 51 of the Commonwealth of Australia Constitution Act 1900 (UK) then the States
lost its legislative powers upon that subject?
10 .
**#** I must admit that this is a confusing matter but proper reading of the Hansard readings of
the intention of the Framers of the Constitution is that other as to the legislative powers of
taxation when the Commonwealth commences to legislate in regard of any listed subject then;
a. The States no longer have any further legislative powers in such a subject.

15 b. The prior enacted State laws (since federation) will be subject to Commonwealth
legislative provisions

c. The Commonwealth legislation must not offend existing colonial legislation (as such not
reduce legal benefits existing in colonial legislation) that was not amended since
federation.

20 d. Colonial legislation that was amended since federation will be subject to Commonwealth
legislation as any other prior State legislation is.
What this means is, as the Framers of the Constitution extensively debated, was that the
commonwealth could not defeat certain colonial benefits and any legislation must provide for
those existing colonial benefits, however, the States could not amend colonial laws existing prior
25 to federation as to try to shore up further rights before the Commonwealth were to legislate as
then the colonial legislation having been amended no longer were superior and the
Commonwealth would be free to legislate as if the colonial law was a State legislation. This was
done because there was concern that some States might seek to make amendments to colonial
legislation as to increase certain rights for their citizens before the Commonwealth could
30 commence to legislate, and as such this was a deterrent against States to amend their colonial
legislation for this purpose. However where it came to taxation matters the Framers of the
Constitution held that each State would be free to legislate upon taxation matters on subjects the
Commonwealth had not covered in its taxation legislation. As such once the Commonwealth
introduced income tax legislation then the States were barred from this field and no longer could
35 raise income taxes. However, it didn’t prevent the states to raise taxes otherwise not covered by
the Commonwealth. It means that once the Commonwealth was to commence to legislate as to
land taxes then the States no longer can do so.
Chapter V—The States
106 Saving of Constitutions
40 The Constitution of each State of the Commonwealth shall, subject
to this Constitution, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be, until altered in accordance with the
Constitution of the State.
45 107 Saving of Power of State Parliaments
Every power of the Parliament of a Colony which has become or
becomes a State, shall, unless it is by this Constitution exclusively
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vested in the Parliament of the Commonwealth or withdrawn from
the Parliament of the State, continue as at the establishment of the
Commonwealth, or as at the admission or establishment of the
State, as the case may be.
5 108 Saving of State laws
Every law in force in a Colony which has become or becomes a
State, and relating to any matter within the powers of the
Parliament of the Commonwealth, shall, subject to this
Constitution, continue in force in the State; and, until provision is
10 made in that behalf by the Parliament of the Commonwealth, the
Parliament of the State shall have such powers of alteration and of
repeal in respect of any such law as the Parliament of the Colony
had until the Colony became a State.
.
15 South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65 CLR
373 (23 July 1942) (From High Court of Australia;

QUOTE Starke J
In my opinion, the object of the Act is not merely to grant financial assistance to the
20 States, but there is linked up in it an object and an end that is inconsistent with the
limited grant of power given by sec. 96 to the Commonwealth, namely, making the
Commonwealth the sole effective taxing authority in respect of incomes and
compensating the States for the resulting loss in income tax. The argument that the
States Grants Act leaves a free choice to the States, offers them an inducement but deprives
25 them of and interferes with no constitutional power, is specious but unreal. And it does not
meet the substance of the States' position that the condition of the Act relates to a matter in
respect of which the Commonwealth has no constitutional power whatever, and yet by
force of the condition and not as a consequence of the exercise of any power conferred
upon the Commonwealth, the grant of assistance to the States is withdrawn unless they
30 comply with its terms.

End QUOTE

Again, the States lost their legislative powers as to income taxation the moment the
Commonwealth legislated for income taxation and the States therefore could not give up some
legislative powers by way of a purported Section 96 grant which they no longer had.
35 .
Either the Commonwealth legislate or the States but not both!
.
* Can I then ask is in your view the Road funding to which so much attention was given
constitutionally valid?
40 .
**#** Not at all as Section 96 is used like a prostitute as to be used for everyone where in fact
the intention was if possibly never have it used at all.
.
I could not detect a single judge who bothered to consider why Section 96 was in fact in the first
45 place submitted by the Framers of the Constitution, then thrown out but later inserted when the
referendums were failing, where the people were concerned that if by the federation a state was,
so to say, go belly up then there be no rescue by the Commonwealth.
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You may also consider;
99 Commonwealth not to give preference
The Commonwealth shall not, by any law or regulation of trade,
commerce, or revenue, give preference to one State or any part
5 thereof over another State or any part thereof.

105 Taking over public debts of States


The Parliament may take over from the States their public debtsas
existing at the establishment of the Commonwealth, or a proportion
10 thereof according to the respective numbers of their people as
shown by the latest statistics of the Commonwealth, and may
convert, renew, or consolidate such debts, or any part thereof; and
the States shall indemnify the Commonwealth in respect of the
debts taken over, and thereafter the interest payable in respect of
15 the debts shall be deducted and retained from the portions of the
surplus revenue of the Commonwealth payable to the several
States, or if such surplus is insufficient, or if there is no surplus,
then the deficiency or the whole amount shall be paid by the
several States.
20 .

Section 105 clearly is limited to debts existing at the time of federation.

Section 99 however is a Section that in fact does apply to Section 96.


Hansard 17-3-1898 Constitution Convention Debates
Sir EDWARD BRADDON.-
25 When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
30 people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
.
Hansard 11-3-1898 Constitution Convention Debates
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
35 Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
I ruled this out of order.
40 .
What this means is that while the Commonwealth can come to the aid of a State in severe
financial crisis upon such terms as thinks fit, as to avoid, say it going belly up, it must do so in an
appropriate manner as not to discriminate against other States. As such, the Commonwealth must
seek to recover any aid as much as possible, where reasonable, so as not to discriminate against
45 other states.
.
As I have set out below
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You would undermine the entire Constitution if Section 96 could be deemed to stand on its own.
Section 96 was inserted for extreme circumstances only and not otherwise and not at all for the
States to use this as a backdoor manner to fund road projects, etc. Neither for the commonwealth
to use general taxes and as such basically blackmail the States to hand over their legislative
5 powers, etc, as otherwise it will be starved of monies. As the Framers of the Constitution made
clear that every clause relates to a previous clause and as such Section 96 is limited by Section
99.
Indeed as will be shown the road funding and other grants interferes with the very reason why
the Inter-State Commission was set up and is constitutionally a body that MUST exist, and it
10 alone can deal with any grants that is not ordinary for the whole of the Commonwealth.
.
101 Inter-State Commission
There shall be an Inter-State Commission, with such powers of
adjudication and administration as the Parliament deems necessary
15 for the execution and maintenance, within the Commonwealth, of
the provisions of this Constitution relating to trade and commerce,
and of all laws made thereunder.
102 Parliament may forbid preferences by State
The Parliament may by any law with respect to trade or commerce
20 forbid, as to railways, any preference or discrimination by any
State, or by any authority constituted under a State, if such
preference or discrimination is undue and unreasonable, or unjust
to any State; due regard being had to the financial responsibilities
incurred by any State in connexion with the construction and
25 maintenance of its railways. But no preference or discrimination
shall, within the meaning of this section, be taken to be undue and
unreasonable, or unjust to any State, unless so adjudged by the
Inter-State Commission.
103 Commissioners’ appointment, tenure, and remuneration
30 The members of the Inter-State Commission:
(i) shall be appointed by the Governor-General in Council;
(ii) shall hold office for seven years, but may be removed within
that time by the Governor-General in Council, on an address
from both Houses of the Parliament in the same session
35 praying for such removal on the ground of proved
misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix;
but such remuneration shall not be diminished during their
continuance in office.
40 .
Clearly, if Section 96 of the Constitution was to be intended to be used for grants regarding road
works, etc, then this nullifies the very purpose of the Inter-State Commission. The Inter-State
Commission was purposely set up as to be allowed to discriminate between States where in the
interest of a State this was deemed necessary and where the Commonwealth could not otherwise
45 be permitted to do so, such as fund infra structure of a port of navigational rivers as then the
Inter-State Commission is to deal with this and would not be bound like the Commonwealth for
the “whole of the Commonwealth” but could allocate funding for improvements as may be most
suitable to each State concerned. As such, if there was a need to for proportion usage of funding
it is for the Inter-State Commission to do so.
50 Getting back to the legislative powers we should consider the following;
Commonwealth of Australia Constitution Act (UK)
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(The Constitution)
.
51 Legislative powers of the Parliament [see Notes 10 and 11]
The Parliament shall, subject to this Constitution, have power to
5 make laws for the peace, order, and good government of the
Commonwealth with respect to:

(vi) the naval and military defence of the Commonwealth and of


the several States, and the control of the forces to execute and
10 maintain the laws of the Commonwealth;

119 Protection of States from invasion and violence


The Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State,
15 against domestic violence.

120 Custody of offenders against laws of the Commonwealth


Every State shall make provision for the detention in its prisons of
persons accused or convicted of offences against the laws of the
20 Commonwealth, and for the punishment of persons convicted of
such offences, and the Parliament of the Commonwealth may make
laws to give effect to this provision.
.
As a CONSTITUTIONALIST I for one understand why the Framers of the Constitution
25 provided the various sections. What this means is that the Commonwealth while having
legislative powers as to the armed forces cannot enter any State as to enforce its own laws
(Commonwealth law) but can only assist a State in case of domestic violence (such as rebellion)
where as the enforcement of Commonwealth law is beyond the State boundaries. As the Framers
of the Constitution made clear that Commonwealth law can only be enforced within the States by
30 the local police and by State Courts. In fact on 19 July 2006 the County Court of Victoria upheld
also my submission that the commonwealth has no constitutional powers to interfere with State
Courts procedures such as to pursue the usage of “AVERMENT”. And in fact the state of
Victoria did legislate that in regard of Bass Strait Commonwealth could use AVERMENT and as
such this underlined that unless a State specifically provided for this the Commonwealth cannot
35 legislate and enforces its own laws. This also because the Framers of the Constitution made clear
that State Courts could nullify Commonwealth law!
Hansard 31-1-1898 Constitution Convention Debates
QUOTE
That, after the words "every such trial shall," the words "unless Parliament otherwise
40 provides" be inserted.

Mr. WISE-That gives the Executive power to change the venue.

Mr. HIGGINS.-No-the Parliament. It will simply give Parliament the power to declare
under what circumstances and in what cases there shall be a discretion to have the trial in
any other state. The law as it stands in the present Bill is that the trial, as a matter of
45 constitutional law, shall be held in the particular state where the offence was
committed. I propose to enable the Federal Parliament to say that in certain cases and on
certain Contingencies, and with certain restrictions and limitations, the trial may be held in
some other place. I think that is simply another instance of trusting the Federal Parliament
to put the matter on the best basis.
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Mr. WISE (New South Wales).-The only class of cases contemplated by this section
are offences committed against the criminal law of the Federal Parliament, [start page
354] and the only cases to which Mr. Higgins' amendment would apply are those in
which the criminal law of the state was in conflict with the criminal law of the
5 Commonwealth; in any other cases there would be no necessity to change the venue,
and select a jury of citizens of another state. Now, I do not know any power, whether in
modern or in ancient times, which has given more just offence to the community than the
power possessed by an Executive, always under Act of Parliament, to change the venue for
the trial of criminal offences, and I do not at all view with the same apprehension that
10 possesses the mind of the honorable member a state of affairs in which a jury of one state
would refuse to convict a person indicted at the instance-of the Federal Executive. It might
be that a law passed by the Federal Parliament was so counter to the popular feeling of a
particular state, and so calculated to injure the interests of that state, that it would become
the duty of every citizen to exercise his practical power of nullification of that law by
15 refusing to convict persons of offences against it. That is a means by which the public
obtains a very striking opportunity of manifesting its condemnation of a law, and a
method which has never been known to fail, if the law itself was originally unjust. I
think it is a measure of protection to the states and to the citizens of the states which should
be preserved, and that the Federal Government should not have the power to interfere and
20 prevent the citizens of a state adjudicating on the guilt or innocence of one of their fellow
citizens conferred upon it by this Constitution.
END QUOTE
As such Subsection 51(vi) is not some right for the Commonwealth to deploy soldiers of
Australian Federal Police or others to enforce Commonwealth law because this never was
25 intended by the Framers of the Constitution in fact rejected; See also my published book with
Chapter 557 –Sovereign State rights -our own Police.
Hansard 9-3-1891 Constitution Convention Debates
Sir GEORGE GREY:
Now, look how we stand. From the Atlantic, on the one side, back again to the same ocean
30 really, I may say, upon the other side, there lies a great space in the world in which there is
no standing army at the present day, no [start page 143] preparation made for military
attacks, for military defence-the United States-with, I believe, 12,000 men to keep the
Indian population down, and the whole is at peace and repose; her young men are not
drawn into conscriptions, not prepared to be fit victims for slaughter, not certain to be
35 slaughtered in some few years' time in some obscure corner or other, but all devoting
their energies to the development of the country, marrying, becoming famers, or filling
different trades and professions, not shut up in barracks, excluded from knowing what the
affection of a wife and the love of children really is. Here, all are totally different, and for
heaven's sake let us keep in our present position, and not go off into the mania which has
40 made Europe the nations of standing camps which it is.
.
Hansard 10-3-1891 Constitution Convention Debates
Mr. DIBBS:
." There may be something more dignified in the use of the word "state." We are not
45 going to become provinces. I do not think we are going to give up the individual rights
and liberties which we possess, and which those who have gone before us have fought
for, to become mere provinces under a federal form of government. We may take the
more dignified form of "states." Whilst we have endeavoured to put before the people of
New South Wales, in these resolutions, a sort of opiate, something assuring to their minds

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that in joining a federal union we give up nothing of our territorial rights, words have been
inserted in them which I shall do my utmost in Committee to strike out-

except in respect to such surrenders as may be agreed upon as necessary and incidental to
the power and authority of the national federal government.

5 I do not know the meaning of these words, and no hon. gentleman who has yet spoken has
given any clear interpretation of them. It is sufficient for us, in enunciating a principle
upon which the basis of a constitution shall be prepared, to see that the territorial
rights and privileges of each colony shall be preserved to each state but when you
come to consider the condition of a surrender, and the question of the power of
10 enforcing such surrender is placed in the hands of the federal government, then your
provinces or your states will be no party to the proceeding.

Mr. GILLIES: The resolution does not say that!

Mr. DIBBS: Well, I shall be very glad to have any other meaning placed upon it. It will
be for the federal government to claim, and I take it, for the federal government to enforce.
15 And

Mr. DIBBS:
The question of creating a standing army is one which, to my mind, is almost more
repulsive than the question of readjustment of territorial boundaries. It means the
20 existence in our midst of a certain number of idle men-men sharpening their knives and
their swords for the first fitting opportunity of fleshing them on the people of their own
country, because we have no other enemies. We, in Australia-federated Australia, I may
take it, because the matter is one which applies to the whole-have no enemies within our
borders; we have no Indians to dispute with us the possession of the soil; we have no
25 powerful Maori race, to fight, as was once the case in New Zealand, for the territory the
right to which belonged to the Maoris themselves. We have no enemies within, and the
only thing we have to fear is the possibility of any assault on the mother country by
her enemies from without, unless indeed the creation of a standing army proves a
menace to the people of Australia by the existence of an armed force for unlawful
30 purposes. This question of the creation of a military force is one of the blots upon these
resolutions. We want no military force within New South Wales. All we want to do is to
make every man who is either a native of the soil, or one of ourselves by reason of his
taking up his residence amongst us, prepare to resist possible invasion from without.
Who are our enemies? Who are our enemies but the enemies of England, and they, so
35 long as we remain under the Crown, will be dealt with by an outer barrier, an outer
bulwark in the defence of Australia, in the shape of the navy of Old England. But we
have no enemies within, and there is no necessity to fasten the curse of a standing army
upon us. As was pointed out by the hon. member, Sir George Grey, yesterday, in his
interesting speech, we have no necessity to keep a large standing army at a large cost to the
40 people of the country, [start page 185] when we have no enemies with whom they will have
to fight. Our own police are quite sufficient for the preservation of order within. In the
event of invasion from without, so long as we remain under the Crown, our enemies, being
the enemies of England, will be dealt with before ever an attempt is made to invade these
shores; and when the day of invasion comes the people of this country will rise as one man
45 to defend their hearths and homes from any possible aggressor. I look upon the question of
the creation of a military power within a territory under the Crown as a menace to the
people who are to continue as British subjects. We have been sent here by our various
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parliaments to frame a constitution under the Crown-under the Crown, bear in mind. That is
the idea which has been put forward in every speech that has been made. I presume, then,
that the members of the Convention are prepared at once to give the go-by altogether to the
idea of imperial federation. So long as we remain in our present position as individual
5 colonies, we are imperially federated, and we can be imperially federated in no
stronger manner than in connection with our relation to the mother country. We are
as much imperially federated as the people living in the cities of London, Liverpool,
Manchester, or other large centres of population. We are a portion of the British Crown,
joined together by the most solemn ties and obligations; and we have to bear the brunt of
10 any misfortune which may fall upon us in connection with any attack upon our shores by
reason of our enemies being the common enemies of England. We have already made
certain provision, partially of a federal character, to assist the Imperial Government in the
protection of our shores from without; but let us set our faces as a young nation-if I may
use the word "nation" in advance-against standing armies; let us set our face once and for
15 ever against the creation of anything like a military despotism. We are met here under
the Crown, and I must say that, as one possessing a slight tinge of republican notions,
as one who sees that the future of Australia is to be what was prophesied of it fifty
years ago, by poets who have written of what the future of Australia is to be-having a
certain tinge of republicanism in my nature, the result naturally of my being a
20 descendant of an Englishman, I was surprised to find a gentleman occupying a
position under the Crown proposing what 100 years ago would have been simply
regarded as high treason. Why, the other day the hon. member, Mr. Munro, made a
proposal with regard to one phase of the question which made me ejaculate, "One strand of
the painter has gone."

25 Mr. MUNRO: What was that?

Mr. DIBBS: The hon. member proposed to take from us, as British subjects, the
chartered right which we possess of appeal to the Crown.
.
Is should therefore be clear that Subsection 51(vi) does not at all provide some license for the
30 Commonwealth to enforce its own laws against citizens of a State but they have to pursue
enforcement through the State Courts.
.
(vi) the naval and military defence of the Commonwealth and of
the several States, and the control of the forces to execute and
35 maintain the laws of the Commonwealth;
.
Likewise Section 96 is not some provision that entitles the Commonwealth to circumvent
constitutional prohibitions/limitations but is a provision that is to be used, if ever at all, if a State
is in dire straits as to on a financial collapse. To accept otherwise would totally defeat other
40 provisions stated in the Constitution;
.
Hansard 2-3-1898 Constitution Convention Debates

QUOTE Mr. BARTON.-

If we are going to give the Federal Parliament power to legislate as it pleases with
45 regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass legislation that would really defeat all the principles inserted

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elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
not what is meant by the term "Trust the Federal Parliament."

END QUOTE
.
5 Likewise so with Section 96, as to interpret by the Courts in a manner it has been done so far it
would defeat the principles elsewhere stated in the Constitution. Therefore what is required is to
reconsider the true intention of the Framers of the Constitution in regard of Section 96 and below
I seek further to present some of their intentions as well as present some of the statements in
various judgments albeit to quote all of them would not be reasonable to do in this document as it
10 would require hundreds of additional pages. I do not view this is needed with the general
presentation in this document.
.
Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR 575
(23 August 1957) (From High Court of Australia; 23 August 1957; 204 KB)
15 QUOTE DIXON CJ
18. The constitutional basis for this enactment is s. 96. Section 96 forms part of the
financial clauses of the Constitution which we know as a matter of history were the final
outcome of the prolonged attempts to reconcile the conflicting views and interests of the
colonies on that most difficult of matters. (at p603)

20 19. The fact that it came out of the Premiers' Conference of 1899 (see the Victorian
statute Australasian Federation Enabling Act 1899 (No. 1603) particularly s. 2 and first
schedule), when the opening words of s. 87 (the Braddon clause) were inserted, does not
assist in its construction nor ought the fact to be used for such a purpose, notwithstanding
that now it has a place, however inconspicuous, as part of the history of the country. But it
25 may explain why the terms in which it was drafted have been found to contain possibilities
not discoverable in the text as it emerged from the Conventions, and also why the same
opening words were adopted as in the Braddon clause as to the duration of the power,
although in a context where they seem to have no purpose or effect that is intelligible, or at
all events credible. It is, perhaps, as well to set out s. 96. It is as follows: - " 96. During a
30 period of ten years after the establishment of the Commonwealth and thereafter until the
Parliament otherwise provides, the Parliament may grant financial assistance to any
State on such terms and conditions as the Parliament thinks fit." One may guess that s. 96
was regarded as connected with the Braddon clause, s. 87, and that the purpose of the
opening words was to enable the Parliament to terminate the operation of both together. See
35 Quick and Garran: The Annotated Constitution of the Australian Commonwealth (1901)
pp. 869, 870, and per Evatt J., in Deputy Federal Commissioner of Taxation (N.S.W.) v. W.
R. Moran Pty. Ltd. (1939) 61 CLR, at p 803 . But s. 51 (xxxvi.) confers upon the
Parliament legislative power "with respect to matters in respect of which this Constitution
makes provision until the Parliament otherwise provides". On its face par. (xxxvi.)
40 presupposes that the Parliament is authorised to provide otherwise as to "matters" with
respect to which the Constitution immediately provides: they will be matters defined, like
those enumerated in s. 51, in such a way as to be subjects "with respect to" which laws may
be made. Section 87 does deal with such a matter, viz. the disposal of the net revenue of the
Commonwealth. In the same way subject matters "with respect to" which legislative
45 powers may be exercised are specified by the other provisions of the Constitution, except s.
96, in which the phrase occurs "until the Parliament otherwise provides" (cf. ss. 3, 7, 10,
22, 24, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73 and 97). (at p604)

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20. In all such cases the Constitution makes directly an interim provision for the subject
matter and s. 51 (xxxvi.) operates to confer power on the Parliament to make thereafter
such provisions with respect thereto as from time to time may appear appropriate. But s. 96
does not deal with a legislative subject matter; it does not make some interim provision
5 with respect thereto. It confers a bare power of appropriating money to a purpose and of
imposing conditions. Either the power is terminated or it continues. It would be easy to
understand if it terminated when another provision under or "with respect to" s. 87 was
made but, however much one may suspect it, there is nothing in the Constitution itself to
warrant any such construction. The conclusion reached in Quick and Garran: The
10 Annotated Constitution of the Australian Commonwealth (1901) p. 870 was that the section
might be considered for all practical purposes as a permanent part of the Constitution; and
the Constitutional Commission of 1927-1929, after hearing the meaning discussed of the
limitation to "a period of ten years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides", reported that they considered the words
15 to be ineffective and recommended that they be repealed. In the cases in this Court in which
s. 96 has been considered, except in the passage to which a reference has already been
made in the judgment of Evatt J. in Moran's Case (1939) 61 CLR, at p 803 , it seems to
have been taken for granted that the scope and purpose of the power conferred by s. 96 was
to be ascertained on the footing that it was not transitional but stood with the permanent
20 provisions of the Constitution. (at p605)

21. On this basis it is apparent that the power to grant financial assistance to any State upon
such terms and conditions as the Parliament thinks fit is susceptible of a very wide
construction in which few if any restrictions can be implied. For the restrictions could only
be implied from some conception of the purpose for which the particular power was
25 conferred upon the Parliament or from some general constitutional limitations upon the
powers of the Parliament which otherwise an exercise of the power given by s. 96 might
transcend. In the case of what may briefly be described as coercive powers it may not be
difficult to perceive that limitations of such a kind must be intended. But in s. 96 there is
nothing coercive. It is but a power to make grants of money and to impose conditions on
30 the grant, there being no power of course to compel acceptance of the grant and with it the
accompanying term or condition. (at p605)
END QUOTE

South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65 CLR
35 373 (23 July 1942) (From High Court of Australia; 23 July 1942; 242 KB)
QUOTE Starke J
In my opinion, the object of the Act is not merely to grant financial assistance to the
States, but there is linked up in it an object and an end that is inconsistent with the
limited grant of power given by sec. 96 to the Commonwealth, namely, making the
40 Commonwealth the sole effective taxing authority in respect of incomes and
compensating the States for the resulting loss in income tax. The argument that the
States Grants Act leaves a free choice to the States, offers them an inducement but deprives
them of and interferes with no constitutional power, is specious but unreal. And it does not
meet the substance of the States' position that the condition of the Act relates to a matter in
45 respect of which the Commonwealth has no constitutional power whatever, and yet by
force of the condition and not as a consequence of the exercise of any power conferred
upon the Commonwealth, the grant of assistance to the States is withdrawn unless they
comply with its terms. The real object of the condition is that already stated, and it is
in my judgment neither contemplated by nor sanctioned by the Constitution, and in
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particular by sec. 96 thereof. As I have said, all State legislation and functions might
ultimately be so controlled and supervised. The possibility of the abuse of a power is
not, however, an argument against the existence of a power. But if the extent of the
power claimed by the Commonwealth leads to "results which it is impossible to
5 believe ... the statute contemplated ... there is ... good reason for believing that the
construction which leads to such results cannot be the true construction of the
statute" (The Queen v. Clarence[143]). A legitimate use of the powers contained in sec.
96 may be found in the Road Grants Case (Victoria v. The Commonwealth[144]), where
the Commonwealth and the State of Victoria entered into an agreement, the object of which
10 was to aid the State in the construction and reconstruction of certain roads. Incidentally the
making of roads would be an aid to trade and commerce, and possibly also to defence: See
Federal Aid Roads Act 1926 (No. 46 of 1926). No doubt means can be found to give the
States financial assistance without crippling them in the exercise of their powers of self-
government if the Commonwealth taxation creates economic difficulties for them. But I
15 cannot agree that the provisions of sec. 96 enable the Commonwealth to condition that
assistance upon the States abdicating their powers of taxation or, which in substance
is the same thing, not imposing taxes upon income. In my opinion, it follows that the
States Grants (Income Tax Reimbursement) Act 1942 is not within the power or
authority of the Commonwealth Parliament.
20 END QUOTE
.
Commonwealth of Australia Constitution Act 1900 (UK)
96 Financial assistance to States
During a period of ten years after the establishment of the
25 Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State
on such terms and conditions as the Parliament thinks fit.
.
QUOTE
30 to any State
END QUOTE
.
QUOTE
on such terms and conditions as the Parliament thinks fit
35 END QUOTE
.
Considering Section 116;
116 Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any
40 religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust
under the Commonwealth.
.
45 It therefore should be considered if this means that the Commonwealth can make demands that
monies provided are to be used for a certain religion only and those who do not practice a
religion are denied the funding. If one were to accept that the Commonwealth cannot insist of
making demands that are contrary to Section 116 provisions then clearly, it means that the
Commonwealth can only make demands “on such terms and conditions as the Parliament thinks
50 fit” relevant to the conditions of the assistance, being it how such monies are applied and any

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terms of repayment, etc. Not that the monies can be used to give the Commonwealth powers to
pursue unconstitutional conduct it cannot have otherwise.
.
Hansard 1-3-1898 Constitution Convention Debates
5 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
10 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
15 has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
.
Hansard 11-3-1898 Constitution Convention Debates
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
20 Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
I ruled this out of order.
25 .
Hansard 17-3-1898 Constitution Convention Debates
Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
30 consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
35 .
Hansard 8-2-1898 Constitution Convention Debates
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
one of those instances which should make us very careful of following too slavishly the
40 provisions of the United States Constitution, or any other Constitution. No doubt in putting
together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
degree applicable. But it is for us to consider, looking at the history and reasons for these
45 provisions in the Constitution of the United States, whether they are in any way applicable;
and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of every word that we put in this Constitution, and that we should have no
word in it which we do not see some reason for. Because there can be no question that in
time to come, when this Constitution has to be interpreted, every word will be weighed and
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an interpretation given to it; and by the use now of what I may describe as idle words which
we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
5 .
HANSARD 17-3-1898 Constitution Convention Debates
Mr. BARTON.-this Constitution is to be worked under a system of responsible
government
And
10 Mr. BARTON.- We have simply said that the guarantee of the liberalism of this
Constitution is responsible government, and that we decline to impair or to infect in any
way that guarantee.
And
Mr. BARTON.- Of course it will be argued that this Constitution will have been
15 made by the Parliament of the United Kingdom. That will be true in one sense, but
not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
And
20 Mr. BARTON.- Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
people.
.
25 HANSARD 17-3-1898 Constitution Convention Debates
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
.
HANSARD 10-03-1891 Constitution Convention Debates
30 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
35 amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will. Again,
instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
40 that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
judiciary which towers above all powers, legislative and executive, and which is the
sole arbiter and interpreter of the constitution.
.
45 Hansard 2-3-1898 Constitution Convention Debates
Mr. BARTON.
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
Parliament to pass legislation that would really defeat all the principles inserted

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elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
not what is meant by the term "Trust the Federal Parliament."
.
Again;” that would really defeat all the principles inserted elsewhere in the Constitution”.
5 .
It therefore should be clear that to avoid to “defeat all the principles inserted elsewhere in the
Constitution”
.
HANSARD 31-1-1898 Constitution Convention Debates
10 Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
.
HANSARD 8-2-1898 Constitution Convention Debates
Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
15 member is quite right in saying that it took place under the next clause; but I am trying to
point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
.
Hansard 8-3-1898 Constitution Convention Debates
20 Mr. ISAACS.-The court would not consider whether it was an oversight or not.
They would take the law and ask whether it complied with the Constitution. If it did
not, they would say that it was invalid. They would not go into the question of what was
in the minds of the Members of Parliament when the law was passed. That would be a
political question which it would be impossible for the court to determine.
25 And
Mr. BARTON.-Are not the annual services the annual expenditure proper to the public
service?
Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public
servant. That would not come within the ordinary annual services.[start page 2003] It
30 would not be proper to the public service of the Commonwealth. It would not be a
payment for services rendered in the future, but for services in the past.
.
And
.

35 Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no
special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs
seeks to do is to prevent the question of ultra vires arising after a law has been passed.

[start page 2004]


Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be
40 invalid.
And
Sir JOHN DOWNER.-
No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses
of Parliament act capriciously and variously from day to day-allow this 'tacking' to go on if
45 the Houses choose to agree to it-let the Houses do one thing one day and another the next,
and do not bother about altering the Constitution, but trust the Parliament." Of course; but
Parliament must only be trusted when it is within the Constitution. The Senate of to-
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day and the House of Representatives must not be put in a position superior to the
Constitution.
And
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
5 and the states on terms that are just to both.

Mr. DEAKIN.-It is made for the lawyers under this clause.

Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
Constitution is required at all; it can simply be provided that a certain number of
gentlemen shall be elected, and meet together, and, without limitation, do what they like.
10 Victoria would not agree to that. But there is a desire to draw the very life-blood of the
Constitution, so far as the states are concerned, by this insidious amendment, which would
give the Houses authority from time to time to put different constructions on this most
important part of the Constitution. I hope we will do as we have done in many instances
before, in matters that have been much debated-adhere to the decision we have already
15 arrived at.
And
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House
or a member of the Executive to call attention to any infraction or infringement of the
20 Constitution. It does not require a majority of the members of the House of Representatives
to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
the attention of the President to the fact that a Bill is introduced contrary to the
25 Constitution for that proposed law to be ruled out of order. It does not require a
majority of the states to insist that the Constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the Constitution. Neither House
could pass the standing order which would give the majority power to dissent from the
Speaker's or President's ruling. The standing orders only confer certain explicit power.
30 They give no power to either House to pass an order which would enable its members to
amend the Constitution.
And
Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of
the provision is to protect the [start page 2010] Senate from being coerced by the House
35 which has the power of the purse primarily. But the question between us is not whether you
should take away that protection, but whether you should allow the Senate itself to give up,
whether by accident or design, on any particular occasion, the protection which the
Constitution has implanted there for its benefit. The protection of this Constitution is given,
not for the Senate for the time being, but for the people of the states whom the Senate
40 represents. The question really is whether, for the purposes for which this provision is
designed, that is to say, the protection of the people of the states, as states, it is necessary
that this provision should stand which makes a Bill illegal if these provisions are not
complied with, or whether it should be made merely a matter of parliamentary order
between the two Houses?
45 And
Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned
by the honorable and learned gentleman, if the rights we are giving under this Constitution
to the House which represents the states are to be of any value at all, we should not put it
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into the power of a majority in the House of Representatives or in the Senate to
bargain them away, or to give them away at their will.
And
Mr. OCONNOR.-
5 But these difficulties can be overcome by the proper consideration of the terms of the
Constitution. I submit that the question raised here is a very much more important one
than it seems to be thought by some honorable members. I think it is the very essence of the
Constitution that we should preserve the form which has been adopted here, and that we
should make the necessity of its adoption imperative upon the Government and the
10 Parliament, subject to the liability of their acts being declared invalid by the Supreme Court
in the event of the directions of the Constitution not being followed.
And
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the
objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point
15 from which Mr. Isaacs and others have addressed themselves to the question. But it seems
to me that the argument which has been raised by Mr. Isaacs as to this last sub-section of
clause 55, is really an argument for greater clearness in the Constitution; because it seems
to be admitted that if the words of the Constitution are placed beyond dispute, then the
confusion to which my honorable and learned friend alludes cannot arise. Consequently,
20 the real meaning of the argument is this-"I could not say what I have said if your
Constitution were absolutely clear." This is an objection to the form in which the
provision stands, and an objection to form only, and not to substance, because it is admitted
that these matters can only arise by way of confusion, and consequently it must be admitted
that they can only arise where there is room for confusion in the Constitution.
25 .
Hansard 19-4-1897 Constitution Convention Debates
Mr. CARRUTHERS:
This is a Constitution which the unlettered people of the community ought to be able
to understand.
30 .
Again;
This is a Constitution which the unlettered people of the community ought to be able
to understand.
.
35 It would be fanciful to argue that the ordinary person in the community would accept that you
have a Constitution but the Commonwealth can disregard it when providing funding, as the High
Court of Australia argued in its judgment.
Or;
QUOTE
40 Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned
by the honorable and learned gentleman, if the rights we are giving under this Constitution
to the House which represents the states are to be of any value at all, we should not put it
into the power of a majority in the House of Representatives or in the Senate to
bargain them away, or to give them away at their will.
45 END QUOTE
.
CoAG (Council of Australian Governments) therefore neither have any constitutional powers to
circumvent Section 128 of the Constitution referendum to make some kind of agreement to give
the Commonwealth legislative powers where it had none! Likewise so any purported Council of
50 Municipal Councils!
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.
Hansard 8-3-1898 Constitution Convention Debates
Mr. BARTON.-
Let us examine the matter a little. Is it right that there should be tacking? There is not an
5 honorable member in the Convention who will not say that it is wrong. This clause in itself
is a clause to prevent tacking, therefore, it is a clause to do right-for whom?-for the people
themselves. What is the good of our arguing this question on the basis of the rights,
inter se, of the two Chambers, when the whole life of both these Chambers is that they
are servants of the public? For whom are these protections in clause 55 introduced? Is it
10 for the Senate they are introduced? No, it is for the public.
.
And this is what the High Court of Australia in my view appears to ignore. The right of the
public and that the Commonwealth cannot be spending moneys not permitted by the Constitution
and neither as to seek to defeat the principles stated elsewhere in the Constitution.
15 Also the following needs to be considered;

Hansard 8-3-1898 Constitution Convention Debates


Mr. DEAKIN.-
. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start
20 page 2042] as he pointed out, if there be embedded in the Constitution a direct enactment
that no proposed laws for taxation including more than the one subject of taxation, and no
proposed Appropriation Bill going outside the ordinary services of the year, can be legally
dealt with, both the Speaker of the House of Representatives and the President of the
Senate would not only be authorized, but would be imperatively required, in the
25 discharge of their duty, to rule such a measure out of order at any stage of its
existence.
And
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House
30 or a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives
to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
35 the attention of the President to the fact that a Bill is introduced contrary to the
Constitution for that proposed law to be ruled out of order. It does not require a
majority of the states to insist that the Constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the Constitution. Neither House
could pass the standing order which would give the majority power to dissent from the
40 Speaker's or President's ruling. The standing orders only confer certain explicit power.
They give no power to either House to pass an order which would enable its members to
amend the Constitution.
.
Again
45 . It only requires one member of the Senate
.
Therefore it must be clear that if just one of the Senators is doing his/her job ordinary people of
the general community would not need to pursue legislation that is ULTRA VIRES to be
defeated in court, at great financial risk of the citizen.
50 Again;
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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.
.
5 Yet, being it CoAG or the now Australian Council of Local Government, there is no
constitutional validity to circumvent the Section 101 of the Constitution Inter-State
Commission.
.
Hansard 17-2-1898 Constitution Convention Debates
10 Mr. OCONNOR.-No, but it clearly means that, and it would be a most disastrous
commentary upon the efficiency of these financial proposals if it was necessary at the same
time to provide for the insolvency of states which might take place under them.

An HONORABLE MEMBER.-Embarrassment.
Mr. OCONNOR.-The honorable member may call it embarrassment or any other
15 euphemism, but it means that we may by these proposals reduce a state to such a condition
that it will have to go cap in hand to the Commonwealth Parliament and to ask for financial
assistance.

Mr. SYMON.-You do not say that a state would become insolvent for that purpose.

Mr. OCONNOR.-No, I do not say that.


20 Mr. REID.-It is as nicely expressed as in the 60 per cent. advertisement.

Mr. OCONNOR.-It is nicely wrapped up. Any one who reflects upon the conditions
which must exist before this provision can be brought into operation will see that it
assumes that the states must be reduced to a condition of pauperism before they can
take advantage of it.

25 Sir JOHN FORREST.-What would you do if they were?

Mr. OCONNOR.-I will come to that. Mr. Wise seems to be of opinion that there is
some power implied in the Constitution to give such aid. Now, from the consideration
and study which I have been able to give to the Constitution, I have no hesitation
whatever in saying that there is no such power implied. The Constitution is formed for
30 certain definite purposes. There are definite powers of legislation and definite powers of
administration, and the clause that the Right Hon. Sir John Forrest called attention to just
now-clause 81-expressly provides that the revenues of the Commonwealth shall form one
consolidated fund, to be appropriated for the public services of the Commonwealth in the
manner and subject to the charges provided in this Constitution.

35 Mr. WISE-The order and good government of the Commonwealth would come under
the term "public services of the Commonwealth."

Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of
the powers of the Commonwealth, especially when dealing with the expenditure of the
money of the taxpayers. In such a case there will be a great deal of care taken to keep the
40 nose of the Federal Parliament to the grindstone in the matter of this expenditure. I do not
think any expenditure will be constitutional which travels outside these limits. We
must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
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case the Constitution will be above Parliament, and Parliament will have to conform
to it. If any Act were carried giving monetary assistance to any state it would be
unconstitutional, and the object sought would not be attained. That brings me to the
question of whether it is desirable that there should be any such power either expressed or
5 implied. I have no hesitation in saying that it would be a disastrous thing for the future of
the [start page 1109] Commonwealth if there was any such power given.
And
Mr. OCONNOR.-Unfortunately, things do happen in states that are not always
creditable to the public spirit of the people. We must take human nature as we find it. There
10 is no doubt that a state might be in such straits that it would unconsciously be influenced by
the feeling that it had behind it, as a last resort, a power that would save it from public
bankruptcy. I have always regarded any dealing between the Commonwealth and the state
in matters of money as a thing to be deplored. I should have much preferred some system
of finance by which the states and the Commonwealth could have been absolutely
15 independent in matters of account and in matters of money. Unfortunately, that cannot
be; but if we must have relations of this kind between the Commonwealth and the
states, let them be such that the states will have certain definite rights which they can
assert, and the Commonwealth definite rights which it can assert.
Mr. FRASER.-And duties.
20 Mr. OCONNOR.-And duties. Do not let us create a relationship between the states and
the Commonwealth in which one state may have the power to exact terms from the
Commonwealth, while the Commonwealth may be able to bring pressure to bear upon a
state or its representatives. If that is possible under the Constitution, you have at once
the germs of corruption and improper influence, which may be used disastrously in
25 the interests of the whole people. If the financial provisions of the Constitution are
administered in the spirit in which I hope they will be administered, there can be no danger
to any of the states.

HANSARD 17-2-1898 Constitution Convention Debates


30 Mr. HENRY (Tasmania).-I beg to move-

That the following stand as a new clause of the Bill:-The Parliament may, upon such
terms and conditions and in such manner as it thinks fit, render financial aid to any
state.

It is generally recognised that there is a strong necessity for the Federal Parliament to have
35 power in the event of any state being seriously embarrassed financially to step in and give
aid to that state. It is very important that we should have an assurance embedded in this Bill
that the Parliament shall have power in any such contingency to afford the necessary aid.
The question has been raised as to whether the Federal Parliament has inherent power
under this Constitution to grant such financial aid. I am not in a position to express any
40 opinion on that question. I leave it entirely to the legal talent of the Convention.
And
Mr. HENRY (Tasmania).-
I am content to leave that matter entirely to the Federal Parliament, because
honorable members will notice that this amendment states expressly "upon such
45 terms and conditions, and in such manner, as the Federal Parliament may decide?"
And
Mr. HENRY (Tasmania).-
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. I see no difficulty whatever in the Federal Parliament, in the event of a state being in
a necessitous condition, owing to a grave mistake on the part of the Federal
Treasurer, having the power, and using it, to borrow a sufficient amount of money to
5 aid the necessitous state.
And
Mr. HENRY (Tasmania).-

Without some such assurance as that the Federal Government may come to the aid of
10 a state in a necessitous condition, where the state has imposed as much direct taxation
as it can carry, I fear that some states may be deterred from entering into this
Federation.
And
[start page 1102]
15 Sir GEORGE TURNER (Victoria).-I hardly like this amendment, because it is
altogether too wide. Its provision lasts for all time, and it will to my mind bring about
continual pressure-

Mr. HENRY.-Limit it to five years.


Sir GEORGE TURNER.-If you limit it to five years it will still have the result of
20 bringing about continual pressure on the states by the Parliament to get better terms and
conditions.

Mr. SYMON.-Don't you think the Commonwealth may be liable to the same pressure
after the five years, when they have control over the surplus? They may be pressed to come
to the aid of the states.

25 Sir GEORGE TURNER.-I do not think Mr. Henry's willingness to limit the provision to
five years gets rid of my objections. It gets rid of one objection-that with regard to the
provision being too wide; but there is still the objection that there will be continual pressure
by the states on the Federal Parliament, as there has been in Canada (as our reading tells
us), to get what are called better terms. Is it to be assumed that a state is to go cap in
30 hand to the Federal Parliament and say-"We are in such an unfortunate position that we
cannot ourselves carry on with the means at our disposal, and we want you to kindly give
us some financial aid"? The effect of such an application would be that the condition of that
state's stock in the money markets of the world certainly would not be as good as it was
before the appeal to the Federation for financial aid.

35 Mr. DOBSON.-Would not the state, therefore, strive in every way to avoid asking
for aid?
And
Sir GEORGE TURNER.-We do not know it; we may be of opinion here that it is so.
But so far as this provision is concerned, either the state must place itself in the position of
40 appealing to the Federal Parliament for aid, and thus advertising its bad financial position,
or, as has been suggested, the state will not dare to make the appeal, for the reasons I have
mentioned. In the one case it would mean very severe loss to the state that made the
application; in the other it means that what we propose to insert is simply some-thing which
we know can never be taken advantage of. I believe in dealing with this question with
45 regard to Western Australia as one on which we can well base a scheme which will be

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beneficial to the colonies, and of which Western Australia may fairly and justly take
advantage without injuring her position in the money markets of the world or otherwise.
We have provided with regard to Western Australia that whatever loss is sustained there,
taking her own Tariff as against the uniform Tariff, an average is to be struck, and then
5 whatever Western Australia loses over and above that average is to be paid by the other
states to her. Now, I feel that it is hard on many of us who will suffer losses also, that we
should have to put our hands in our pockets to help a state whom our public will regard as a
rich state.
And
10 Sir JOHN FORREST.-If the Federal Parliament has not that power, it certainly ought to
have it, because we have heard over and over again in this Convention that, should evil
times fall on any state, the Federal Parliament would never allow that state to come to
disaster. It is all very well to talk like that, but if the Federal Parliament has no power to do
that, I do not see what good result will come from such declarations. I think it ought to go
15 without saying that the Federal Parliament which we are erecting should have power
to make terms and conditions with any state, in order to save its credit, if unhappily
that step should ever be necessary. And, as there may be a doubt about it, I am very much
in accord with Mr. Henry's proposal. I can see no harm whatever in it, because we have
every one of us said over and over again that the Federal Parliament will always take a
20 great interest in the welfare of the states, and will take care that no disaster ever comes to
any of the states. Of course that must be taken reasonably. States must not be allowed to be
extravagant, get into difficulty, and then expect the Commonwealth to come to their rescue.
But still, as the words "upon such terms as it may think fit" are inserted, the proposal can
do no harm, and there should be no opposition to it. Honorable members may say that this
25 power is inherent in the Commonwealth, but let us make it perfectly clear by inserting this
short clause.
And
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-

30 That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.

We see there that the Commonwealth is named as distinguished from the states. We
have our Constitution framed in this way with a Senate to guard what? The interests of the
35 states, so that the Commonwealth shall not intrude one inch into what is retained as
the executive rights and jurisdiction of the states. Yet while the Commonwealth has not
the power [start page 1112] to say one word in the government of the states as to their local
liabilities, as to the difficulties they may get into, yet we are told that the Commonwealth is
to be invited by express words on the face of the Constitution to assist the states and have a
40 sort of moral compulsion put upon it which would be very difficult to resist, and would lead
to the difficulties which have already occurred in America. I urge upon my honorable
friends to put what they choose into the Constitution to guard the solvency of the states.
Nobody ventures to assert that the states are insolvent, but if you take away their revenue,
and leave them their liabilities, they stand an extremely good chance of becoming
45 insolvent. That is what we want to guard against. The best way is to secure them a fair
return of the surplus revenue on the face of the Constitution, making it part of the duty of
the Commonwealth to do so. That is a better course than to put in a clause here which

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practically asserts that if some of those states go to the wall financially, we make it a sort of
moral compulsion on the part of the Commonwealth to come to their assistance.

Mr. LEWIS (Tasmania).-The two honorable members who have preceded me in


discussing this clause have assumed that this financial aid is to be given only, or at any rate
5 mainly, in the case of the practical insolvency of any state. I understand that what is
intended by the clause is, that it should go very much further. It includes the power of the
Parliament to guarantee a loan to a state, or to lend the money to a state, having raised it on
its own security. The honorable and learned member (Mr. Glynn) has an amendment on the
notice-paper to the effect that a state should not borrow money except from the
10 Commonwealth. It is to empower the Commonwealth to guarantee the loans of a state, or to
lend a state the money itself, that this new clause is proposed, quite as much as to enable
the Commonwealth to come to the assistance of a state which may happen to be in
embarrassed circumstances. Honorable members seem to ignore the fact that under this
clause Parliament will have the power to dictate the terms, conditions, and manner in
15 which such financial aid is to be granted. Surely that is ample protection. No state is
likely to obtain that financial, aid from the Federal Parliament unless its resources are
entirely exhausted, and it has no other means of maintaining its credit. I should like to
hear it further argued as to whether this power is inherent in the Constitution. I have grave
doubts about it myself, and for that reason I desire to see this clause inserted in the
20 Constitution. I know it has not been moved by the honorable member (Mr. Henry) as a
concession to popular prejudice, or, as Mr. Wise has called it, a placard. The object is
simply to place in the Constitution a statement that the Commonwealth can come to
the assistance of a state if it should be required. We have, in the 52nd clause, handed
over naval and military defences to the Commonwealth Parliament. It might be fairly
25 argued that having done so the Common-wealth is bound to protect every state from
invasion from outside. Yet we have not considered it to be an inherent right of the states to
demand protection from invasion, and we have considered it necessary to embody in the
Constitution a clause providing that the Commonwealth shall protect every state from
invasion. If that is necessary in the case of an invasion of a warlike nature, surely it is
30 necessary to include in the Constitution a clause of a similar nature to protect every
state from financial disaster.

Mr. ISAACS.-A state might create its own liability to financial disaster; but it does not
create its liability to invasion by a foreign power.

Mr. LEWIS.-If the state creates its own difficulty, the Federal Parliament will have
35 it in its power to dictate the terms and conditions upon which alone it will me to the
aid of any state.

[start page 1113]

Mr. DOBSON.-You do not always punish the sinner, even the financial sinner.

Mr. LEWIS.-Of course, this power is only optional. It is left entirely to the good sense of
40 the Federal Parliament. As has been said over and over again in this Convention, we must
trust the Federal Parliament, but at the same time we must give that Parliament the
necessary powers to do what we desired it should do, and amongst these powers we
should give it a discretion to come to the financial aid of any state, whether that aid is in
the form of a guarantee of a loan or a direct loan, or whether it be the financial support of a
45 state which may be in embarrassed circumstances, and which may thereby endanger the
credit of the whole Commonwealth.

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And
Mr. OCONNOR.-But that money could not be spent upon any object the Federal
Parliament thought fit.

Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point.
5 I see that, according to the provision I have quoted, there is power given to the Federal
Parliament to borrow money on the credit of the Commonwealth, and I say again that I do
not know of any limitation of the expenditure of that money except the limitation which
would be specified in the Loan Act authorizing the borrowing of the money. Of course,
these words cover the raising of the money for the building of railways for instance, and in
10 such a case the limitation would be the terms of the Loan Act. But is there anything
anywhere to prevent a Loan Act being passed by the Federal Parliament authorizing the
raising of a certain sum of money, the proceeds of which loan might be divided according
to the terms of the Act among the states according to their needs, or upon some other
principle?
15 Mr. GLYNN.-The first three lines of clause 52 affect that point.

Mr. ISAACS.-The money must be expended with regard to "the peace, order, and
good government of the Commonwealth," not of the states.

Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-


The Parliament shall, subject to the provisions of this Constitution, have full power and
20 authority to make laws for the peace, order, and good government of the Commonwealth,
with respect to all or any of the matters following.

Well, that includes the borrowing of money.

Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow;
the money is only to be borrowed for the purposes of the Commonwealth.

25 Mr. REID.-Look at clause 81, where it is clearly set out that-

All revenues raised or received by the Executive Government of the Commonwealth,


under the authority of this Constitution, shall form one Consolidated Revenue Fund,
to be appropriated for the public service of the Commonwealth in the manner and
subject to the charges provided by this Constitution.
30 Mr. HOLDER.-With all due respect, I do not think that that clause applies.

Mr. REID.-Yes; it covers every appropriation issued from the Treasury.

Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.

Mr. REID.-You receive revenue, and you appropriate money for expenditure.
Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue
35 Fund," used in clause 81, shall include both revenue and loan money. We are surely
going to keep these two separate.

Mr. REID.-There is no provision of that sort.


And

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Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the
mind of the statistician and the financier more than to the mind of a humble layman, and I
am sure that if there is one member of this Convention competent to solve the problem of
capitalizing a financial discrepancy it is Mr. Walker. However, I have pointed out what
5 seems to me to be the difficulty to which Mr. Henry has addressed his amendment, and I
feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
condition of things after the expiration of the five years, is absolutely without force as
applied to the condition of things to which Mr. Henry's amendment is directed. But I go
further than that, and I take up the view which was dealt with by Mr. O'Connor on the
10 broad ground-and that is the position to which I wish to direct the attention of members of
the Convention-of whether it is politic or right to introduce this amendment into the
Constitution. If this power is implied in the Constitution, then the amendment merely
asserts and makes absolutely clear a power which the Commonwealth might exercise
if the necessity arose. On the other hand, if it is not implied in the Constitution, it
15 seems to me that it is a power that ought to be in the Constitution, so as to enable the
Commonwealth to do what I believe it would be the disposition of the Federal
Parliament to do, namely, to come to the aid of any state which sought its interference
to protect that state from financial disaster or financial strait. I admit all the
possibilities on the two grounds put by Mr. Holder-that there is a possibility of this
20 provision leading to reckless financing on the part of the states, and also the other
ground that it imposes an obligation on the Commonwealth, and a difficulty with
which the Federal Parliament and the Federal Executive may have to deal. But those
two things do not seem to me to outweigh the advantage of having this power clearly
expressed in the Constitution, to enable the Federal Parliament to give that assistance
25 which might be absolutely essential to the stability and even to the existence of a
particular state. Now, I will suppose the case of a state in which such a condition of
things has arisen. But again, I say, I do not believe that such a condition of things
would ever occur in any of the states of this Commonwealth. Still, suppose a state got
into financial embarrassment, and there was a tendency towards, or a talk of,
30 repudiation, why should not the Federal Executive and the Federal Parliament, in the
interests of the Commonwealth, come to the assistance and relief of that state? Would
it not be infinitely better that the Commonwealth should exercise a power of that kind
than that it should allow a blemish to be put on the honour and good faith of the
entire Commonwealth, which would result from any one state repudiating its
35 obligations? I admit that there are disadvantages and inconveniences on the one side, but
on the other there is the great principle that it is the duty of the Commonwealth to maintain
the existence, the integrity, and the solvency of every state. And I do say that that is the
function of the Commonwealth.
Mr. REID.-Then it had better be put in the Bill, and let the people know what they are
40 doing. If they are going to enter into a contract of that sort, the people had better know it.

Mr. BARTON.-If you put that in the Bill, the Bill will be put out.

Mr. SYMON.-My honorable friends take a strong view of the matter.

Mr. REID.-Do you really think that if a state gets into any temporary embarrassment it is
not strong enough itself to make financial arrangements to relieve itself from its own
45 embarrassment? If there is a state in that condition I say it is a sort of partner that I do not
want to have.

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Mr. SYMON.-There is only one answer to the question of the right honorable member,
and that is, I do not believe there is any state which has not the resources and which has not
the disposition to meet its own engagements but I decline to assent to the proposition that,
by putting this into the Constitution, you are declaring that there are such states as are likely
5 to be placed in that position.
And
Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution.
The Constitution lays it down that the Commonwealth is to deal equally with all the
states whether it is in the matter of taxation, of bounties, or of trade, and we may as well
10 strike out the provision that all taxation shall be uniform throughout the Commonwealth
if we are to contemplate that after the taxation has been raised the proceeds may be handed
over to any one colony. The thing will not bear a moment's investigation, and I hope the
honorable member will not press his proposal to a division. It is a pity that the amendment
has been brought forward. There is no possibility, nor does any one contemplate the
15 possibility, of any of the states being in a worse financial position than they are in at the
present time. On the contrary, I believe that their financial position, good as it is now, will
be infinitely improved.
Again;
If that is necessary in the case of an invasion of a warlike nature, surely it is necessary
20 to include in the Constitution a clause of a similar nature to protect every state from
financial disaster.
.
What therefore must be very clear is that the financial aid to the States was seen as like the aid in
case of an attack upon a State. Protecting a State from financial disaster is obviously not
25 something like the commonwealth funding the repair of a municipal council town hall.
.
HANSARD 17-2-1898 Constitution Convention Debates
Mr. HOLDER (South Australia).-I expressed the opinion a few days since, in answer to
an interjection, that the insertion in the Constitution of any such provision as is now sought
30 to be inserted would be attended by the dangers that, in the first place, it might conduce to
reckless financing by the states, and, in the second place, would involve a very heavy
obligation upon the federal authority. And, at the same time, I said that I thought the
assistance which under such conditions would be required by a state was assistance which
in the very nature of the Constitution would have to be rendered by the federal authority.
35 .
The whole reading of the Hansard records of the Constitution Convention Debates clearly points
out to assistance to a State that is in financial difficulties and not some financial assistance to
whatever organisation is within a State.
.
40 HANSARD 17-2-1898 Constitution Convention Debates
Mr. ISAACS.-Higher up in the clause you will see that it says that, whatever is taken
over, the state is to "indemnify the Commonwealth."

Mr. HOLDER.-If the words I have quoted have the meaning which Mr. Reid says they
have, it disposes of my first point. My next point is that in clause 52, it is provided that the
45 Federal Parliament shall have the power of "borrowing money on the public credit of the
Commonwealth"; and there is no provision anywhere that I know of in this Constitution to
limit the expenditure of money so borrowed. There are limits to the expenditure of
revenue. It would be quite impossible during the five years to render special aid to, any
state under the clause we have agreed to to-day, because the revenue is appropriated. But
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the provision I have quoted deals with borrowed money, and I know [start page 1114] of
nothing in this Constitution which would limit or control the expenditure of borrowed
money except the Loan Act of the Federal Parliament which authorizes the loan.
Mr. ISAACS.-You are referring to paragraph (4) of clause 52?

5 Mr. HOLDER.-Yes.

Mr. OCONNOR.-But that money could not be spent upon any object the Federal
Parliament thought fit.

Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point.
I see that, according to the provision I have quoted, there is power given to the Federal
10 Parliament to borrow money on the credit of the Commonwealth, and I say again that I do
not know of any limitation of the expenditure of that money except the limitation which
would be specified in the Loan Act authorizing the borrowing of the money. Of course,
these words cover the raising of the money for the building of railways for instance, and in
such a case the limitation would be the terms of the Loan Act. But is there anything
15 anywhere to prevent a Loan Act being passed by the Federal Parliament authorizing the
raising of a certain sum of money, the proceeds of which loan might be divided according
to the terms of the Act among the states according to their needs, or upon some other
principle?
Mr. GLYNN.-The first three lines of clause 52 affect that point.

20 Mr. ISAACS.-The money must be expended with regard to "the peace, order, and
good government of the Commonwealth," not of the states.

Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-

The Parliament shall, subject to the provisions of this Constitution, have full power and
authority to make laws for the peace, order, and good government of the Commonwealth,
25 with respect to all or any of the matters following.

Well, that includes the borrowing of money.

Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow;
the money is only to be borrowed for the purposes of the Commonwealth.
Mr. REID.-Look at clause 81, where it is clearly set out that-

30 All revenues raised or received by the Executive Government of the Commonwealth,


under the authority of this Constitution, shall form one Consolidated Revenue Fund,
to be appropriated for the public service of the Commonwealth in the manner and
subject to the charges provided by this Constitution.
Mr. HOLDER.-With all due respect, I do not think that that clause applies.

35 Mr. REID.-Yes; it covers every appropriation issued from the Treasury.

Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.

Mr. REID.-You receive revenue, and you appropriate money for expenditure.

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Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue
Fund," used in clause 81, shall include both revenue and loan money. We are surely
going to keep these two separate.
Mr. REID.-There is no provision of that sort.

5 Mr. HOLDER.-Then I would suggest that words should be inserted in order to provide
that loan money and revenue shall be kept separate. I hope we shall have a Loan Account
and a Consolidated Revenue Account, and by no means mix up the two. I take it that
clause 81 does not refer to any loan fund at all, but simply to revenue. The term
"Consolidated Revenue Fund" defines it clearly. Of course, I am not expressing a legal
10 opinion in a chamber of lawyers such as this is. I should be unwilling to do that. I simply
rose with the object of putting forward these points with a view of obtaining a statement of
authoritative opinion in regard to them. It appears to me that the clauses I have mentioned
imply the possibility of some assistance being rendered to a state in difficulties. It
seems to me that, as no assistance could be rendered out of revenue, some assistance
15 might be rendered out of loans, or there might be a guarantee of a loan, [start page
1115] or some other way of rendering financial aid to a state that might be devised.
But I hope Mr. Henry will withdraw his motion, because to state the matter so
broadly as that the Commonwealth shall come to the aid of a state might, I am afraid,
lead to very serious reckless financing on the part of some states under some possible
20 conditions.

Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) has put the matter
with his usual clearness, and has very convincingly shown that at any rate there is very
considerable doubt as to the question which has been exercising our minds, as to whether it
would be an implied power in the Commonwealth to come to the assistance of a state in
25 financial straits. And, therefore, if the existence of the power is involved in doubt, it would
be exceedingly desirable that some provision-I do not say the provision moved by my
honorable friend, who is not wedded to the particular words of his amendment, or any
other-should be inserted, so as to make it clear that that power exists. Now, I was very glad
to hear Mr. Isaacs express his desire to eliminate from this discussion, although we may use
30 the word "insolvency," all idea of its being suggested that we contemplate the actual
insolvency of any particular state. We cannot discuss a subject like this without using
the common words "bankruptcy" and "insolvency," and if we have to speak of state
bankruptcy, or state insolvency, we do not mean to impute that any state of the
Commonwealth, under any set of circumstances, is likely to repudiate its obligations.

35 Mr. ISAACS.-Such a thing is absolutely impossible.

Mr. SYMON.-Therefore, while we use the terms "bankruptcy" and "insolvency" as


applying to a possible state of things which we wish to avert, it is not to be imagined
for a moment that we contemplate that such a state of things is going to exist, but we
mean that a state may be in such a condition of strait, or the Treasurer of that state
40 maybe in such a condition of administrative embarrassment, that it may be necessary
to have re-course to the Commonwealth for assistance in some shape or other. Now, I
also desire to say that I do not think it is necessary to determine, and it will be
impossible for this Convention to determine, whether or not this implied power exists
in the Constitution. There might be, and no doubt would be, a strong difference of
45 opinion upon the subject, and even if we, assembled here, were unanimous on the
subject, that fact would not assist the final determination of the question when the
exigency arose. But I agree with Mr. O'Connor that undoubtedly in the distribution of
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the surplus, and in dealing with the financial condition of the states, the
Commonwealth would be animated by a desire to see that the states were placed in a
position to meet all their engagements. The difficulty which Mr. Henry sees, and to
which he directs his amendment, is as to the condition of things during the five years'
5 interval-during the bookkeeping period-when there is an express appropriation of the
surplus moneys. During that time Mr. Henry fears it is possible, without mentioning any
particular colony, that the Treasurer of one of the states might be unable to see his way to
meet his public engagements.
Mr. REID.-He could adopt Mr. Walker's proposal for capitalizing discrepancies.

10 Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the
mind of the statistician and the financier more than to the mind of a humble layman, and I
am sure that if there is one member of this Convention competent to solve the problem of
capitalizing a financial discrepancy it is Mr. Walker. However, I have pointed out what
seems to me to be the difficulty to which Mr. Henry has addressed his amendment, and I
15 feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
condition of things after the expiration of the five years, is absolutely without force as
applied to the condition of things to which Mr. Henry's amendment is directed. But I go
further than that, and I take up the view which was dealt with by Mr. O'Connor on the
broad ground-and that is the position to which I wish to direct the attention of members of
20 the Convention-of whether it is politic or right to introduce this amendment into the
Constitution. If this power is implied in the Constitution, then the amendment merely
asserts and makes absolutely clear a power which the Commonwealth might exercise
if the necessity arose. On the other hand, if it is not implied in the Constitution, it
seems to me that it is a power that ought to be in the Constitution, so as to enable the
25 Commonwealth to do what I believe it would be the disposition of the Federal
Parliament to do, namely, to come to the aid of any state which sought its interference
to protect that state from financial disaster or financial strait. I admit all the
possibilities on the two grounds put by Mr. Holder-that there is a possibility of this
provision leading to reckless financing on the part of the states, and also the other
30 ground that it imposes an obligation on the Commonwealth, and a difficulty with
which the Federal Parliament and the Federal Executive may have to deal. But those
two things do not seem to me to outweigh the advantage of having this power clearly
expressed in the Constitution, to enable the Federal Parliament to give that assistance
which might be absolutely essential to the stability and even to the existence of a
35 particular state. Now, I will suppose the case of a state in which such a condition of
things has arisen. But again, I say, I do not believe that such a condition of things
would ever occur in any of the states of this Commonwealth. Still, suppose a state got
into financial embarrassment, and there was a tendency towards, or a talk of,
repudiation, why should not the Federal Executive and the Federal Parliament, in the
40 interests of the Commonwealth, come to the assistance and relief of that state? Would
it not be infinitely better that the Commonwealth should exercise a power of that kind
than that it should allow a blemish to be put on the honour and good faith of the
entire Commonwealth, which would result from any one state repudiating its
obligations? I admit that there are disadvantages and inconveniences on the one side,
45 but on the other there is the great principle that it is the duty of the Commonwealth to
maintain the existence, the integrity, and the solvency of every state. And I do say that
that is the function of the Commonwealth.

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Mr. REID.-Then it had better be put in the Bill, and let the people know what they
are doing. If they are going to enter into a contract of that sort, the people had better
know it.
And
5 Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution.
The Constitution lays it down that the Commonwealth is to deal equally with all the
states whether it is in the matter of taxation, of bounties, or of trade, and we may as well
strike out the provision that all taxation shall be uniform throughout the Commonwealth
if we are to contemplate that after the taxation has been raised the proceeds may be handed
10 over to any one colony. The thing will not bear a moment's investigation, and I hope the
honorable member will not press his proposal to a division. It is a pity that the amendment
has been brought forward. There is no possibility, nor does any one contemplate the
possibility, of any of the states being in a worse financial position than they are in at the
present time. On the contrary, I believe that their financial position, good as it is now, will
15 be infinitely improved.
.
What should be clear from this is that any assistance rendered by the Commonwealth then the
States must indemnify or otherwise provides certain guarantees to the commonwealth.
It also should be kept in mind that while Section 96 is not covered under Section 51, as was made
20 clear
QUOTE
Mr. ISAACS.-The money must be expended with regard to "the peace, order, and
good government of the Commonwealth," not of the states.
END QUOTE
25 As such any monies raised by taxes, etc, are within the terms of Section 51 and therefore unless
there is a specific loan under a loan act to aid a State from financial distress the monies otherwise
raised/collected by the Commonwealth only can be used for powers within Section 51 and 51 of
the Constitution, as the framers of the constitution indicated “to protect that state from
financial disaster or financial strait”. As such, I for one do not accept that the commonwealth
30 nilly willy can spend the monies raised as it desires and in fact by granting municipal councils
monies without any State involvement then somehow the States nevertheless can be robbed of
this monies to which they ordinary are entitled upon.
.
Commonwealth of Australia Constitution Act 1900 (UK)
35 94 Distribution of surplus
After five years from the imposition of uniform duties of customs,
the Parliament may provide, on such basis as it deems fair, for the
monthly payment to the several States of all surplus revenue of the
Commonwealth.
40 .
It should be kept in mind that the more the Commonwealth taxes taxpayers the more the taxpayer
is burdened with overall taxation and duties to both the State and Commonwealth.
The more money the Commonwealth squanders monies the less money States receive and the
more the States themselves need to raise monies to make up for their financial planned
45 expenditure.
.
The question is if the High Court of Australia was right to argue that the Commonwealth through
Section 96 of the Constitution could make unconstitutional demands?

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I reject such nonsense as it must be clear from the following also that to allow for this the entire
set up of principles and provisions embedded in the Constitution would be erodes as the
Commonwealth pleases. The danger is that if you then were to get another Hitler into power he
could use this Section 96 as to basically having taxed taxpayers out of existence then hold the
5 States over a barrel, so to say, by making unconstitutional demands as to force them to hand
over State powers without any referendum to approve of this. The Commonwealth could simply
wipe out the States altogether and then turn the Commonwealth of Australia into some
dictatorship.
The building blocks for this already have been put in place by the assistance of politicians of all
10 kinds of political parties and what I consider to be the treasonous conduct of the High Court of
Australia.
If we were to accept the argument of the High Court of Australia then nothing would stop the
Commonwealth to simply stop any surplus being given back to the States and make it mandatory
that the Commonwealth decides how any monies granted within Section 96 is being used, etc.
15 As such, while the Commonwealth has no constitutional powers to interfere with state
employment contracts the Commonwealth simply could then dictate to the State that any funding
monies provided is under the condition that the States hand over their industrial relations
legislative powers. From there on the Commonwealth could nibble away time and again the next
source of power and turn a federation into a confederation.
20 .
The aim to fund municipal councils obviously will be to divide and conquer as the more
participants, some about 565 of them rather then a mere 6 State Premiers the less likely will there
be any opposition to whatever the Commonwealth plans.
Once the Commonwealth has achieved total annihilation of the States by creating a
25 confederation it then can dismantle the so called Australian Council of Local Government.
Within what constitutional powers did the Commonwealth have the legislative powers to create
the Australian Council of Local Government?
.
Or is it that what constitutional limitations are embedded in the Constitution no longer are
30 relevant to whomever is elected?
.
HANSARD 17-2-1898 Constitution Convention Debates
Mr. BARTON.-This is merely a matter of benevolence to the other colonies.

Mr. DOUGLAS.-Of course, New South Wales has her land revenue; but her
35 representatives need not boast. Tasmania will be all right in the end. The honorable
member (Mr. Holder) has made some excellent speeches during the sittings of the
Convention, but his last speech was the worst I ever heard. He said-"I do not know what the
opinion of the lawyers may be on this subject, but I cannot find any particular reason for
this provision. I think there are so many things which will lead to extravagance." How can
40 the insertion of this provision lead to extravagance? Will a state run into debt simply to
be relieved of its indebtedness?
.
What must be clear is that the funding which Kevin Rudd PM allows for is not as to fund States
in dire straits of finances but rather his way of spending moneys ill begotten from taxpayers. It is
45 not spending monies for the whole of the Commonwealth but for repairing municipal council
buildings, etc, nothing to do with the Commonwealth.
In fact the monies can be used as municipal councils desire provided they are new projects, yet
must be allegedly be where the municipal council itself also pay a large part towards the project.

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With Banyule City Council having had its June 2008 budget it means that the monies needed to
be allocated before end June 2009 and used before September 2009 cannot be wisely used as it
means that somehow Banyule City Council would be obligated to approve in its next budget
projects that also must be paid for before the end of September. This is a receipt for disaster as
5 even the long planned Greensborough project could not be managed to be planned appropriately,
such as even simple issues such as temporary car parking facilities.
.
HANSARD 19-4-1897 Constitution Convention
Mr. CARRUTHERS:
10 Mr. Barton first of all recites Dicey to show what occurs under the unwritten
Constitution of England. But here we are framing a written Constitution. When
once that Constitution is framed we cannot get behind it.
Again;
QUOTE
15 When once that Constitution is framed we cannot get behind it.
END QUOTE

Therefore the Commonwealth can only finance matters within its constitutional powers and only
for so far it doesn’t offend any constitutional embedded principle.
20 In my view how the Commonwealth is spending taxpayers monies is an utter disgrace, not just
because of the 18 November 2008 $300 million to municipal councils in an unconstitutional
manner but also how it spend monies to build schools, police stations etc, not in the
Commonwealth of Australia but in foreign nations for which the framers of the constitution made
clear there is no legislative powers to do so. They are not “annual service” expenditure to
25 maintain Departments, yet the Commonwealth is funding this from monies otherwise allocated to
various Departments as now the Commonwealth budget such kind of expenditure as being for the
annual services of a Department even so it is not and cannot be because it is not a ordinary cost
to a Department.
.
30 HANSARD 9-2-1898 Constitution Convention Debates
Mr. HIGGINS.-No, because the Constitution is not passed by the Parliament.
.
HANSARD 17-2-1898 Constitution Convention Debates
Mr. OCONNOR.-
35 We must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
to it.
.
40 HANSARD 1-3-1898 Constitution Convention Debates
Mr. GORDON.- The court may say-"It is a good law, but as it technically infringes
on the Constitution we will have to wipe it out."
And
Mr. BARTON.- The position with regard to this Constitution is that it has no
45 legislative power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
.
HANSARD 2-3-1898 Constitution Convention Debates
Mr. REID.-I suppose that money could not be paid to any church under this
50 Constitution?

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Mr. BARTON.-No; you have only two powers of spending money, and a church
could not receive the funds of the Commonwealth under either of them.
.
Therefore, Section 96 cannot be used to fund religion in any manner, directly or indirectly and
5 the High Court of Australia has no constitutional powers to amend the Constitution to allow for
this by way of its judgments.
.
The following is part of a submission that eventually on 19 July 2006 was before the County
Court of Victoria and the Crown didn’t in any way whatsoever challenge this submission and the
10 Court unreservedly upheld my cases against the Crown!
.
QUOTE 061115 ADDRESS TO THE COURT
Only the people of Australia themselves can vote for some form of independence, and in
the last Referendum the option of a republic was soundly defeated. Hence, any attempt to
15 by some back door manner achieve the same must be rejected as a constitutional absurdity.
The moment it is accepted that it was within the powers of the State and the
Commonwealth of Australia to provide for the Australia Act 1986 and to then accept as if
this is the new constitution, then by this one accepts that they can replace this purported
Australia Act 1986 with any other purported Constitution of whatever terms they desire
20 and also then again repeal the now purported Australia Act 1986. The High Court of
Australia is already on record that the Commonwealth of Australia can make
unconstitutional demands upon the States, where the Commonwealth if provided funding
within Section 96 of the Constitution, a matter that is ridiculous as the Framers of the
Constitution made clear this is not possible, then what would stop then the Commonwealth
25 of Australia to use financial blackmail to force the State to agree to whatever alternative
version of Constitution it demands? This kind of dictatorship should never be allowed and
by some back door way created! The power and should always be granted to the
Commonwealth from the States not enforced the other way around.
Anyone who had studied the Constitution Convention Debates (Official Record of the
30 Debates of the National Australasian Convention) would be well aware that Section 51,
and so its subsections, never intended and neither contemplated to allow some creation of
an alternative Constitution, regardless if identical in wording, but to alter the application of
the Constitution. Indeed, where the Constitution itself provides for “Until the Parliament
otherwise provides” and this being only in limited area’s, then it must be clear that without
35 a Referendum the Commonwealth of Australia, regardless if the States agree with it, cannot
replace it and/or alter its application without Section 128 Referendum. As Barton made
clear that regardless if the States and the Commonwealth agreed it still would require to be
approved by a Referendum! Therefore, the purported Australia Act 1986 remains ULTRA
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VIRES as it was never approved by way of Section 128 Referendum! Neither is it within
the powers of the High Court of Australia to declare this legislation INTRA VIRES, as the
High Court of Australia was created to interpret the intentions of the Framers of the
Constitution and not to somehow implement their own contemporary views as an
5 alternative!
END QUOTE 061115 ADDRESS TO THE COURT
.
QUOTE 20-2-2007 correspondence to John Howard
Basically, if Queensland, NSW, Victoria and South Australia were to refer legislative
10 powers to the Commonwealth of Australia then the Commonwealth of Australia has to
recoup the billions of dollars by charging those four States a special levy. Now, I view that
the electors of those States should be made aware of this!
It is because of the reference of legislative powers that this come about, whereas if the
States retain their legislative powers and the Commonwealth of Australia, say, within
15 Section 96 of the Constitution, then the Commonwealth of Australia could set conditions,
albeit they must not go beyond any other powers set out in the Constitution (as the Framers
of the Constitution made clear) and as such the Commonwealth of Australia could insist,
for example, that the 10 BILLION DOLLARS are provided progressively pending
completion of certain targets, such as exist in Victoria when one has to pay a builder only
20 progressively as a house is being build.
END QUOTE 20-2-2007 correspondence to John Howard
.
QUOTE 20-2-2007 correspondence to John Howard
What ought to be clear is that Section 96 grands can be facilitated only regarding issues
25 where the States have legislative powers. After all, if the Commonwealth of Australia has
legislative powers it does not need to make grands. And, if the Commonwealth of Australia
were to obtain legislative powers it might well be that the entire WATER issue could get
worse, rather then better.
END QUOTE 20-2-2007 correspondence to John Howard
30 .
QUOTE 11-9-2005 correspondence Barnaby Joyce
Date: Sun, 11 Sep 2005 18:41:17 +1000
From: "G. H. SCHOREL-HLAVKA" <INSPECTOR-RIKATI@SCHOREL-
HLAVKA.COM>
35 Subject: Telstra issue, etc
To: senator.joyce@aph.gov.au
Cc: inspector-rikati@schorel-hlavka.com

40 Barnaby,

In my past correspondence I indicated you would be deceived,


and it seems you were.

45 While John Howard seem to "personally" guarantee 2 billion,


then again, what if he is, so to say, run over by b a bus
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tomorrow. Where are you then?

END QUOTE 11-9-2005 correspondence Barnaby Joyce


.
5 And (consider the word “attaché” should be read as “attached”);
QUOTE 11-9-2005 correspondence Barnaby Joyce
What we need is to get the Commonwealth of Australia getting
back on track to operate within constitutional limits.

10 Constitutionally, any surplus is to be returned to the


States, but what we see is that Section 96 is being abused to
use the surplus in other ways as to blackmail the states to
give in to the dictatorship of the Commonwealth of Australia.
That is precisely that needs to be stopped, so that States
15 get the surplus without strings attaché.
END QUOTE 11-9-2005 correspondence Barnaby Joyce
.
QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
WITHOUT PREJUDICE
20 Committee Secretary 13-2-2006
Senate Legal and Constitutional Committee
Department of the Senate, Parliament House
Canberra ACT 2600, Australia
Phone +61 2 6277 3560, Fax +61 2 6277 5794
25 Email legcon.sen@aph.gov.au
END QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
.
QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
After all, the High Court of Australia it self is on record (albeit it was a ill conceived judgment)
30 that the Commonwealth of Australia can make unconstitutional demands in regard of Section 96
fundings. While such a judgments is clear and utter stupidity and only underlines the
incompetent of the judges not to comprehend the intentions of the Framers of the Constitution,
the problem is that by being on the records, any religious group who were to come into power
could use this kind of a judgment then to benefits its religion and turn this nation into some
35 religious fanatic nation. It is for this that we must not allow current political leaders to continue
their destruction of constitutional provisions and limitations as we are setting up for others to do
the same. And then the consequences will be likely to the extreme.
The Framers of the Constitution crafted an art work with the Constitution that albeit may have
certain problems, such as Section 51xxvi) it is a remarkable declaration of rights.
40 While the Framers held that no Constitution was like that of the Constitution they were creating,
since then the Singaporean and Indonesian constitution in some respects have far better
provisions.
The Singaporean constitution includes;

QUOTE
45 Part VA;
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"existing law" means any law having effect as part of the law of Singapore immediately
before the commencement of this Constitution;

END QUOTE

5 QUOTE

"law" includes written law and any legislation of the United Kingdom or other enactment
or instrument whatsoever which is in operation in Singapore and the common law in so far
as it is in operation in Singapore and any custom or usage having the force of law in
10 Singapore;

END QUOTE

While the same is applicable to the Commonwealth of Australian Constitution Act 1900 (UK) it
is generally ignored or not realised.
15

QUOTE
Equality.
12. --(1) All persons are equal before the law and entitled to the equal protection of the law.

QUOTE

20 QUOTE
Liberty of the person.
9. --(1) No person shall be deprived of his life or personal liberty save in accordance with
law.
(2) Where a complaint is made to the High Court or any Judge thereof that a person is
25 being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied
that the detention is lawful, shall order him to be produced before the Court and release
him.
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his
arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
30 (4) Where a person is arrested and not released, he shall, without unreasonable delay, and
in any case within 48 hours (excluding the time of any necessary journey), be produced
before a magistrate and shall not be further detained in custody without the magistrate’s
authority.
16/84.
35 (5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for
contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.
[M5
28/86.
(6) Nothing in this Article shall invalidate any law —
40 (a) in force before 16th September 1963 which authorises the arrest and detention of any
person in the interests of public safety, peace and good order; or
(b) relating to the misuse of drugs or intoxicating substances which authorises the arrest
and detention of any person for the purpose of treatment and rehabilitation,

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by reason of such law being inconsistent with clauses (3) and (4), and, in particular,
nothing in this Article shall affect the validity or operation of any such law before 10th
March 1978.

END QUOTE
5
In Australia this is also applicable (UNWRITTEN PART OF THE CONSTITUTION,
Constitution Convention Debates) but tell this to Vivian Solon the alleged Asian sex worker,
that her Australian nationality in the end had no meaning neither her ill health but only how she
was Asian looking to deny her any equality and rightful treatment ACCORDING TO LAW!
10 QUOTE
Commonwealth citizenship.
139. --(1) In accordance with the position of Singapore within the Commonwealth, every
person who is a citizen of Singapore enjoys by virtue of that citizenship the status of a
Commonwealth citizen in common with the citizens of other Commonwealth countries.
15 (2) Any existing law shall, except so far as Parliament otherwise provides, apply in relation
to a citizen of the Republic of Ireland who is not also a Commonwealth citizen as it applies
in relation to a Commonwealth citizen.
END QUOTE

20 It may be noticed that Commonwealth citizenship is not “Commonwealth nationality” but refers
to people who are a “citizen” of a Commonwealth country regardless of their nationality.

Unless the committee is open minded and accepting that the Australian Citizenship Act 1948
was based on LEGAL FICTIONS and wrongly titled and beyond constitutional powers
25 defining/declaring citizenship we will simply continue a lot of rot and by this invite others to use
whatever method they may contemplate to use to resolve the issued we ourselves stubbornly
refuse to rectify.
“AUSTRALIAN CITIZENSHIP” is not “nationality” but can only be obtained
AUTOMATICALLY by obtaining “STATE CITIZENSHIP” and citizens are entitled to be
30 protected against any Commonwealth of Australia interference, including of the Australian
Federal Police, while they are within State legal jurisdiction!
MAY JUSTICE ALWAYS PREVAIL®
Awaiting your response, G. H. SCHOREL-HLAVKA
END QUOTE 13-2-2006 correspondence Senate Legal and Constitutional Committee
35 .
There is no doubt that the Commonwealth could take over land taxes from the states and other
money raising avenues as to so to say bleed the States dry of any revenue and then force the
States to capitulate and hand over its various legislatives powers to the Commonwealth, as time
goes bye to finish of the States. But before those in who’s favour a confederation would be
40 clapping their hands on this prospect, the Commonwealth once having achieved this then could
nullify the Australian Council of Local Government upon the basis it has no constitutional
validity.
Now consider the unlimited powers of those then in the Federal Government.
.
45 While the climate and temperatures of area’s differ from State to State and for this different
building practices are required, the commonwealth under the principle to legislate for the “whole
of the Commonwealth” would issue its regulations and regardless how inappropriate it might be
to build a residence as such in a certain area, the right and interest of local communities will no
linger exist. Are we then having to start all over as occurred when NSW originally was before it
50 was divided in different colonies?
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.
Commonwealth of Australia Constitution Act1900 (UK)
Chapter IV—Finance and Trade
96 Financial assistance to States
5 During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State
on such terms and conditions as the Parliament thinks fit.
.
10 We also have;

83 Money to be appropriated by law


No money shall be drawn from the Treasury of the Commonwealth
except under appropriation made by law.
15 But until the expiration of one month after the first meeting of the
Parliament the Governor-General in Council may draw from the
Treasury and expend such moneys as may be necessary for the
maintenance of any department transferred to the Commonwealth
and for the holding of the first elections for the Parliament.
20 .
Therefore any monies to be granted by the Commonwealth must be subject to an Appropriation
Bill, including the claimed $300 million Kevin Rudd PM on 18 November 2008 claimed to give
the Municipal councils.
As I have already set out previously, Appropriation Bills and Taxation Bills must be dealt with
25 together prior to the commencement of the financial year.
As I understand it Hitler gained more and more power by fooling people that he was going to
help them, such as the gay people, but once he got the power he went against them.
The Commonwealth has clearly ulterior motives as to intervene with what is essential State
internal matters as to how municipal councils are funded and the manner in which they can do so.
30 .
FEDERAL GOVERNMENT/CENTRALISED GOVERNMENT
.
Versus
.
35 STATE GOVERNMENT/LOCAL GOVERNMENT
.
Versus
.
MUNICIPAL COUNILS/LOCAL GOVERNMENT
40 .
While in today’s language when we refer to “LOCAL GOVERNMENT” we refer to “LOCAL
COUNCILS” rather then “MUNICIPAL COUNCILS” constitutionally (considering the
Commonwealth of Australia Constitution Act 1900 (UK) we have a “CENTRALISED
GOVERNMENT” with a “FEDERAL PARLIAMENT” and a “LOCAL GOVERNMENT”
45 with a “STATE PARLIAMENT”.
When one refers to the Federation and State Governments then “LOCAL GOVERNMENT”
refers to State Governments. When we refer to internal State matters then “LOCAL
GOVERNMENT” is “MUNICIPAL COUNCILS” being “LOCAL GOVERNMENTS”.
.

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When dealing with the TWO levels of Governments, being Federal and State Governments, then
the de facto third level of Government “MUNICIPAL COUNCILS” is not to be taken as a level
of Government.
.
5 It must be clear that the Commonwealth of Australia has no constitutional powers to alter State
legislative powers/boundaries, etc at its own will. However, States can alter “MUNICIPAL
COUNCILS” boundaries as much as it likes. No referendum is needed for this.
Local councils are not true Governments but delegated bodies that act as a Government under the
authority of a State Government. However, State Governments do not act under the Authority of
10 the Federal Government, rather that the Federal Government acts under the authority of State
Governments.
The Federal Government cannot take anything from the States that the States doesn’t want to
give on legislative powers, whereas the States (subject to a Section 123 of the Constitution State
referendum) can and it desire hand over whatever legislative powers it has, to the Federal
15 Government.

Take for example the issue of “CITIZENSHIP”. Neither the Commonwealth of Australia or
“MUNICIPAL COUNCILS” have legislative powers as to declare/define “CITIZENSHIP”. It
is and remains to be a constitutional power reserved for the State Parliaments. See also Hansard
20 2-3-1898 Constitution Convention Debates. Hence the Australian Citizenship Act 1948 for so
far it purports to define/declare “CITIZENSHIP” is ULTRA VIRES.
To abolish State governments would mean that such powers would have to be handed over to
either a Federal Parliament or to “MUNICIPAL COUNCILS”.
Obviously “MUNICIPAL COUNCILS” could not deal appropriately with this and a Federal
25 government would not be able to deal with this appropriately. Why you may ask? Because
“CITIZENSHIP” relates to a persons POLITICAL STANDING. To hand “CITIZENSHIP”
over to the Commonwealth of Australia would be basically to vandalise the very protection’s
build in the Commonwealth of Australia Constitution Act 1900 (UK).
This correspondence cannot set out in an elaborate manner all that is relevant to this, but those
30 interested can always read my various books published in the INSPECTOR-RIKATI® series.
The usage of the term “local government” during the Constitution Convention Debates were
in general referring to State Governments, below some examples.

WE EITHER HAVE A CONSTITUTION OR WE DON’T!


35
The Federal Government cannot have it both ways, argue it has constitutional rights to
implement certain legislation and on the other hand ignore constitutional constrains when it
doesn’t suit it.

40 What is badly needed and well overdue is the creation of an OFFICE OF THE GUARDIAN, a
constitutional council, that advises the Government, the People, the Parliament and the Courts as
to constitutional powers and limitations.
Currently there is to much nonsense going on where even judges do not even comprehend
constitutional limits and fancy themselves to amend the Constitution by backdoor manner
45 (judgments) while those politicians in the Parliament know next to nothing as to what is
constitutionally permissible or not.

Lets get realistic and before anyone comes up with what is wrong with any government level let
them first learn what is constitutionally applicable. After all, if they have it wrong from onset and
50 do not comprehend how matters are constitutionally then what are they talking about?

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Please note the comments below.
DEBATES OF THE CONFERENCES (OFFICIAL RECORD.)
MONDAY, FEBRUARY 10, 1890.
Mr. DEAKIN.-
5 I believe, by the Bill which will shortly grant Western Australia the local government which
all Australasia has long wished her, to confine the new colony to the territory south of the
26th parallel, while the territory north of that is to be governed by Western Australia under the
control of Ministers in England.
And
10 Mr. DEAKIN.-
With regard to work which might be better done by a Federal Government than by the
separate Governments of the colonies, it is questioned whether, when the Convention comes
to consider all the issues raised (which I do not enter into), it will not be decided that the
larger part of the work should be left to the local Governments. It is argued that public
15 works, for instance, would be more satisfactorily carried out by the local Governments than
by a Government more removed.
And
Mr. DEAKIN.-
But what is clearer is, that the great cable and mail lines between this continent and the old
20 world would inevitably pass under the control of the Federal Government. There is one land
line already across the continent of Australia, which it might be necessary to hand over to the
Central Government, And there is a cable projected towards North America, which will
greatly affect the interests of the inhabitants of Australasia and the Pacific islands and our
countrymen across the sea.
25 And
Mr. DEAKIN
Leaving these details, which I have only ventured to touch upon in a fragmentary way, and
sympathizing with the strong stand made by Mr. Playford on the supposition that the powers
and privileges of the different local Governments were to be assailed, and being as prepared
30 as he is to do my utmost in their defence, I believe that we would act idly unless we admitted
from the first that in the creation of a Federal Legislature and a Federal Executive we meant
them to be the organs of a Sovereign state-a state which would not be a figment or shadow,
nor exist only on the sufferance of the local Parliaments, but which would draw its authority
straight from the people of the different colonies, obtaining from them the plenary powers to
35 be exercised by it within certain limits. The great lesson taught by Mr. Bryce in his
magnificent work is that the strength of the United States Government lies in this, that
although it is a Federal Government, under which each State of the Union is theoretically and
actually independent in respect to all concerns of local life and legislation, it has
nevertheless sovereign authority in that it is gifted with powers which act directly and
40 immediately on every citizen of the entire country. It is not dependent on any state for one
cent of its revenue, nor upon state officers for any act of administration , nor upon State
Courts for any decision in its favour. Except that the state legislators elect the members of
the Senate there is no connexion between the states and their Central Government. The
Union is not concerned to have their support, nor does it seek their aid for the forces it
45 maintains. It is a Sovereign state acting directly, without any intermediary, upon the
citizens from which it springs. (Hear, hear.) I am glad that view is concurred with. I am glad
to think that we shall see a Sovereign state in Australasia which will be able to act directly
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through its judiciary, and in other ways, on every citizen within its borders, and be in every
respect and in all its powers the equal of any state in the world. Were we to aim at crippling,
maiming, or enfeebling the local Legislatures, we would aim at doing something not only
wholly unnecessary for our purpose, but something which would actually injure the Federal
5 Government we are seeking to establish. There should be and must be nothing antagonistic
between a Federal Government supreme in its sphere and local Governments supreme in
their spheres. It is perfectly true that there must be a division of authority, that some of the
powers of the local Governments will have to be transferred to the Federal Government, but
the judges of the powers to be given to either body must not be either the local Governments
10 with their jealousies, or the Central Government with its ambitions. The judgment must come
from those whom both exist only to serve-from the people themselves. So far both the local
and central authorities must be regarded as on the same platform, because as it is in the
national interest that there should be a differentiation of the powers of Government into
central and local Governments so in settling that division only national interests ought to
15 be considered. What we have to study is how to give the central authority all the powers
which can be best exercised by such a body to the distinct advantage of the whole of the
people. Those powers it ought to have; but it is not to be [start page 27] entitled to acquire
them in such a way as would enfeeble the different local Governments, on whose healthy life
its successful existence must largely depend. As well might it be attempted to enfeeble
20 municipal institutions in order to aggrandize Parliament, the fact being that parliamentary
Government depends very much for its smooth and easy working upon the smooth and easy
working of the minor local bodies. There are an infinite number of issues which no
central Parliament could deal with, but which necessarily belong to the local Legislatures,
and which they should be able to deal with in the present manner. For my part, I think we
25 should seek to strengthen the local Legislatures by every possible means. We should, as Mr.
Playford says, leave them every power it is possible for them to exercise in the interests of the
whole community. If more power can be given them for that purpose than is conceded
elsewhere, let it be granted, but let us give the Central Government just as emphatically a
full and unfettered power so far as the interests of the whole people demand it.
30 .
Hansard 5-3-1891 Constitution Convention Debates
Mr. PLAYFORD: And that it would be given back to the various local governments in
proportion to the population of their respective colonies. If we consider for a moment that
the federal government must have an executive, and will have to provide the necessary
35 payment for the federal forces, for the federal executive, and for various other matters, we
must see that they will have to derive a revenue in some way or other; and the most
difficult question, I think, which the members of the Convention will find, when they come
to deal with it, will be the adjustment of that financial part of, if I may so call it, the trouble
between the federal government on the one hand, and the local governments on the
40 other. It may be necessary that, in certain instances, we should be paid back by the federal
government a proportion of the money that we, as local governments, derive from
customs.
.
It must be very clear that therefore “Local Government” is constitutionally State Government
45 and the Commonwealth has no powers to interfere with its internal affairs.
.
Hansard 8-2-1898 Constitution Convention Debates
Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
50 Commonwealth is a prohibition against the exercise of such a power.
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.
Hansard 2-3-1898 Constitution Convention Debates
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
5 we are not going to make the Commonwealth a kind of social and religious power
over us.
.
And
Mr. BARTON.-
10 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.
.
Hansard Constitution Convention Debates
15 start page 1020] I think that we ought to be satisfied on these points, and satisfied that
if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
.
20 HANSARD 27-1-1898 Constitution Convention Debates
Mr. SYMON.-
The relations between the parties are determined by the contract in the place where it
occurs.
And
25 Sir EDWARD BRADDON (Tasmania).-
We have heard to-day something about the fixing of a rate of wage by the federal
authority. That would be an absolute impossibility in the different states.
And
Mr. BARTON: If they arise in a particular State they must be determined by the
30 laws of the place where the contract was made.
And
Mr. BARTON.-We do not propose to hand over contracts and civil rights to the
Federation, and they are intimately allied to this question.
And
35 Sir JOHN DOWNER.-
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.
.
40 HANSARD 31-1-1898 Constitution Convention Debates
Mr. SOLOMON.- We shall not only look to the Federal Judiciary for the protection
of our interests, but also for the just interpretation of the Constitution:
.
In my view, I have to conclude that the Commonwealth has no constitutional powers to create
45 some kind of Australian Council of Local Government and neither to fund its meeting at
Canberra or to give it any funding such as the $300 million as clearly the state had no input in
this and as such it cannot be deemed to fall within Section 96 as this only relates to State who are
in financial difficulties and seek financial assistance.
Regardless what the High Court of Australia otherwise may try to make out of Section 96 and its
50 application, I view it is not for the judges to circumvent the rights of the public by using some

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backdoor manner to amend the Constitution or alter its application in any way. It can only
interpret the Constitution as was intended by the Framers of the Constitution and the funding of
anything without a specific request of the States in regard of its own financial problems, if there
are/were any cannot be condoned. The Constitution must never be allowed to be corrupted in
5 such manner as soon or later such kind of conduct may play in the hands of another would be
dictator being called Hitler or otherwise.
.
1. Deputy Federal Commissioner of Taxation v W R Moran Pty Ltd ("Flour Tax case")
[1939] HCA 27; (1939) 61 CLR 735 (25 July 1939) (From High Court of Australia; 25
10 July 1939; 168 KB)

QUOTE Latham C.J

The defendant further objects that the provisions for grants to States are invalid because the
Minister, and not the Commonwealth Parliament, determines the amount and the conditions
of the grants. Thus, under sec. 7 of the Wheat Industry Assistance Act, the Minister, after
15 the first year, determines the amount to be received by the States, and the Minister must
approve the method of distribution of moneys for transferring distressed wheat farmers
from unsuitable land (sec. 7 (5)). Further, under sec. 10, the Governor-General may
suspend payment altogether in certain events, and under sec. 14 the Minister, subject to a
maximum limit, determines the amount to be paid to Tasmania.

20 In my opinion, none of these objections, even if well founded as objections to the validity
of these sections, could affect the validity of the taxation Acts. Even if the provisions as to
the distribution of the funds established under the Wheat Industry Assistance Act were
invalid, that invalidity would affect only the expenditure of moneys under that Act, and not
the collection of moneys under the various flour taxation Acts. Although the Acts are all
25 directed towards the assistance of wheat farmers, and in a readily intelligible sense form
part of one scheme, there is nothing to show that Parliament intended that the tax should
not be collected if any of the provisions for expenditure of money out of the consolidated
revenue fund, augmented by the proceeds of the tax, should prove to be invalid. An
analogous case may be suggested. Parliament might provide by an appropriation Act for the
30 expenditure of, let it be supposed, a certain proportion of the moneys collected by way of
income tax. If those provisions for appropriation were invalid, I do not think that it could be
contended that therefore the whole or any part of the income taxation legislation of the
Commonwealth was invalid.

But, in the second place, the objections are, in my opinion, not well founded. The grants
35 made by the Wheat Industry Assistance Act are made by virtue of the power conferred on
the Commonwealth Parliament by sec. 96 of the Constitution, which is as follows: "During
a period of ten years after the establishment of the Commonwealth and thereafter until the
Parliament otherwise provides, the Parliament may grant financial assistance to any
State on such terms and conditions as the Parliament thinks fit." The words of this section
40 show that Parliament may grant financial assistance to a single State under this power
and may therefore discriminate between States in making grants. They also show that the
Parliament has the fullest power of fixing the terms and conditions of any grant made under
the section. Parliament does fix the terms and conditions of the grant if, by legislation, it
authorizes a Minister to determine such terms and conditions. It is too late now to argue
45 that terms and conditions determined by a Minister under such legislation are not
determined by the Parliament (Powell v. Apollo Candle Co.[12]; Baxter v. Ah Way[13];
Roche v. Kronheimer[14]; Victorian Stevedoring and General Contracting Co. Pty. Ltd.
and Meakes v. Dignan[15]; Radio Corporation Pty. Ltd. v. The Commonwealth[16]).
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Further, the case of Victoria v. The Commonwealth[17] (the Roads Case) is conclusive
against the defendant upon this point. It was there held, by a court of seven justices, that the
Federal Aid Roads Act 1926 was a valid enactment, "being plainly warranted by the
provisions of sec. 96 of the Constitution, and not affected by those of sec. 99 or any other
5 provisions of the Constitution"[18]. The Federal Aid Roads Act approved agreements
between the Commonwealth and the States for making roads under which payments were
made to the States "in such amounts at such times and subject to such conditions as the
Minister may from time to time determine." Other provisions of the agreements required
the Minister to be satisfied as to various matters before he was bound to make payments. It
10 was argued that "the terms and conditions referred to in sec. 96 must be terms and
conditions imposed by the Parliament itself and not terms and conditions fixed by executive
authority"[19]. This argument was rejected, and it must again be rejected in the present
case.
Sec. 96 is a means provided by the Constitution which enables the Commonwealth
15 Parliament, when it thinks proper, to adjust inequalities between States which may arise
from the application of uniform non-discriminating Federal laws to States which vary in
development and wealth. Discrimination is prohibited in laws with respect to taxation (sec.
51 (ii.). Bounties must be uniform (sec. 51 (iii.)). Laws or regulations of trade, commerce
or revenue must not give preference to one State or part thereof over another State or part
20 thereof (sec. 99). But these "equal" laws may produce very unequal results in different parts
of Australia. A uniform law may confer benefits upon some States, but it may so operate as
to amount to what is called "a Federal disability" in other States. Sec. 96 provides means
for adjusting such inequalities in accordance with the judgment of Parliament. That section
is not limited by any prohibition of discrimination. There is no general prohibition in the
25 Constitution of some vague thing called "discrimination." There are the specific
prohibitions or restrictions to which I have referred. The word "discrimination" is
sometimes so used as to imply an element of injustice. But discrimination may be just or
unjust. A wise differentiation based upon relevant circumstances is a necessary element in
national policy. The remedy for any abuse of the power conferred by sec. 96 is political and
30 not legal in character.

It was also objected that as the object of the provision in sec. 14 of the Wheat Industry
Assistance Act enabling the minister to grant special financial assistance to Tasmania was
to make it possible for Tasmania to refund the tax to Tasmanian taxpayers, the "real
purpose" of that Act was to make possible a discrimination between the States in breach of
35 sec. 51 (ii.) of the Constitution.

This objection is, in my opinion, met by what I have already said, namely, that the taxation
legislation of the Commonwealth does not discriminate between States, that appropriation
Acts of the Commonwealth are not subject to sec. 51 (ii.) of the Constitution, and that
legislation by the State of Tasmania is not subject to any limitation arising from that
40 section.

END QUOTE

And

QUOTE Starke J.
This form of imposing taxation was bad, so it was contended, because the Parliament could
45 not confer upon or delegate to any executive authority the function of determining the rate
of tax. But this contention has many times been considered in this court and always rejected
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for reasons that are stated in the cases of Victorian Stevedoring and General Contracting
Co. Ltd. and Meakes v. Dignan[31]: See also Roche v. Kronheimer[32] and Crowe v. The
Commonwealth[33].
The preamble, already mentioned, was referred to in support of an argument to the effect
5 that the flour taxes were imposed to provide financial assistance to the States and to ensure
wheat growers a payable price for wheat, but that the Parliament had not granted such
financial assistance. The argument was based upon the Constitution, sec. 96, which enacts
that Parliament may grant financial assistance to any State on such terms and conditions
as the Parliament thinks fit. The Wheat Industry Assistance Act 1938, No. 53, sec. 7 (2),
10 provides for payments to each State by way of financial assistance out of a fund into which
had been paid from consolidated revenue the amounts collected by way of flour taxes of
such amount, if any, as the Minister administering the Act (Acts Interpretation Act 1901-
1937, sec. 17) after advice from the State Minister determined. Substantially this contention
again asserts the proposition that Parliament cannot delegate its authority or confer upon an
15 executive authority the function of determining the amount of assistance that a State
requires. It is contrary to the decisions already mentioned, and also to the actual decision,
Victoria v. The Commonwealth[34]: See clause 2 (3) of the agreement scheduled to the
Federal Aid Roads Act 1926, No. 46. I would add that I am far from convinced that the
validity of the taxing Acts depends, in any way, upon the validity or effectiveness of the
20 grant of financial assistance to the States.

Much broader ground, however, was relied upon in support of the defence. It is said that the
scheme of the Acts already mentioned involves taxation which discriminates between the
States (Constitution, sec. 51 (ii.)), bounties on the production or export of goods which are
not uniform throughout the Commonwealth (Constitution, sec. 51 (iii.)) and preference to
25 the State of Tasmania over the other States contrary to sec. 99 of the Constitution: "The
Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give
preference to one State or any part thereof over another State or any part thereof."

The provisions of the various Acts may be summarized. The tax Acts impose the taxation
and the assessment Act provides for its assessment, collection and recovery. The Wheat
30 Industry Assistance Act 1938, No. 53, provides for the grant of financial assistance to the
States. A wheat industry stabilization fund is created into which is paid, out of the
consolidated revenue fund, all moneys collected under the assessment Act, sec. 5. Moneys
to the credit of the fund are applied in making grants of financial assistance to the States
(sec. 6). The whole amount paid into the fund, subject to the deduction of certain payments,
35 expenses and credits, is applied in making payments to the States of such amounts
respectively that there shall be paid to each State in respect of that year the amount which
bears to that total amount after the deduction has been made, the same proportion as the
quantity of wheat produced in that State during the year bears to the total quantity of wheat
produced in Australia during that year. Any amount so granted and paid to a State shall be
40 paid to the State upon condition that it is distributed to the wheat growers in that State in
proportion to the quantity of wheat sold or delivered for sale by each wheat grower during
the year in respect of which payment is made (sec. 6). Special accounts are kept in the fund,
called "Wheat Industry Special Account" and "Wheat Tax Account," and the amounts at
credit of those special accounts applied for purposes mentioned in accordance with the
45 determination of the Minister administering the Act: See secs. 6 (3), (4), (5), (7) and (8);
Acts Interpretation Act 1901-1937, sec. 17—the Minister.

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This court has decided that grants of financial assistance to the States may be made on such
terms and conditions as the Parliament thinks fit and are therefore unaffected by sec. 99 or
any other provision of the Constitution (Victoria v. The Commonwealth[35]).
END QUOTE
5 .
2. South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65
CLR 373 (23 July 1942) (From High Court of Australia; 23 July 1942; 242 KB)

QUOTE Latham C.J.


The Grants Act.—It is now necessary to deal with the far-reaching and fundamental general
10 objection which is made to the Tax Act considered in association with the other Acts, but
which is particularly directed against the Grants Act.

This objection is based upon the following principle which, it is argued, applies to all
Commonwealth legislative powers, namely—the Commonwealth cannot direct its
legislative powers towards destroying or weakening the constitutional functions or
15 capacities of a State. (A corresponding rule should, it is said, be applied in favour of the
Commonwealth as against the States.) In another form the principle is said to be that the
Commonwealth cannot use its legislative powers to destroy either "the essential
governmental functions" or "the normal activities" of a State.

Before considering sec. 4, which is the main provision of the Grants Act, reference may be
20 made to an objection to the validity of sec. 6. This section enables the Treasurer of the
Commonwealth, subject to a maximum limit to be stated in a recommendation of the
Commonwealth Grants Commission, to increase the grants to the States. It is objected by
the plaintiffs that this provision is not a valid exercise of the power given to the
Commonwealth Parliament to grant financial assistance to States under sec. 96 of the
25 Constitution, because it involves an unconstitutional delegation to the Treasurer of
legislative power. This objection, however, is answered by Deputy Federal Commissioner
of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[25].

The principal provision of the Grants Act is sec. 4, which is in the following terms: "In
every financial year during which this Act is in operation in respect of which the Treasurer
30 is satisfied that a State has not imposed a tax upon incomes, there shall be payable by way
of financial assistance to that State the amount set forth in the Schedule to this Act against
the name of that State, less an amount equal to any arrears of tax collected by or on behalf
of that State during that financial year."
Upon this provision the following preliminary comments may be made:—
35 (a)
The Act does not purport to repeal State income-tax legislation. The Commonwealth
Parliament cannot do this. It cannot repeal an Act which it has no power to enact: See
Attorney-General for Ontario v. Attorney-General for the Dominion[26]; Great West
Saddlery Co. v. The King[27]. Plainly the Commonwealth Parliament could not enact
40 separate income-tax Acts for separate States. Nor can it repeal such Acts enacted by the
States.
(b)
The Grants Act does not require, in order that a State should qualify for a grant, that the
State—or rather the State Parliament—should abdicate, or purport to abdicate, its power to
45 impose taxes upon incomes. A State Parliament could not bind itself or its successors not to
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legislate upon a particular subject matter, not even, I should think, by referring a matter to
the Commonwealth Parliament under sec. 51 (xxxvii.) of the Constitution—but no decision
upon that provision is called for in the present case. The grant becomes payable if the
Treasurer is satisfied that a State has not in fact imposed a tax upon incomes in any
5 particular year during the operation of the Acts.
(c)
The Act does not purport to deprive the State Parliament of the power to impose an income
tax. The Commonwealth Parliament cannot deprive any State of that power: see
Constitution, secs. 106, 107. Notwithstanding the Grants Act a State Parliament could at
10 any time impose an income tax. The State would then not benefit by a grant under the Act,
but there is nothing in the Grants Act which could make the State income-tax legislation
invalid.
(d)
The Grants Act offers an inducement to the State Parliaments not to exercise a power the
15 continued existence of which is recognized—the power to impose income tax. The States
may or may not yield to this inducement, but there is no legal compulsion to yield.
The Commonwealth may properly induce a State to exercise its powers (e.g. the power to
make roads: See Victoria v. The Commonwealth[28]) by offering a money grant. So also
the Commonwealth may properly induce a State by the same means to abstain from
20 exercising its powers. For example, the Commonwealth might wish to exercise the powers
given by the Constitution, sec. 51 (xiii.) and (xiv.) to legislate with respect to banking,
other than State banking, and insurance, other than State insurance. The Commonwealth
might wish to set up some Federal system of banking or insurance without any State
competition. If the States were deriving revenue from State banking or State insurance, they
25 might be prepared to retire from such activities upon receiving what they regarded as
adequate compensation. The Commonwealth could properly, under Commonwealth
legislation, make grants to the States upon condition of them so retiring. The States could
not abdicate their powers by binding themselves not to re-enter the vacated field, but if the
Commonwealth, aware of this possibility, was prepared to pay money to a State which in
30 fact gave up its system of State banking or insurance, there could be no objection on this
ground to the validity of the Commonwealth law which authorized the payment.

But the position is radically different, it is urged, if the so-called inducement practically
amounts to coercion. Admittedly the Commonwealth Parliament could not pass a law
compelling a State to surrender the power to tax incomes or prohibiting the exercise of that
35 power by a State. Equally, it is said, the Commonwealth cannot lawfully make an offer of
money to a State which, under the conditions which actually exist, the State cannot, on
political or economic grounds, really refuse.

END QUOTE
And

40 QUOTE Latham CJ

When a power is defined by reference to purpose, other considerations arise (Deputy


Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[80]). So also if there
were a prohibition against attaining a result by any method whatever. If, for example, the
Commonwealth Constitution contained a provision that no Commonwealth law should by
45 any means bring about the result of a discrimination between States, the indirect
consequential effects of the law would have to be examined. But the Constitution contains
no such provision. For example, taxation laws may not discriminate between States (sec. 51
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(ii.)); laws of trade, commerce or revenue may not give preference to a State (sec. 99).
These provisions affect only laws of the stated character. Thus there may be discrimination
between States and preferences to States under sec. 96—grants to States—because that
section is not subject to any limitation with respect to discrimination (Deputy Federal
5 Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[81]).

Thus, although the Commonwealth Parliament cannot validly pass laws limiting the
functions of State Parliaments—and vice versa—the Tax Act and the Grants Act are not
invalid on that ground. They do not give any command or impose any prohibition with
respect to the exercise of any State power, legislative or other. The Tax Act simply imposes
10 Commonwealth taxation, and is authorized by sec. 51 (ii.) of the Constitution. The Grants
Act authorizes payments to States which choose to abstain from imposing income tax, and
is valid by reason of sec. 96 of the Constitution, unless it is bad as involving some
prohibited discrimination or preference. It is now necessary to deal specifically with that
objection.

15 Discrimination.—Sec. 96 provides that: "During a period of ten years after the


establishment of the Commonwealth and thereafter until the Parliament otherwise provides,
the Parliament may grant financial assistance to any State on such terms and conditions
as the Parliament thinks fit." Plainly under this provision financial assistance could be
given to a single State only. Thus variation in amounts given to different States is
20 permissible. The section contains no express or implied prohibition against any kind of
discrimination: See references to Moran's Case[82]. Thus it is no objection to the Grants
Act that States which abandon income tax are given a grant while those who retain income
tax get nothing.

So also the indirect effect of varying grants upon the fortunes of taxpayers of different
25 States is an irrelevant circumstance. The Tax Act itself is a general Act, applying to all
persons in all States without discrimination. The States, not the taxpayers, receive varying
amounts under the Grants Act. As taxpayers in some States will this year pay more in
Commonwealth income tax than they did last year in both Commonwealth and State
income tax, and taxpayers in other States will pay less than last year, it is said that the Tax
30 Act, read with the Grants Act, discriminates between States. But a comparison of this year
with last year or any past year is not to the point. If the Commonwealth had not enacted the
challenged Acts, no-one can say what the Commonwealth or State rates of tax would have
been this year. The question whether these facts unlawfully discriminate between States
cannot be answered by any consideration of the actual position of taxpayers under past
35 legislation (which was alterable by one Commonwealth and six State Parliaments severally)
or by a speculation as to the taxation which would probably have been imposed by
Commonwealth and States if the Acts in question had not been passed. Further, as already
pointed out, the proceeds of the Tax Act simply go into general consolidated revenue,
together with the receipts from other taxes and other moneys, such as the revenue derived
40 from the post office. Then a portion of this general fund is applied, to the extent of
£33,489,000, in making grants to States, if the States are willing to accept them. There is no
reduction of Commonwealth income tax to taxpayers in particular States.

It is true that in Moran v. Deputy Commissioner of Taxation[83] the Privy Council


pronounced a warning that possibly (no decision was given on the question) a grant under
45 sec. 96 might be used for the purpose of effecting discrimination in regard to taxation—
"under the guise or pretence of assisting a State with money." It may be that, with a very
misguided Parliament, such a case is perhaps conceivable. If the proceeds of a tax could be
earmarked and if such proceeds were then distributed in whole or in part among the States
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upon a discriminatory basis the case apparently contemplated by the Privy Council would
arise. Reference has however already been made to the difficulties which, under the
Commonwealth Constitution, stand in the way of earmarking Commonwealth revenue in
any respect. In the Hoosac Mills Case[84] the Supreme Court of the United States
5 considered such a case as that suggested. The Agricultural Adjustment Act was there held
invalid because the proceeds of a tax were identified with a purpose to which the Act was
applied, that purpose being held to be an unlawful purpose. It was held to be unlawful
because it involved an invasion by the Federal Government of the reserved powers of the
States[85]. This decision depended upon the doctrine of immunity of State instrumentalities
10 which, in Australia, was rejected in the Engineers' Case[86]—See the discussion of this
case in The Supreme Court and the National Will by Dean Alfange, pp. 180 et seq. If the
proceeds of a Commonwealth tax were as such devoted to some unlawful purpose, the case
contemplated by the Privy Council might arise and it would be similar to the Hoosac Mills
Case[87]. But it will not be easy to find a case where it can properly be held that an
15 appropriation Act making grants to States is invalid because it involves an infringement of
the provision that Acts with respect to taxation shall not discriminate between States or
parts of States.

END QUOTE
And

20 QUOTE Starke J.

Next it was contended that the following provision of the Assessment Act is invalid:—"For
the better securing to the Commonwealth of the revenue required for the efficient
prosecution of the present war—(a) a taxpayer shall not pay any tax imposed by or under
any State Act on the income of any year of income in respect of which tax is imposed by or
25 under any Act with which this Act is incorporated until he has paid that last-mentioned tax
or has received from the Commissioner a certificate notifying him that the tax is no longer
payable" (Act No. 22 of 1942, sec. 31). It was said that the Commonwealth had no power
to give itself priority in payment of its income taxes over the taxes of the States. But that
contention, despite some dicta to the contrary, is precluded by the decision of this Court in
30 The Commonwealth v. Queensland[130], and by the decision of the Judicial Committee in
In re Silver Brothers Ltd.[131]. The taxing power gives the Commonwealth authority to
make its taxation effective and to secure to it the full benefit thereof. In my opinion, there is
no distinction in principle between the Commonwealth giving itself priority in the
administration of assets in bankruptcy and in giving itself priority in payment of the
35 personal obligations imposed by an income tax. The dicta above referred to may be found
in Federal Commissioner of Taxation v. Official Liquidator of E. O. Farley Ltd.[132] and
West v. Commissioner of Taxation (N.S.W.)[133], but the contrary view appears to have
been expressed by the same justice in Federal Commissioner of Taxation v. Farley[134],
and note Graves v. New York[135].

40 It was also contended that sec. 31 prohibits taxpayers from paying to the States any taxation
whatever. If that were the proper construction of sec. 31 the Commonwealth would, I think,
transcend its authority, but I cannot so construe the section. The tax imposed is for a
financial year, that is, for the twelve months beginning on 1st July, but it is in every year
assessed upon the year of income preceding the year of tax: See Tax Act, No. 23 of 1942,
45 sec. 7; Assessment Act 1936-1942, secs. 17 and 6; Acts Interpretation Act 1901-1937, sec.
22. But there is nothing in sec. 31 which prohibits or precludes a taxpayer from paying
State taxes so soon as his liability for Commonwealth income tax in any financial year has
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been discharged. The section prescribes priority of payment, and it operates to that extent
and no further, both in law and in fact.
2.
The States Grants (Income Tax Reimbursement) Act 1942 (No. 20 of 1942).—By sec. 96 of
5 the Constitution the Parliament may grant financial assistance to any State on such
terms and conditions as the Parliament thinks fit. This section does not prohibit
discrimination or preference (Victoria v. The Commonwealth[136]; Deputy Federal
Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd.[137]).
The States Grants Act in sec. 4 provides: "In every financial year during which this Act is
10 in operation in respect of which the Treasurer is satisfied that a State has not imposed a tax
upon incomes, there shall be payable by way of financial assistance to that State the amount
set forth in the Schedule." And there are other provisions for further assistance which may
be found in the Act, but which it is unnecessary to detail. This device could be made
effective, as well in time of war as in time of peace, to control State legislation, and the
15 administration of State laws, and ultimately to control and supervise all State functions. The
danger to the States is obvious enough, but this Court has nothing to do with political
policies or remedies; its sole function is to determine whether the States Grants Act, in its
present form, is warranted by the Constitution.
The government of Australia is a dual system based upon a separation of organs and of
20 powers. The maintenance of the States and their powers is as much the object of the
Constitution as the maintenance of the Commonwealth and its powers. Therefore it is
beyond the power of either to abolish or destroy the other. The limited grant of powers to
the Commonwealth cannot be exercised for ends inconsistent with the separate
existence and self-government of the States, nor for ends inconsistent with its limited
25 grants (R. v. Barger[138]; In re Insurance Act of Canada[139]; Attorney-General for
Alberta v. Attorney-General for Canada[140]).

The States Grants Act, it is said, leaves the States perfectly free to exercise their
constitutional powers, though the exercise by the Commonwealth of its powers of taxation
may render the exercise by the States of their powers difficult or impracticable from an
30 economic standpoint, which it is the object of the States Grants Act to relieve: Cf.
Massachusetts v. Mellon[141]; Steward Machine Co. v. Davis[142].

It cannot be doubted that the Commonwealth cannot expressly prohibit the States
from exercising their powers of taxation, and that those powers cannot, subject to the
provisions of the Constitution, sec. 51 (xxxviii.), be appropriated by the
35 Commonwealth nor abdicated by the States. The question in this case comes back to
this: What is the object and operation of the States Grants Act? It purports in sec. 4 to grant
financial assistance to the States, but is it linked up with an object that is beyond the powers
of the Commonwealth, namely, to control the exercise by the States of their powers to
impose taxes upon income? The title of the Act itself is States Grants (Income Tax
40 Reimbursement) Act. The amounts of the grants set forth in the schedule to the Act are, it is
admitted in the pleadings, substantially the average of the amounts raised by each State by
means of income tax in the financial years of each respective State ended 30th June 1940
and 30th June 1941. Further, the tax imposed under the Federal Act on the lower grades of
income is moderate as compared with the tax imposed upon higher grades of income.
45 Consequently it was open for the States to exploit this field of taxation, but if they do so the
Grants Act deprives them of the financial assistance thereby provided.

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In my opinion, the object of the Act is not merely to grant financial assistance to the
States, but there is linked up in it an object and an end that is inconsistent with the
limited grant of power given by sec. 96 to the Commonwealth, namely, making the
Commonwealth the sole effective taxing authority in respect of incomes and
5 compensating the States for the resulting loss in income tax. The argument that the
States Grants Act leaves a free choice to the States, offers them an inducement but deprives
them of and interferes with no constitutional power, is specious but unreal. And it does not
meet the substance of the States' position that the condition of the Act relates to a matter in
respect of which the Commonwealth has no constitutional power whatever, and yet by
10 force of the condition and not as a consequence of the exercise of any power conferred
upon the Commonwealth, the grant of assistance to the States is withdrawn unless they
comply with its terms. The real object of the condition is that already stated, and it is
in my judgment neither contemplated by nor sanctioned by the Constitution, and in
particular by sec. 96 thereof. As I have said, all State legislation and functions might
15 ultimately be so controlled and supervised. The possibility of the abuse of a power is
not, however, an argument against the existence of a power. But if the extent of the
power claimed by the Commonwealth leads to "results which it is impossible to
believe ... the statute contemplated ... there is ... good reason for believing that the
construction which leads to such results cannot be the true construction of the
20 statute" (The Queen v. Clarence[143]). A legitimate use of the powers contained in sec.
96 may be found in the Road Grants Case (Victoria v. The Commonwealth[144]), where
the Commonwealth and the State of Victoria entered into an agreement, the object of which
was to aid the State in the construction and reconstruction of certain roads. Incidentally the
making of roads would be an aid to trade and commerce, and possibly also to defence: See
25 Federal Aid Roads Act 1926 (No. 46 of 1926). No doubt means can be found to give the
States financial assistance without crippling them in the exercise of their powers of self-
government if the Commonwealth taxation creates economic difficulties for them. But I
cannot agree that the provisions of sec. 96 enable the Commonwealth to condition that
assistance upon the States abdicating their powers of taxation or, which in substance
30 is the same thing, not imposing taxes upon income. In my opinion, it follows that the
States Grants (Income Tax Reimbursement) Act 1942 is not within the power or
authority of the Commonwealth Parliament.

END QUOTE
3. Attorney-General (Vic); Ex rel Dale v Commonwealth ("Pharmaceutical Benefits case")
35 [1945] HCA 30; (1945) 71 CLR 237 (19 November 1945) (From High Court of
Australia; 19 November 1945; 129 KB)
.
4. Victoria v Commonwealth ("Second Uniform Tax case") [1957] HCA 54; (1957) 99 CLR
575 (23 August 1957) (From High Court of Australia; 23 August 1957; 204 KB)

40 QUOTE DIXON CJ

18. The constitutional basis for this enactment is s. 96. Section 96 forms part of the
financial clauses of the Constitution which we know as a matter of history were the final
outcome of the prolonged attempts to reconcile the conflicting views and interests of the
colonies on that most difficult of matters. (at p603)

45 19. The fact that it came out of the Premiers' Conference of 1899 (see the Victorian
statute Australasian Federation Enabling Act 1899 (No. 1603) particularly s. 2 and first
schedule), when the opening words of s. 87 (the Braddon clause) were inserted, does not
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assist in its construction nor ought the fact to be used for such a purpose, notwithstanding
that now it has a place, however inconspicuous, as part of the history of the country. But it
may explain why the terms in which it was drafted have been found to contain possibilities
not discoverable in the text as it emerged from the Conventions, and also why the same
5 opening words were adopted as in the Braddon clause as to the duration of the power,
although in a context where they seem to have no purpose or effect that is intelligible, or at
all events credible. It is, perhaps, as well to set out s. 96. It is as follows: - " 96. During a
period of ten years after the establishment of the Commonwealth and thereafter until the
Parliament otherwise provides, the Parliament may grant financial assistance to any
10 State on such terms and conditions as the Parliament thinks fit." One may guess that s. 96
was regarded as connected with the Braddon clause, s. 87, and that the purpose of the
opening words was to enable the Parliament to terminate the operation of both together. See
Quick and Garran: The Annotated Constitution of the Australian Commonwealth (1901)
pp. 869, 870, and per Evatt J., in Deputy Federal Commissioner of Taxation (N.S.W.) v. W.
15 R. Moran Pty. Ltd. (1939) 61 CLR, at p 803 . But s. 51 (xxxvi.) confers upon the
Parliament legislative power "with respect to matters in respect of which this Constitution
makes provision until the Parliament otherwise provides". On its face par. (xxxvi.)
presupposes that the Parliament is authorised to provide otherwise as to "matters" with
respect to which the Constitution immediately provides: they will be matters defined, like
20 those enumerated in s. 51, in such a way as to be subjects "with respect to" which laws may
be made. Section 87 does deal with such a matter, viz. the disposal of the net revenue of the
Commonwealth. In the same way subject matters "with respect to" which legislative
powers may be exercised are specified by the other provisions of the Constitution, except s.
96, in which the phrase occurs "until the Parliament otherwise provides" (cf. ss. 3, 7, 10,
25 22, 24, 29, 30, 31, 34, 39, 46, 47, 48, 65, 66, 67, 73 and 97). (at p604)

20. In all such cases the Constitution makes directly an interim provision for the subject
matter and s. 51 (xxxvi.) operates to confer power on the Parliament to make thereafter
such provisions with respect thereto as from time to time may appear appropriate. But s. 96
does not deal with a legislative subject matter; it does not make some interim provision
30 with respect thereto. It confers a bare power of appropriating money to a purpose and of
imposing conditions. Either the power is terminated or it continues. It would be easy to
understand if it terminated when another provision under or "with respect to" s. 87 was
made but, however much one may suspect it, there is nothing in the Constitution itself to
warrant any such construction. The conclusion reached in Quick and Garran: The
35 Annotated Constitution of the Australian Commonwealth (1901) p. 870 was that the section
might be considered for all practical purposes as a permanent part of the Constitution; and
the Constitutional Commission of 1927-1929, after hearing the meaning discussed of the
limitation to "a period of ten years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides", reported that they considered the words
40 to be ineffective and recommended that they be repealed. In the cases in this Court in which
s. 96 has been considered, except in the passage to which a reference has already been
made in the judgment of Evatt J. in Moran's Case (1939) 61 CLR, at p 803 , it seems to
have been taken for granted that the scope and purpose of the power conferred by s. 96 was
to be ascertained on the footing that it was not transitional but stood with the permanent
45 provisions of the Constitution. (at p605)

21. On this basis it is apparent that the power to grant financial assistance to any State upon
such terms and conditions as the Parliament thinks fit is susceptible of a very wide
construction in which few if any restrictions can be implied. For the restrictions could only
be implied from some conception of the purpose for which the particular power was

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conferred upon the Parliament or from some general constitutional limitations upon the
powers of the Parliament which otherwise an exercise of the power given by s. 96 might
transcend. In the case of what may briefly be described as coercive powers it may not be
difficult to perceive that limitations of such a kind must be intended. But in s. 96 there is
5 nothing coercive. It is but a power to make grants of money and to impose conditions on
the grant, there being no power of course to compel acceptance of the grant and with it the
accompanying term or condition. (at p605)

22. There has been what amounts to a course of decisions upon s. 96 all amplifying the
power and tending to a denial of any restriction upon the purpose of the appropriation or
10 the character of the condition. The first case decided under s. 96 was Victoria v. The
Commonwealth [1926] HCA 48; (1926) 38 CLR 399 . The enactment there in question, the
Federal Aid Roads Act 1926 (No. 46), did not express its reliance on s. 96 either in terms or
by reference to the grant of financial assistance. It authorised the execution by or on behalf
of the Commonwealth of an agreement in a scheduled form with each of the States. It
15 established a trust account in the books of the Treasury to be known as the Federal Aid
Roads Trust Account and appropriated for payment into the fund such amount as was
necessary for each agreement so executed. The scheduled form of agreement set out in
detail a plan or scheme for the construction of roads at the combined expense of State and
Commonwealth. The roads, called Federal Aid Roads, fell into three classes, (1) main roads
20 opening up and developing new country; (2) trunk roads between important towns; and (3)
arterial roads carrying concentrated traffic from developmental main trunk and other roads.
Very specific provisions were made by which what the State did in pursuance of the plan
was made subject to the control or approval of the Commonwealth. The amounts
contributed by a State were to be about three-fourths of those contributed by the
25 Commonwealth. The contributions of the Commonwealth were to extend over ten years. It
was provided that payments would be made to the State out of the moneys for the time
being in the trust account in such amounts and at such times and subject to such conditions
as the Commonwealth Minister might determine. The form of agreement should perhaps be
studied in detail to appreciate how much is implied by the decision of the Court, but for
30 present purposes the foregoing outline may be enough. The validity of the legislation was
upheld by this Court as authorised by s. 96. This means that the power conferred by that
provision is well exercised although (1) the State is bound to apply the money specifically
to an object that has been defined, (2) the object is outside the powers of the
Commonwealth, (3) the payments are left to the discretion of the Commonwealth
35 Minister, (4) the money is provided as the Commonwealth's contribution to an object for
which the State is also to contribute funds. Road-making no doubt may have been
conceived as a function of the State so that to provide money for its performance must
amount to financial assistance to the State. But only in this way was there "assistance". (at
p606)

40 23. In Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [1939]
HCA 27; (1939) 61 CLR 735 , one of the matters decided was the validity of s. 6 of the
Wheat Industry Assistance Act 1938 (No. 53). It is unnecessary to describe the legislative
plan or scheme of which that section formed a part or to discuss the constitutional question
from which I have isolated the question whether s. 6 was valid. The provision was upheld
45 (Evatt J. dissenting) on the ground that it amounted to an exercise of the power contained in
s. 96. (at p606)

END QUOTE

And
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QUOTE

25. The decision, which was affirmed in the Privy Council [1940] HCA 11; (1940) AC
838; (1940) 63 CLR 338 , without express reference to this use of s. 96, must mean that
s. 96 is satisfied if the money is placed in the hands of the State notwithstanding that
5 in the exercise of the power to impose terms and conditions the State is required to
pay over the money to a class of persons in or connected with the State in order to
fulfil some purpose pursued by the Commonwealth and one outside its power to effect
directly. I should myself find it difficult to accept this doctrine in full and carry it into
logical effect, but the decision shows that the Court placed no limitation upon the
10 terms or conditions it was competent to the Commonwealth to impose under s. 96 and
regarded the conception of assistance to a State as going beyond and outside
subventions to or the actual supplementing of the financial resources of the Treasury
of a State. (at p607)

26. From the reasons given in the Privy Council it clearly appears that their
15 Lordships considered that it is no objection to a purported grant of financial
assistance under s. 96 that it discriminates as between States or that it is for the
purpose of a distribution to a class of the people of a State; but what was said did not
necessarily include such an imperative requirement as s. 6 (7) imposes: for that
provision was not mentioned: (1940) AC at pp 857-859; (1940) 63 CLR, at pp 349-350
20 . (at p607)

END QUOTE

And

QUOTE

28. In the present attack upon the validity of the Tax Reimbursement Act 1946-1948 the
25 two States that are plaintiffs naturally rest heavily upon the argument that the Act is a law
for the restriction or control of the States in the exercise of their taxing powers, that on its
face the purpose appears of compelling the States to abstain from imposing taxes upon
income. If s. 96 came before us for the first time for interpretation, the contention might be
supported on the ground that the true scope and purpose of the power which s. 96 confers
30 upon the Parliament of granting money and imposing terms and conditions did not admit of
any attempt to influence the direction of the exercise by the State of its legislative or
executive powers. It may well be that s. 96 was conceived by the framers as (1) a
transitional power, (2) confined to supplementing the resources of the Treasury of a State
by particular subventions when some special or particular need or occasion arose, and (3)
35 imposing terms or conditions relevant to the situation which called for special relief of
assistance from the Commonwealth. It seems a not improbable supposition that the framers
had some such conception of the purpose of the power. But the course of judicial decision
has put any such limited interpretation of s. 96 out of consideration. In any case it
must be borne in mind that the power conferred by s. 96 is confined to granting
40 money and moreover to granting money to governments. It is not a power to make
laws with respect to a general subject matter, which for reasons such as I gave in
Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 ,
may be taken to fall short of authorising a special attempt to control the exercise of
the constitutional powers of the States where there is a connexion with some part of
45 the subject matter of the federal power. The very matter with which the power
conferred by s. 96 is concerned relates to State finance. Further there is nothing which
would enable the making of a coercive law. By coercive law is meant one that demands
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obedience. As is illustrated by Melbourne Corporation v. The Commonwealth [1947] HCA
26; (1947) 74 CLR 31 , the duty may be imposed, not on the State or its servants, but on
others and yet its intended operation may interfere unconstitutionally with the
governmental functions of the State in such a way as to take the law outside federal power.
5 But nothing of this sort could be done by a law which in other respects might amount to an
exercise of the power conferred by s. 96. For the essence of an exercise of that power must
be a grant of money or its equivalent and beyond that the legislature can go no further than
attaching conditions to the grant. Once it is certain that a law which is either valid under s.
96 or not at all does contain a grant of financial assistance to the States, the further inquiry
10 into its validity could not go beyond the admissibility of the terms and conditions that the
law may have sought to impose. The grant of money may supply the inducement to comply
with the term or condition. But beyond that no law passed under s. 96 can go. (at p610)

29. Once the interpretation is accepted in full which the decisions in Victoria v. The
Commonwealth [1926] HCA 48; (1926) 38 CLR 399 , and in Moran's Case [1939] HCA
15 27; (1939) 61 CLR 735; (1940) AC 838; (1940) 63 CLR 338 combine to place upon the
section it becomes difficult indeed to find safe ground for saying that the condition of
the grant of financial assistance may not be that a particular form of tax shall not be
imposed by the State. The interpretation flowing from these two decisions is not
consistent with the view that there must be a need for relief or a reason for giving assistance
20 which is not itself created by the Commonwealth legislation connected with the grant. It is
inconsistent with the view that the terms or conditions cannot require the exercise of
governmental powers of the State and require the State to conform with the desires of the
Commonwealth in the exercise of such powers. It seems a short step from this to saying
that the condition may stipulate for the exercise or non-exercise of the State's general
25 legislative power in some particular or specific respect. Once this step is taken it becomes
easier to ask than to answer the question - "Why then does this not apply to the legislative
power of imposing this or that form of taxation?" (at p610)

30. In short the result of my consideration of the two prior decisions upon s. 96 has been to
convince me that the decision of the majority of the Court with respect to the Tax
30 Reimbursement Act in South Australia v. The Commonwealth [1942] HCA 14; (1942) 65
CLR 373 was but an extension of the interpretation already placed upon s. 96 of the
Constitution. The three decisions certainly harmonise and they combine to give to s. 96 a
consistent and coherent interpretation and they each involve the entire exclusion of the
limited operation which might have been assigned to the power as an alternative. (at p611)

35 31. Before the meaning of s. 96 and the scope of the power it gives had been the
subject of judicial decision no one seems to have been prepared to speak with any
confidence as to its place in the constitutional plan and its intended operation. It may
be said perhaps that while others asked where the limits of what could be done in
virtue of the power the section conferred were to be drawn, the Court has said that
40 none are drawn; that any enactment is valid if it can be brought within the literal
meaning of the words of the section and as to the words "financial assistance" even
that is unnecessary. For it may be said that a very extended meaning has been given to
the words "grant financial assistance to any State" and that they have received an
application beyond that suggested by a literal interpretation. (at p611)
45 32. But even if the meaning of s. 96 had seemed more certain, it would, in my opinion, be
impossible to disregard the cumulative authority of the three cases I have discussed and
conclude that ss. 5 and 11 of the Tax Reimbursement Act are invalid. I therefore think that
the validity of that Act must be upheld. (at p611)
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END QUOTE

5. Attorney-General (Vic); Ex Rel Black v Commonwealth ("DOGS case") [1981] HCA 2;


(1981) 146 CLR 559 (2 February 1981) (From High Court of Australia; 2 February 1981;
278 KB)
5 .
6. New South Wales v Commonwealth [2006] HCA 52; 81 ALJR 34; 231 ALR 1 (14
November 2006) (From High Court of Australia; 14 November 2006; 1493 KB)

QUOTE CALLINAN J.
(bold and colour added)

10 679.The other example, The Tasmanian Dam Case[775], also involved the intrusion by the
Commonwealth, by legislation and not acquisition on just terms, this time under the
asserted head of the external affairs power, upon three, to adopt the language of
Stephen J in Murphyores, "essential functions of a State", the supply of hydro-electric
power to its residents, the environment of a local area of a State, and the use of State land
15 as the State wished. This Court upheld the constitutional validity of that intrusion,
thereby allowing the Commonwealth to achieve, by very indirect means, the use, I
would say misuse, of the external affairs power, by reliance upon an international
arrangement of a kind, and having an impact which I do not believe the founders would
have countenanced, and for which the Constitution, either textually or otherwise, does
20 not provide[776].

680.The Act here requires for its validity at least in part the application of the doctrine of
indirect operation[777]. For that reason, the capacity for intrusiveness upon essential
State functions that its application has, the Act deserves sceptical and close scrutiny.
END QUOTE

25 And

QUOTE

[777] By contrast, s 96 of the Constitution, for example, does legitimately constitutionally


enable the Commonwealth to achieve ends indirectly and without offence to other
provisions and rights. It provides:

30 "During a period of ten years after the establishment of the Commonwealth and thereafter
until the Parliament otherwise provides, the Parliament may grant financial assistance
to any State on such terms and conditions as the Parliament thinks fit."

END QUOTE
.
35 Again, the real issue ignored by judges was that Section 96 was for extreme circumstances only
if a State was not able to meet its financial obligations and was at a risk to be bankrupt.
.
Again;
Mr. WISE-The order and good government of the Commonwealth would come under
40 the term "public services of the Commonwealth."

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Mr. OCONNOR.-I do not agree with the honorable member in his interpretation of
the powers of the Commonwealth, especially when dealing with the expenditure of the
money of the taxpayers. In such a case there will be a great deal of care taken to keep the
nose of the Federal Parliament to the grindstone in the matter of this expenditure. I do not
5 think any expenditure will be constitutional which travels outside these limits. We
must remember that in any legislation of the Commonwealth we are dealing with the
Constitution. Our own Parliaments do as they think fit almost within any limits. In this
case the Constitution will be above Parliament, and Parliament will have to conform
to it. If any Act were carried giving monetary assistance to any state it would be
10 unconstitutional, and the object sought would not be attained. That brings me to the
question of whether it is desirable that there should be any such power either expressed or
implied. I have no hesitation in saying that it would be a disastrous thing for the future of
the [start page 1109] Commonwealth if there was any such power given.
And
15 Mr. OCONNOR.-Unfortunately, things do happen in states that are not always
creditable to the public spirit of the people. We must take human nature as we find it. There
is no doubt that a state might be in such straits that it would unconsciously be influenced by
the feeling that it had behind it, as a last resort, a power that would save it from public
bankruptcy. I have always regarded any dealing between the Commonwealth and the state
20 in matters of money as a thing to be deplored. I should have much preferred some system
of finance by which the states and the Commonwealth could have been absolutely
independent in matters of account and in matters of money. Unfortunately, that cannot
be; but if we must have relations of this kind between the Commonwealth and the
states, let them be such that the states will have certain definite rights which they can
25 assert, and the Commonwealth definite rights which it can assert.

Mr. FRASER.-And duties.


Mr. OCONNOR.-And duties. Do not let us create a relationship between the states and
the Commonwealth in which one state may have the power to exact terms from the
Commonwealth, while the Commonwealth may be able to bring pressure to bear upon a
30 state or its representatives. If that is possible under the Constitution, you have at once
the germs of corruption and improper influence, which may be used disastrously in
the interests of the whole people. If the financial provisions of the Constitution are
administered in the spirit in which I hope they will be administered, there can be no danger
to any of the states.
35 .
It must therefore be very clear that the corruptive conduct associated with funding for projects
was on the minds of the Framers of the Constitution and they specifically provided for the Inter-
State Commission and debated this since 24-3-1897 over at least 35 days and as such section 96
never was intended to replace the very function of the Inter-State Commission and in fact the
40 framers of the Constitution were so eager that this Inter-State Commission could not be sidelined
by any government it specifically inserted the wording “There shall be” as to ensure this always
would exist.
101 Inter-State Commission
There shall be an Inter-State Commission, with such powers of
45 adjudication and administration as the Parliament deems necessary
for the execution and maintenance, within the Commonwealth, of
the provisions of this Constitution relating to trade and commerce,
and of all laws made thereunder.
.
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As such, in the overall context Section 96 is a very limited Section that can only be used for
purposes to save a State from financial disaster as to, so to say, go belly up and then the
commonwealth may provide for conditions that may be required to ensure that any monies
advanced are not wasted. As such, the State may be acting recklessly and need to conform to
5 certain conditions as to safeguard any monies the Commonwealth were to provide to this State,
as not to unduly waste taxpayers monies collected from other States. Therefore the extend of
Section 96 to intrude into State affairs only is relevant where a State is on financial collapse and
needs to be saved and as such not a section to be applied for whatever road work construction or
other wimp a State may desire to spend monies on. Neither does it give the Commonwealth any
10 powers as to make unconstitutional demand upon the States as to blackmail them to hand over
powers or otherwise conform to its demands by refusing to refund the surplus as a way to deprive
the States of finances as that was never intended by the Framers of the Constitution and cannot
be implied either.
.
15 It is remarkable that with so many highly educated lawyers having been involved in this section
96 issue since about federation not one of them appears to ever have understood let alone
comprehended the real meaning and application of Section 96 and the very restrictive nature of
it. Yet, to me it was very obvious as rather then lawyers reading up what previous judges may
have stated and base their arguments upon that I did what I view was no more but common sense
20 and that is to research what the intentions of the Framers of the Constitution was as to Section
96, as some quoted above as to their various statements, and who cares about whatever lawyers
otherwise may try to make of it. Most of them never may have bothered to research the Hansard
Constitution Convention Debates and as the High Court of Australia specifically refused its
usage since about federation until about 1992 then no wonder they had it so wrong.
25 .
So much for the High Court of Australia to be the GUARDIAN OF THE CONSTITUTION, as
the Framers of the Constitution stated where the judges themselves as I view it, haven’t got a
clue that they must not interpret the statements and decisions of previous judges but they are
appointed and are getting paid for to do their own work and to do their own research as to ensure
30 they are not just merely repeating nonsense expressed by other judges but are competent to
present their own argument as to what is constitutionally appropriate. They then could have same
me a lot of time having to do so as to expose their total incompetence and would have save the
general public also a lot of harm.
.
35 Lawyers should keep in mind that “intelligence” and “intellect” is not what you get from
attending to a law study, it is something that you get by doing the hard work in research, etc.
.
Any one no matter how dumb can repeat any nonsense state by others but we should expect that
highly paid lawyers, indeed those specifically appointed to the High Court of Australia have a
40 more to show for then just repeating any nonsense uttered by other lawyers.
.
Some judges in the cases referred to above indicated that was it not for Section 96 some loans
conditions would be unconstitutional. The truth is that other then a specific loan to avoid a State
to become bankrupt they all were unconstitutional in the first place because they were not loans
45 designed from saving a State regarding a fiscal problem not being able to meet is obligations and
going, so to say, belly up, but were loans for ordinary matters for which no constitutional powers
existed for the Commonwealth to provide taxpayers hard earned monies to a specific state.
The States must be responsible enough to manage their own financial affairs and only in the
extreme a States falters the Commonwealth can invoke Section 96 and then set conditions to
50 avoid the continuation of this State financial problems and to protect it from repeating the same.

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Hence the numerous loans purportedly done under the section 96 umbrella all are
unconstitutional and so ULTRA VIRES.
.
Again
5 Hansard 17-3-1898 Constitution Convention Debates
Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
10 alteration, and that, if we have not made our intentions clear, we shall undoubtedly
have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
.
15 Hansard 11-3-1898 Constitution Convention Debates
The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
20 curtailing the power of the committee to arrive at such a conclusion as they may think fit if
I ruled this out of order.
.
Therefore, where Section 96 is prior to Section 99 then Section 96 is bound to be consistent with
Section 99. Therefore any funding provided within Section 96 must be to seek to avoid any
25 discrimination against other States. Hence, any “financial bailout” for any State must be on such
terms as not to offend Section 99. Therefore, the Commonwealth could not give a State bail out
and disregard recouping the monies as then other States are discriminated against.
It should be understood that Section 96 must be considered that at the time of federation the
danger was that colonies having committed themselves as to debts, etc, not covered within
30 Section 105 could be confronted with being unable to pay their liabilities where they lost certain
powers of taxation when the Commonwealth commenced to legislate for this and as such their
viability as a State to financially survive was the issue. For the first “ten years” at the very least
and therefore is something catastrophic occurred to prevent a State to honour its financial
commitments. It was never intended to be an alternative for the Commonwealth to so to say
35 blackmail the States to have surplus refunded under unconstitutional conditions. This kind of
operation clearly defies what the Constitution was set up to achieve.
Again;
Hansard 1-3-1898 Constitution Convention Debates
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
40 question-and the Constitution gives it no power to legislate in regard to that question-the
Ministers for the time being in each state might say-"We are favorable to this law, because
we shall get £100,000 a year, or so much a year, from the Federal Government as a subsidy
for our schools," and thus they might wink at a violation of the Constitution, while no
one could complain. If this is to be allowed, why should we have these elaborate
45 provisions for the amendment of the Constitution? Why should we not say that the
Constitution may be amended in any way that the Ministries of the several colonies
may unanimously agree? Why have this provision for a referendum? Why consult the
people at all? Why not leave this matter to the Ministers of the day? But the proposal

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has a more serious aspect, and for that reason only I will ask permission to occupy a
few minutes in discussing it.
.
As such, unless a State is in such financial problems it cannot honour its financial commitments
5 and is standing to go bankrupt it must be accepted that Section 96 cannot be used, certainly not
for all kind of nonsense such as the 18 November 2008 $300 Million handout by Kevin Rudd
PM to municipal councils for repairing court houses, swimming pools, etc. As this clearly was
never intended by the Framers of the Constitution and neither could be deemed financial
assistance to a State where the States themselves are excluded of such money give away.
10 Fancy the Commonwealth to pursue the States for a reduction of surplus being paid to the States
because of what was without their consent squandered to the municipal councils.
This is not the kind of Constitution the Framers of the Constitution slugged so hard for to create.
In my view, those who are holding law degrees and do not comprehend this kind of nonsense
being unconstitutional do better to hand back their law degrees.
15 .
* I just wonder that if so many judges declared it to be constitutionally valid then why did they if
they were so utterly wrong?
.
**#** Check each and every judgment and you will find, at least for so far I could detect, that
20 none bothered to quote the actual debates as I did. Now, this may underline how they are all
taking something for granted and ignore to do proper research. While they may have held it was
constitutionally valid to provide grants within Section 96 under otherwise deemed
unconstitutional conditions but in a proper consideration what the Constitution set out to do and
that include the independence of the States in their reserve powers then Section 96 as being
25 applied simply is in total conflict of this. If anything it is common sense that Section 96 cannot
operate as if it is not limited by anything else, such as for example Section 116 of the constitution
to prohibit legislation as to religion. Once you accept that the Commonwealth cannot go against
Section 116 of the constitution in regard of Section 96 then you also need to accept that neither
can it go against Section 99.
30 .
Providing financial assistance to a State in dire strait therefore is not going to be a breach of
Section 99 if appropriate conditions are set as after all if a State were to go, so to say, belly up
then it could drag down also other States, as their financial status may also be placed in question,
and making it harder for them to borrow monies, etc. Section 99 simply prohibit Section 96 to be
35 used as a general funding facility, as now is used, but limits this to the extreme circumstances
and so not seeking to make discriminatory funding. If the meaning of section 96 was to be as
judges purport it to be then Section 99 has no value whatsoever in the Constitution. Hence, the
fact that Section 99 is in the Constitution then Section 96 must be subject to this provision.
.
40 Hansard 10-3-1898 Constitution Convention Debates;
Dr. COCKBURN (South Australia).-The Bill provides that the command is vested in the
"Governor-General," and not in the "Governor-General in Council." It has been said that
the Federal Parliament will be able to pass a military law which will alter this, but I say
there can be no alteration in defiance of the Constitution.

45 Mr. BARTON.-One improvement we want in this Constitution is the establishment


of a Commonwealth kindergarten.

Dr. COCKBURN.-There is no doubt we want a lot of common sense as well as a lot


of lawyers.
.
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The message is clear that the parliament cannot give the Federal Executive powers in regard of
Section 96 to circumvent what otherwise is prohibited by the Constitution
.
While Section 122 of the Constitution provided the Commonwealth with legislative powers as to
5 religion in regard of those residing in Commonwealth territories this as Section 116 was not
intended to deny this as Territories are quasi States, by the 1967 con-job referendum it actually
eventuated that the Commonwealth took over legislative powers and neither the States, the
Commonwealth or the Territories can now legislate as to religious matters regarding Aboriginals.
That is when you fool around with the Constitution and amend it without anyone comprehending
10 what BLACKHOLE you are creating in the Constitution.
.
Hansard 10-3-1898 Constitution Convention Debates;
Mr. HIGGINS.-You had it in the Draft Bill.

Mr. BARTON.-Yes; but the term has since disappeared, and it disappeared owing to
15 objections from members of the Convention. I am inclined to think that the Convention is
right in not applying [start page 1765] the term "citizens" to subjects residing in the
Commonwealth or in the states, but in leaving them to their ordinary definition as subjects
of the Crown. If, however, we make an amendment of this character, inasmuch as citizens
of the state must be citizens of the Commonwealth by the very terms of the Constitution,
20 we shall simply be enabling the Commonwealth to deal with the political rights of the
citizens of the states. The one thing follows from the other. If you once admit that a
citizen or subject of the state is a citizen or subject of the Commonwealth, the power
conferred in these wide terms would enable the Federal Parliament to deal with the
political rights of subjects of the states. I do not think the honorable member intends
25 to go so far as that, but his amendment is open to that misconception.
.
I am not aware that there was ever a referendum to transfer the States legislative powers from the
States to the Commonwealth as to “citizenship” but then again, I am not a lawyer but an Attorney
and so may not rely upon fictional legislative powers but rely only upon what are legal facts. If
30 just we could stop this rot.
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
What we need is an OFFICE OF THE GUARDIAN, a constitutional council, that advises the
Government, the People, the Parliament and the courts as to constitutional powers and
35 limitations. As without such an an OFFICE OF THE GUARDIAN we will continue to having
to endure such nonsense and worse the robbing of the rights of the electors as to what is their
right that the Constitution is applied as intended by the Framers of the Constitution, and as
amended validly by referendums and not that politicians/lawyers are twist and turn the true
application of the Constitution as to whatever their contemporary desires might be.
40 .
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.
.
So to say, changing the goal post to rob the people of their various rights isn’t what the
45 Constitution was to be about. Neither should anyone ever accept this kind of armed robbery upon
them. Armed robbery in that the Commonwealth is arming itself with unconstitutional powers
and robbing the general public of their state and other rights and so seemingly condoned by the
lawyers.
THIS MUST BE STOPPED.
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.
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
END QUOTE Chapter Section 96 true application
.
5 Awaiting your response, G. H. SCHOREL-HLAVKA (Gerrit)
END QUOTE 22-11-2008 correspondence to Kevin Rudd PM
.
QUOTE 4-5-2010 EMAIL RECEIVED
Kevin Dudd!
10 Tuesday, 4 May, 2010 9:36 AM
From:
"Jim" <jim.sovereign@optusnet.com.au>

To:
15 "Gerrit H." <inspector_rikati@yahoo.com.au>,

Undoubtedly a similar list and description could be made for past Liberal governments. There is no
real difference between the two m ajor political parties. They are both incompetent and
20 dishonourable liars that have repeatedly betrayed and sold out the Australian people to their
corporate and hidden NWO masters. The only solution is to NOT vote for either Labour or Liberal,
nor their lackeys: the Nationals and Greens. Truly representative government is by
INDEPENDENTS only, instead of the mafia style gangs known as political parties.

25 Jim

--------------------

What has Kevin Dudd done for Australia ?


30
 Petrol Watch -- Failure and dumped
 Grocery Watch -- Failure and dumped
 Laptops for every student -- Failure, nobody considered the maintenance cost
 High Speed Broadband -- Outdated before operational at a cost of billions
35  Internet Filter- “What about the children?” screams the loony left. Easily bypassed
by any kid even remotely tech savvy. Not to even mention govt censorship issue of
free speech.
 “The greatest moral challenge of our time” - Global Warming and the ETS.
Delayed until 2012. Man made global warming is utter bullshit anyway but Krudd
40 needs to get his blown 300 billion back.
 School child care centres – abandoned yesterday because “the economy has
picked up and no longer needed”
 Stopping Whaling - “we will take the Japanese to the International Court and
send our Navy to intercept them”
45  Illegal immigrants aka “Where’s the welfare office?” “We will turn them back”-
says Rudd. 116 boats so far and still coming.
 Aboriginal housing. Already cost hundreds of millions but only 1 single house
built so far. Consultants have got rich though.
 “I am an economic conservative” Rudd says in 2007 BEFORE the election.
50  “I am an old fashioned socialist” he says at the Lowy institute last year.
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Who is this man? Well that depends on who’s listening or what day of the week it
is.
5
I’d love to see those letters Garret wrote to Rudd about the safety warnings for the
Insulation package but Krudd refuses to release them.

Then we come to the Heiner affair, where Rudd allegedly shredded legal documents
10 in a child rape case for Wayne Goss, and was protected from investigation by, you
guessed it, Quentin Bryce, our new GG. What a nice “thank you” from Krudd.

Is there anything this totally gutless and incompetent Government has succeeded
with?
15
Oh yeah, he said “Sorry”

Even for staunch Labor supporters, what does this cretin have to do to get booted?

20 Nobody with a single firing brain synapse could possibly consider voting for these
idiots again. If they do, this country officially becomes the dumbest on the planet.

Oh yeah, I did vote for both Hawke and Keating in the eighties. Love them or hate
them, at least they had a bit of guts. Nothing like this slimy little maggot.
25
Your children, grandchildren and great grandchildren will be paying this off. Rudd
makes Whitlam look like an economic genius!

The dopey prick was asked what the tax free threshold was on Sunrise last week
30 and he said 15 or 16 thousand dollars. IT IS $6000.

This from the Prime Minister who has been concealing the Henry Tax review since
last year. You would have thought he’d glanced at it by now.

35 Remember when Howard didn’t know the price of 2 litres of milk? It made
headlines, but Rudd gets away with it.

WTF is going on here?

40 Did you know his 2 chief advisors are under 30 yrs old? What great life
experience they must have.

From $50 billion in the black to $300 billion in the red. ALL IN 2 YEARS AND
ABSOLUTELY NOTHING TO SHOW FOR IT!
45

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Every Labor state in the country is a basket case economically and now we have the
King of the basket cases in charge.

ALL SPIN AND NO SUBSTANCE!


5
To all that voted for this insufferable git, thanks a lot. You have put your descendants
into debt for the next few generations and destroyed a once great booming
economy.

10 Ps Keep in mind that the Global Financial Crisis was brought to you by Bill Clinton
who decided that US banks had to give housing loans to minority groups who
couldn’t afford to repay them. Another great idea from another “old fashioned
socialist”. Makes you feel warm and fuzzy while sipping your latte though.

15 John

This is for thinking people.....

20 ..... if for some reason you voted for this pack of poorly educated brain dead
morons...think again when it comes time to vote for the next 3 year term..........(they
might have gone to good schools and educational institutions, but their brains are
incapable of retaining what the lecturers were trying to impress upon them)....

25 This country is on its knees due to the many that voted for a person that CAN COOK
A CHOCOLATE PIZZA, but he and his cronies can't run a government...They are
more like a crazed looney with their first credit card.

If you voted for Labor, then read this in its entireity and try to comprehend what you
30 have done..................YES YOU!!!!

If you didn't vote for them, then just read it and arm yourself with facts to ram down
the throat of those that did vote KRUDD into office.

35 No ! No ! This couldn't be right ! But it is !

We are all too mentally lazy to care and he knows it !

What do you have to do to be called to account in this "Lucky" country ?

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THINK you must now have heard the worst of Kevin Rudd’s colossal waste of your
5 billions?

Think nothing could top Rudd’s spending $1.5 billion on free insulation so dodgy
that he must spend an estimated $450 million more to pull it out or make it safe?

10 Then check out this shack above.

It’s actually a school library being built at Stuarts Point with cash from perhaps the
most scandalously wasteful of all the Rudd Government’s “stimulus” packages.

15 How much would you pay for it, do you think? $150,000? $200,000, tops?

Ha! Try $931,000, sucker. And that’s out of your pocket, too.

For a contrast, check what you’d get for less than a quarter of the price if the school
20 had cut out the Government middlemen and simply picked a whole house off the
shelf from a builder.

Ezyhomes, for instance, offers a 182sq m house called the Outlook (below), with a
huge central area just right for a reading or teaching area, as well as three
25 bedrooms you could use for the books, or knock out to make bigger spaces. Add
toilets, kitchen and veranda and you’d still have change from $220,000.

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Or check what the Australian Construction Handbook of 2008 says you should
5 actually pay for a single-storey primary school building - around $1300 per square
metre, actually, or about a tenth of what Stuarts Point’s library costs.

This is not a lone example, either. All round the country you’ll find the same
astonishingly inflated prices for buildings knocked up in a hurry under rush-rush-
10 Rudd’s Building the Education Revolution, set up last year to hurl $16.2 billion into
quick-quick building projects for schools to “save” us from a catastrophic recession
that the Reserve Bank now admits was just one of our milder downturns.

This waste is worst in the $14 billion of that money that went on primary schools,
15 which were given just a couple of months to ask for, plan and start building their
choice of hall, library, shade or classroom.

And what you saw with Rudd’s disastrous free insulation scheme is now unfolding
with these BER projects. Too much money chased too few builders, who naturally
20 quoted mad prices for jobs they barely cared if they didn’t get.

So Eungai Public School in NSW spent $850,000 for just a two-room classroom.
Berwick Lodge Primary, in Victoria , was quoted $200,000 by a Government
project manager to move a sewer and stormwater drain - more than three times what
25 private contractors told the principal the job was worth.

A Wollongong school couldn’t even buy a school hall for its $2.5 million, even
though the one it was quoted was less than half the size of the hall a nearby
Catholic school had built for half the price.
30
Nor does this scandal stop at the overcharging. Many schools asked for or were
offered buildings they didn’t really need, and said yes only for fear of missing out on
a freebie.

35 For instance, Yapeen Primary School , near Castlemaine, was given $150,000 of

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BER money even though it has just two students and may soon close.

Coincidentally, perhaps, the principal has twice stood as a Labor candidate.

5 The reports of overcharging and waste in this massive program, administered by


Deputy Prime Minister Julia Gillard, are so overwhelming that the auditor-general is
now investigating where the money went, and is also asking primary school
principals to say in confidence whether they got value for these billions.

10 I’m yet to speak to a builder who thinks they did.

“I’d say a figure of $1000 a sq m is a very good ball-park figure (for school
buildings),” the prominent head of one of the country’s biggest home builders told
me, asking not to be identified.
15
“The price for this Building the Education Revolution stuff is phenomenally much
higher than that. There’s been a feeding frenzy and people could charge what they
liked.

20 “You could get a couple of houses off the shelf for a fraction of the price of what
they’re paying for (a small library).”

The Opposition estimates that of the $16.2 billion being spent, as much as $9
billion will be frittered away, and no one can be sure that’s not just spin. After all,
25 this Government’s mismanagement of spending already rivals anything Gough
Whitlam ever perpetrated.

The Herald Sun’s s front page report yesterday on the latest scheme to be rorted
came almost as a comic interlude, since the Government’s Solar Hot Water Rebate -
30 another “stimulus” package - at least involves less than $1 billion (just) of your
money.

Consider: here’s a “green” scheme that’s meant to pay $1600 a pop to install solar
hot water systems in (only) private homes, but which instead pays for banks of up to
35 17 free hot water showers at a time for small football clubs like Koondrook-
Barham’s, and without even hooking the units up to those feel-good solar panels.

Is anyone in Canberra looking after your money? Hello?

40 The answer, I fear, is no. In fact the carelessness with which this Government spends
billions of our now-vanished national savings on rubbish is so monumental that few
voters seem able to grasp it.

Take the utter cock-up the Government made of its signature “stimulus” package - its

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plan to stick free insulation into the homes of people who hadn’t thought it worth
their own good money.

On Wednesday, while most of the Canberra press gallery was off reporting on the
5 Indonesian President’s visit, Greg Combet, the Assistant Minister for Energy
Efficiency and for Fixing Government Disasters, finally slipped out the statistics that
show the staggering scale of this waste.

I’ll spare you the adjectives, and give you just the numbers that tell the tale.
10
Homes installed: 1,200,000.
Cost so far: $1.5 billion.
Installers killed: 4.
Homes given bad insulation: 160,000.
15 Homes now at risk of fire: 78,500.
Homes burned: 105
Homes at risk of electrification: 1500.
Homes with incomplete insulation: 95,000.
Homes with fraudulent installations: 5000.
20
THAT adds up to about 340,000 homes given bad, dangerous, incomplete or even
non-existent insulation, including 50,000 now so dangerous that Combet says they
must have the stuff the Government installed ripped out or protected by the
installation of safety switches.
25
The cost of fixing up this disaster? Perhaps $450 million, warns the National
Electrical Contractors Association, not including the $41 million the Government is
paying to retrain the people it threw out of work when it belatedly scrapped its mad
scheme.
30
Your money again. What an incredible, incredible waste.

Oh, but we meant well, cries the Government. We had to spend all this to save you
from the recession.
35
Oh, really? Sinclair Davidson, professor of institutional economics at RMIT
University, has compared the size of Rudd’s “stimulus” spending to those of other
developed countries, and concludes: “The Australian stimulus was massive
compared to most other OECD economies while our unemployment performance
40 was average.

“As I keep saying, the Government panicked and spent far too much money that we
now know was poorly allocated on projects that were not carefully thought through.”

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True. Your billions have gone on insulation that’s now being removed, and some
schools that should be closed.

It’s gone on “cash splashes” that went down the pokies, and on pink batts that sent
5 houses up in smoke.

It’s gone on massive margins charged by name-my-own price builders and on


insulation shonks who charged for work they never did.

10 It’s gone on Saturday showers for footballers, and on rush orders for Chinese
exporters wondering who’d need so much of their shoddy stuff so fast.

Oh, but there’s one statistic I haven’t yet given. How many ministers have lost their
jobs for sending your cash to the scheizenhausen?
15
But you know. It’s zero!

END QUOTE 4-5-2010 EMAIL THAT WAS RECEIVED


.
20 As the Senate is a State House it never should have tolerated for the Federal government to
squander monies of consolidated Revenue or otherwise in a manner as it did1
.
Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
25 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.
END QUOTE
.
30 Hence, any purported COAG (Council of Australian Government) decisions such as regarding
anti terrorist laws neither can be held applicable to undermine the constitutional rights enshrined
in the Constitution.
.
QUOTE Chapter Appropriation of any moneys raised by the Commonwealth
35 Chapter Appropriation of any moneys raised by the Commonwealth
* Gerrit,
.
**#** INSPECTOR-RIKATI®,
.
40 HANSARD 3-4-1891 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE
Mr. THYNNE: I move:

That the following stand as sub-clause 3:-


45 The appropriation of any moneys raised by the commonwealth for any purpose authorised
by the constitution."

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The object of the provision is to limit the power of the commonwealth to borrow money,
or to raise money strictly for the purposes with which it is authorised to deal under the
constitution. It is a provision which I think is necessary for the protection of states.
Mr. CLARK: I thoroughly sympathise with the object which the hon. member has in
5 view, namely, to confine the federal parliament strictly to the powers conferred upon it
by the constitution, and not to let it in any indirect way, by the appropriation of
money, exercise a power which is not directly conferred upon it. But I am of opinion
that the constitution has already sufficiently protected the people, because, although the
parliament might attempt to do what I have just described, I am very sure that the supreme
10 court would very soon declare any such law invalid. Therefore, the only object which we
could gain by inserting the provision would simply be to plainly and legibly place before
the federal parliament this [start page 699] prohibition upon its powers. I do not think we
need do that when we know that this prohibition upon an undue extension of powers does
positively exist, and will be interpreted by the proper tribunal when the time comes. Surely
15 we do not require to state the prohibition in so many words, to use an old expression, so
that a child may understand it.

Mr. THYNNE: Where is the prohibition in the bill now?

Mr. CLARK: It is in the fact that only certain distinct powers are specifically
delegated to the federal parliament, and that they cannot exercise any powers other
20 than those which are specifically delegated to them. If the hon. member can show me
any general words in any part of the bill which appear to go beyond the intention of
delegating specific and limited powers to the federal parliament, I shall then feel compelled
to support the hon. member's amendment, because I thoroughly sympathise with his object.
But I do not want to burden the constitution with any unnecessary provisions. If the hon.
25 member has discovered any general words of the nature I have indicated, I should feel
pleased if he will direct my attention to them.
END QUOTE Chapter Appropriation of any moneys raised by the Commonwealth
.
.
30 Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
35 .
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
40 we are not going to make the Commonwealth a kind of social and religious power
over us.
END QUOTE
.
HANSARD 1-3-1898 Constitution Convention Debates
45 QUOTE Mr. GORDON.-
The court may say-"It is a good law, but as it technically infringes on
the Constitution we will have to wipe it out."
END QUOTE

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And
HANSARD 1-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
The position with regard to this Constitution is that it has no legislative
5 power, except that which is actually given to it in express terms or which is
necessary or incidental to a power given.
END QUOTE
.
Hansard 16-2-1898 Constitution Convention Debates
10 QUOTE
start page 1020] I think that we ought to be satisfied on these points, and satisfied that
if we leave the clause as it now stands there will, at any rate, be some proviso inserted
which will safeguard the states in the carrying out of any of their state laws over
which the states are to be supreme even under federation.
15 END QUOTE
.
Hansard 16-2-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. ISAACS (Victoria).-
20 In the next sub-section it is provided that all taxation shall be uniform throughout the
Commonwealth. An income tax or a property tax raised under any federal law must
be uniform "throughout the Commonwealth." That is, in every part of the
Commonwealth.
END QUOTE
25 .
Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
Mr. MCMILLAN: I think the reading of the sub-section is clear.

30 The reductions may be on a sliding scale, but they must always be uniform.
END QUOTE

And
Hansard 19-4-1897 Constitution Convention Debates (Official Record of the Debates of the
35 National Australasian Convention)
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
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
40 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.
END QUOTE
.
45 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
after the imposition of uniform duties of customs, and further reflection has led me to the
50 conclusion that, on the whole, it will be a useful and beneficial provision.
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END QUOTE

And
Hansard 17-3-1898 Constitution Convention Debates
5 QUOTE Mr. BARTON.-
On the other hand, the power of the Commonwealth to impose duties of customs and of
excise such as it may determine, which insures that these duties of customs and excise
would represent something like the average opinion of the Commonwealth-that power, and
the provision that bounties are to be uniform throughout the Commonwealth, might, I
10 am willing to concede, be found to work with some hardship upon the states for some
years, unless their own rights to give bounties were to some extent preserved.
END QUOTE

Hansard 31-3-1891 Constitution Convention Debates


15 QUOTE Sir SAMUEL GRIFFITH:
2. Customs and excise and bounties, but so that duties of customs and excise and bounties
shall be uniform throughout the commonwealth, and that no tax or duty shall be imposed
on any goods exported from one state to another;
END QUOTE
20
Hansard 11-3-1898 Constitution Convention Debates
QUOTE The CHAIRMAN.-
Taxation; but so that all taxation shall he uniform throughout the Commonwealth, and
that no tax or duty shall be imposed on any goods passing from one state to another.
25 END QUOTE
Hansard 11-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON (New South Wales).-
That all the words after the word "taxation" where it is first used be struck out, and that
30 the following words be substituted:-"but not so as to discriminate between states or parts of
states, or between goods passing from one state to another."
END QUOTE
Hansard 11-3-1898 Constitution Convention Debates
35 QUOTE Mr. BARTON (New South Wales).-
That all the words after the first word "taxation" in the second sub-section be omitted,
with a view to inserting the following words-"but not so as to discriminate between states
or parts of states, or between persons or things passing from one state to another."
40 The amendment was agreed to.
The clause, as amended, was agreed to.
Then, on 16-3-1898 is appears to have been amended, without further discussion but approved
45 off by voting, from;
Taxation; but not so as to discriminate between states or parts of states, or between persons
or things passing from one state to another.
To
50 Taxation; but not so as to discriminate between states or parts of states
It was claimed that in substance there was no change. Hence, both versions ought to be taken as
having the same meaning.
This is a critical issue as the wording;
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“or between persons or things from one state or another”
then clearly entails that there can be no difference in taxation between persons, and as such
5 neither one person having a tax free income, partly or wholly while another having the same
income is required to pay more tax.

Hansard 22-2-1898 Constitution Convention Debates (Official Record of the Debates of the
10 National Australasian Convention)
Mr. BARTON.-I am saying now that I do not think there is any necessity for clause 95
in its present form. What I am saying however, is that it should be made certain that in the
same way as you provide that the Tariff or any taxation imposed shall be uniform
throughout the Commonwealth, so it should be provided with reference to trade and
15 commerce that it shall be uniform and equal, so that the Commonwealth shall not give
preference to any state or part of a state. Inasmuch as we provide that all taxation,
whether it be customs or excise duties, or direct taxation, must be uniform, and
inasmuch as we follow the United States Constitution in that particular-in the very same
way I argue that we should protect the trade and commerce sub-section by not doing
20 anything which will limit its effect. That is the real logical position.
.
Hansard 11-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
25 Clause 52, sub-section (2).-Taxation; but so that all taxation shall he uniform throughout
the Commonwealth, and that no tax or duty shall be imposed on any goods passing from
one state to another.
Mr. BARTON (New South Wales).-I have prepared an amendment with regard to this
sub-section, which puts the matter into a form which would express the intention of the
30 Convention, whilst avoiding a difficulty. Honorable members will recollect the difficulty
that arose over the construction of words equivalent to "uniform throughout the
Commonwealth" in the United States of America. Although no actual decision has been
given, a doubt has been raised as to the meaning of the word "uniform." The celebrated
income tax case went off as to the direct apportionment of taxation amongst the people
35 according to numbers, and this point was not decided, but a great deal of doubt has been
thrown on the meaning of the word in the judgment of Mr. Justice Field. I think that
although the word "uniform" has the meaning it was intended to have-"one in form"
throughout the Commonwealth-still there might be a difficulty, and litigation might arise
about it, and prolonged trouble might be occasioned with regard to the provision in case,
40 for instance, an income tax or a land tax was imposed. What is really wanted is to
prevent a discrimination between citizens of the Commonwealth in the same
circumstances. I beg to move-
That all the words after the word "taxation" where it is first used be struck out, and that
the following words be substituted:-"but not so as to discriminate between states or parts of
45 states, or between goods passing from one state to another."

I conceive it to be quite unnecessary to retain these words in view of clause 89,


prescribing free-trade among the several states, under which any duty or tax on goods
passing from one state to another would be clearly invalid, and could not possibly be
allowed by the operation of the preference clauses. I propose not to say anything about
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goods in this connexion passing from one state to another, as that is sufficiently provided
for, and I put in this provision, which prevents discrimination or any form of tax
which would make a difference between the citizen of one state and the citizen of
another state, and to prevent anything which would place a tax upon a person going
5 from one state to another. I beg to move-

That all the words after the first word "taxation" in the second sub-section be omitted,
with a view to inserting the following words-"but not so as to discriminate between
states or parts of states, or between persons or things passing from one state to
another."
10 The amendment was agreed to.
END QUOTE
.
Hansard 11-3-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
15 QUOTE
Dr. QUICK.-Certainly, with regard to constitutional questions. I am prepared, if
necessary, to give up the subject's right of appeal; but I emphatically assert that there
should be a right of appeal from the decision of the High Court in regard to this
Constitution, a Constitution embodying novel provisions and giving important powers,
20 including the power of the Federal Court to review the procedure of Parliament. The
Federal High Court is empowered to-declare a law passed by both Houses and
assented to by the Crown ultra vires, not because the Legislature has exceeded its
jurisdiction, but because of some fault of procedure. Appeals would be made only when
there was a reasonable doubt in the minds of the responsible advisers of the
25 Commonwealth that the decisions of the High Court were open to question. The knowledge
of this right of appeal would be an incentive to the High Court to be most careful in its
decisions, and especially in its early decisions. I need not enumerate the cases in which, if
the amendment is carried, there will be no right of appeal. There will be no right of appeal
in regard to the letter of the Constitution itself. There will be no opportunity to review a
30 decision, for instance, in regard to legislation under clause 52, sub-section (1)-"The
regulation of trade and commerce." Then, again, it is provided that all taxation is to be
uniform, and all legislation under this provision will be taken out of the purview of the
Privy Council.
END QUOTE
35
Hansard 12-4-1897 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
Mr. GLYNN Does that put a maximum on military expenditure?

40 Mr. PEACOCK: A maximum on all expenditure!

Mr. BARTON: It seems to me to put a maximum on all expenditure, because the whole
of the expenditure cannot exceed the total yearly expenditure in the performance of
the services and powers given by the Constitution, and any powers subsequently
transferred from the States to the Commonwealth.

45 Mr. SYMON: Does that prevent any increase in case of war?


Mr. BARTON: Yes.
END QUOTE
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.
Hansard 12-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE
5 Sir GEORGE TURNER (Victoria).-It seems to me that the question of direct taxation is
again being drawn across the trail to catch votes. Under ordinary circumstances, a million
or two million pounds could not be taken from the Customs revenue; but, suppose that an
expenditure were undertaken, the Commonwealth would have to raise the money by direct-
taxation. If the money were taken out of Customs revenue, and the clause were not in the
10 Bill, there would be so much less surplus to return to the states, and the states would have
to make up the deficiency themselves by direct taxation. These little words, "direct
taxation," were used in the Finance Committee, and have been used since to try and
frighten honorable members. If money cannot be raised by customs duties, it must be raised
by direct taxation.
15 The amendment was negatived.
END QUOTE
Again;
QUOTE
and the states would have to make up the deficiency themselves by direct taxation.
20 END QUOTE

Therefore, it must be clear that the States remained to have legislative powers to raise
taxation, albeit, it appears that the High Court of Australia has ruled otherwise.
What is a Constitution for, if the true application of powers and limitations are incorrectly
25 applied?

Hansard 2-3-1898 Constitution Convention Debates (Official Record of the Debates of the
National Australasian Convention)
QUOTE Mr. OCONNOR (New South Wales).-
30 Of course, when I speak of a state, I include also any territory occupying the position
of quasi-state, which, of course, stands in exactly the same position.
END QUOTE
.
Hansard 3-3-1897 Constitution Convention Debates (Official Record of the Debates of the
35 National Australasian Convention)
QUOTE
Mr. ISAACS (Victoria).-What I am going to say may be a little out of order, but I would
like to draw the Drafting Committee's attention to the fact that in clause 52, sub-section (2),
there has been [start page 1856] a considerable change. Two matters in that sub-section
40 seem to me to deserve attention. First, it is provided that all taxation shall be uniform
throughout the Commonwealth. That means direct as well as indirect taxation, and
the object I apprehend is that there shall be no discrimination between the states; that
an income tax or land tax shall not be made higher in one state than in another. I
should like the Drafting Committee to consider whether saying the tax shall be uniform
45 would not prevent a graduated tax of any kind? A tax is said to be uniform that falls with
the same weight on the same class of property, wherever it is found. It affects all kinds of
direct taxation. I am extremely afraid, that if we are not very careful, we shall get into a
difficulty. It might not touch the question of exemption; but any direct tax sought to
be imposed might be held to be unconstitutional, or, in other words, illegal, if it were
50 not absolutely uniform.
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END QUOTE
Again;
Hansard 3-3-1897 Constitution Convention Debates
QUOTE Mr. ISAACS (Victoria).-
5 It might not touch the question of exemption; but any direct tax sought to be imposed
might be held to be unconstitutional, or, in other words, illegal, if it were not
absolutely uniform.
END QUOTE
.
10 Hansard 3-3-1897 Constitution Convention Debates
QUOTE
Sir GEORGE TURNER: No. In imposing uniform duties of Customs it should not be
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
15 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.
END QUOTE
.
20 Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-The court would not consider whether it was an oversight or not.
They would take the law and ask whether it complied with the Constitution. If it did
not, they would say that it was invalid. They would not go into the question of what was
25 in the minds of the Members of Parliament when the law was passed. That would be a
political question which it would be impossible for the court to determine.
END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
30 QUOTE
Mr. BARTON.-Are not the annual services the annual expenditure proper to the public
service?
Mr. ISAACS.-Supposing that some compensation were being paid to a discharged public
servant. That would not come within the ordinary annual services.[start page 2003] It
35 would not be proper to the public service of the Commonwealth. It would not be a
payment for services rendered in the future, but for services in the past.
END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
40 QUOTE
Mr. GLYNN.-I think they would, because it is fixed in the Constitution. There is no
special court, but the general courts would undoubtedly protect the states. What Mr. Isaacs
seeks to do is to prevent the question of ultra vires arising after a law has been passed.
[start page 2004]

45 Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be


invalid.
END QUOTE
And
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Hansard 8-3-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
No one is more in favour of that than I am. But, at the same time, it is said-"Let the Houses
of Parliament act capriciously and variously from day to day-allow this 'tacking' to go on if
5 the Houses choose to agree to it-let the Houses do one thing one day and another the next,
and do not bother about altering the Constitution, but trust the Parliament." Of course; but
Parliament must only be trusted when it is within the Constitution. The Senate of to-
day and the House of Representatives must not be put in a position superior to the
Constitution.
10 END QUOTE
.
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. DEAKIN.-
. The arguments of the Hon. Mr. Carruthers appear to have fallen on deaf ears, but, [start
15 page 2042] as he pointed out, if there be embedded in the Constitution a direct enactment
that no proposed laws for taxation including more than the one subject of taxation, and no
proposed Appropriation Bill going outside the ordinary services of the year, can be
legally dealt with, both the Speaker of the House of Representatives and the President
of the Senate would not only be authorized, but would be imperatively required, in
20 the discharge of their duty, to rule such a measure out of order at any stage of its
existence.
END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
25 QUOTE
Sir JOHN DOWNER.-Now it is coming out. The Constitution is made for the people
and the states on terms that are just to both.

Mr. DEAKIN.-It is made for the lawyers under this clause.


Sir JOHN DOWNER.-I do not think so. If you say "Trust the Parliament," no
30 Constitution is required at all; it can simply be provided that a certain number of
gentlemen shall be elected, and meet together, and, without limitation, do what they like.
Victoria would not agree to that. But there is a desire to draw the very life-blood of the
Constitution, so far as the states are concerned, by this insidious amendment, which would
give the Houses authority from time to time to put different constructions on this most
35 important part of the Constitution. I hope we will do as we have done in many instances
before, in matters that have been much debated-adhere to the decision we have already
arrived at.
END QUOTE
And
40 Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. HOLDER.-
Surely there would be at least one representative out of the whole Senate and one
member of the House of Representatives, who would have individuality enough, and
strength enough, to get up and challenge the order of any particular measure which
45 might be disorderly under this clause of the Constitution.

Mr. ISAACS.-They would not all sit on the same side of the House.

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Mr. HOLDER.-I should think not. They would not all be Ministerialists, or all members
of the Opposition, or all members of any particular party; and I cannot believe that any Bill
which contained anything objectionable at all could pass through both Houses of the
Federal Legislature without finding some one member of either of the two Houses who
5 would rise to a point of order, and have such a Bill laid aside of necessity as being out of
order under this provision.
END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
10 QUOTE
Mr. CARRUTHERS (New South Wales).-It is worth while considering the stages that a
proposed law has to go through, and the opportunity afforded to a member of either House
or a member of the Executive to call attention to any infraction or infringement of the
Constitution. It does not require a majority of the members of the House of Representatives
15 to insist that the Constitution shall be obeyed in the matter of procedure; it only requires
one solitary member to rise to a point of order, and the Speaker has to give a legal
interpretation of the rules of procedure. It only requires one member of the Senate to call
the attention of the President to the fact that a Bill is introduced contrary to the
Constitution for that proposed law to be ruled out of order. It does not require a
20 majority of the states to insist that the Constitution shall be obeyed, because a
majority of the states cannot by resolution infringe the Constitution. Neither House
could pass the standing order which would give the majority power to dissent from the
Speaker's or President's ruling. The standing orders only confer certain explicit power.
They give no power to either House to pass an order which would enable its members to
25 amend the Constitution.
END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
30 Mr. OCONNOR (New South Wales).-I quite agree with Mr. Trenwith that the object of
the provision is to protect the [start page 2010] Senate from being coerced by the House
which has the power of the purse primarily. But the question between us is not whether you
should take away that protection, but whether you should allow the Senate itself to give up,
whether by accident or design, on any particular occasion, the protection which the
35 Constitution has implanted there for its benefit. The protection of this Constitution is given,
not for the Senate for the time being, but for the people of the states whom the Senate
represents. The question really is whether, for the purposes for which this provision is
designed, that is to say, the protection of the people of the states, as states, it is necessary
that this provision should stand which makes a Bill illegal if these provisions are not
40 complied with, or whether it should be made merely a matter of parliamentary order
between the two Houses?
.
Mr. OCONNOR.-That is begging the question. Even under the circumstances mentioned
by the honorable and learned gentleman, if the rights we are giving under this Constitution
45 to the House which represents the states are to be of any value at all, we should not put it
into the power of a majority in the House of Representatives or in the Senate to
bargain them away, or to give them away at their will.
END QUOTE
And
50 Hansard 8-3-1898 Constitution Convention Debates
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QUOTE Mr. OCONNOR.-
But these difficulties can be overcome by the proper consideration of the terms of the
Constitution. I submit that the question raised here is a very much more important one
than it seems to be thought by some honorable members. I think it is the very essence of the
5 Constitution that we should preserve the form which has been adopted here, and that we
should make the necessity of its adoption imperative upon the Government and the
Parliament, subject to the liability of their acts being declared invalid by the Supreme Court
in the event of the directions of the Constitution not being followed.
END QUOTE
10 And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. REID.-My answer is, how could the House of Representatives put more than one
subject of taxation into a proposed law? If it will be possible for the House of
15 Representatives to put two subjects of taxation into a proposed law, in spite of the
clear words of the Constitution, it will be equally possible for a Taxation Bill to be
originated in the Senate without any one taking any notice of it.
END QUOTE
And
20 Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON (New South Wales).-I wish to make a few observations with regard to the
objection, not, I hope, in [start page 2014] any captious spirit. I quite see the stand-point
from which Mr. Isaacs and others have addressed themselves to the question. But it seems
25 to me that the argument which has been raised by Mr. Isaacs as to this last sub-section of
clause 55, is really an argument for greater clearness in the Constitution; because it seems
to be admitted that if the words of the Constitution are placed beyond dispute, then the
confusion to which my honorable and learned friend alludes cannot arise. Consequently,
the real meaning of the argument is this-"I could not say what I have said if your
30 Constitution were absolutely clear." This is an objection to the form in which the
provision stands, and an objection to form only, and not to substance, because it is admitted
that these matters can only arise by way of confusion, and consequently it must be admitted
that they can only arise where there is room for confusion in the Constitution.
.
35 Mr. BARTON.-There is thus upon the face of the law the important material which
is appropriated for the decision of the court-the very transgression beyond legal
provision, the very matter which the court can take in hand, and with regard to which
it may say-"This must stop, it is illegal." But if the Senate were to originate a Tax Bill,
or to amend an Appropriation Act or Tax Bill, and that Bill were to be passed into an
40 Act; if the Senate were to pass a Bill imposing a burden on the people, and that Bill
were to be passed-in either of these cases it would be impossible for any legal tribunal
to say, upon the face of the law, whether any such infringement of the Constitution
had taken place.
Mr. REID.-So that confusion that can be covered up need not be provided against?

45 Mr. BARTON.-That is not so at all. I do not see the slightest relevancy in that remark, or
any approach to relevancy. So that it becomes perfectly clear that one matter is a matter of
procedure and that to give a legal tribunal the power of interfering with regard to that which
is inherently a matter of procedure would be an unwarrantable power of interference with

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Parliament to give to any court. I am astonished at it being claimed that anything should be
done which would give the court power to instigate an investigation of mere parliamentary
procedure. But those matters which happen under clause 55 do not turn on questions of
procedure, inasmuch as if an infraction of the Constitution occurs, it is apparent upon
5 the face of the Bill which makes the infraction, and the material is there for judicial
determination. That is the difference between the two clauses, and it is of no use trying to
mix up matters of procedure with matters of actual inviolability apparent on the face of the
laws, and to say that you are to apply the same conditions to one as to the other.
END QUOTE
10 And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Let us examine the matter a little. Is it right that there should be tacking? There is not an
honorable member in the Convention who will not say that it is wrong. This clause in itself
15 is a clause to prevent tacking, therefore, it is a clause to do right-for whom?-for the people
themselves. What is the good of our arguing this question on the basis of the rights,
inter se, of the two Chambers, when the whole life of both these Chambers is that they
are servants of the public? For whom are these protections in clause 55 introduced? Is it
for the Senate they are introduced? No, it is for the public.
20 END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
It is not a fact that clause 54 is a clause solely for the protection of the House of
25 Representatives. It confers corresponding rights. The argument fails there, because as
to clause 54 there are rights given to the Senate with reference to certain classes of
Bills appropriating or imposing fines, or demanding or appropriating licence-fees or
fees for service.
Mr. ISAACS.-They are only exceptions, though.

30 Mr. BARTON.-They import a right. My honorable friend cannot get out of it in that
way. He cannot say, because it reads as an exception it does not also [start page 2017]
confer a right. The test of that is this: Let the Senate originate a law which contains a
provision for imposing or appropriating fines or penalties, or which enables a demand
or appropriation of fees for licences or fees for services, and that law is valid within
35 the Constitution. The Senate has a right to originate the law, and therefore this
provision conveys a right. Now, there is a further provision there. While the Senate is
prohibited from amending laws imposing a tax or appropriating money for the annual
services of the Government, sub-section (4) gives the Senate the right to make suggestions,
so that while there are rights given here to the House of Representatives to originate Tax
40 and annual Appropriation Bills, while the Senate may not amend those two classes of Bills,
there are certain other classes of Bills which it can originate, there are certain other classes
of Bills which it can amend, and besides that, under sub-section (5):-

Except as provided in this section the Senate shall have equal power with the House of
Representatives in respect of all proposed laws.
45 END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Mr. HOLDER (South Australia).-
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In an Appropriation Act we should have so many hundred thousand pounds for this,
and so many hundred thousand pounds for that, and other items; but we should have
no detail whatever. In no Appropriation Act passed by any Parliament is there given
small details of the amounts appropriated. An Appropriation Act would often include
5 amounts of £10,000, £15,000, £20,000, and larger sums, the details of which would be
lost altogether in the mass of votes included in the Act. Therefore, it is quite impossible
for any court to tell from the mere construction of an Appropriation Act whether the items
do comprise moneys required for the ordinary annual services of the Government, even if
that phrase "ordinary annual services of the Government" were beyond dispute. Personally,
10 I do not know what the phrase means, and I do not suppose it is possible for anybody
definitely to say what it means.

Mr. REID.-With a new Government it will be a very difficult matter to know what are
"ordinary annual services."

Mr. HOLDER.-Yes; but every item must be an annual expenditure, not one which
15 comes on specially. Now, we all know that all sorts of special emergencies arise in
every country, and that special provision has to be made for every such emergency.

Mr. ISAACS.-Would £50,000 for contingencies be regarded by the court as money


appropriated for the ordinary annual services of the Government?
Mr. REID.-That would be a nice question for the High Court to determine.
20 END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-Suppose you had in the Appropriation Bill, a grant of £500 payable to
25 John Brown, and it was not one of the ordinary annual services of the Government:
could not the court, under this sub section, set the whole law aside?

Mr. BARTON.-There is no doubt that I might be tempted to return the same answer to
that question which a speaker on a memorable occasion returned.
Mr. ISAACS.-It is a very good reason for not having the clause in the Bill.

30 Mr. BARTON.-It is no reason for not having the clause in the Bill. If my learned friend
thinks that the words as they stand are liable to confusion, if he thinks that the
ordinary annual services. of the Government do not sufficiently define the ordinary
annual Appropriation Bill-an Act which the Government must pass to carry on its
own existence-let him suggest some better form of words. Let him make the clause
35 clearer, and by so much as he makes it [start page 2019] clearer he loses the whole
point and effect of his own argument. If the court were to decide that this grant of money
to John Brown is part of the ordinary annual services of the Government, let it be so; but if
it is not to decide the question we will soon find that out, and it can be rectified in six
hours.

40 Mr. TRENWITH.-But in the meantime the whole Bill goes.

Mr. ISAACS.-The whole law goes.

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Mr. BARTON.-In the meantime the whole Bill need not go. We know very well that the
whole Bill does not go under these circumstances, and I am astonished that some of my
honorable friends have not sufficient recollection of Victorian history not to tell us that.
Mr. ISAACS.-We have too vivid a recollection of Victorian history to allow this to pass.

5 Mr. BARTON.-Well, summing up, if the argument is that the sub-section should be
made clearer, let us have suggestions for the clearing of the sub-section, and, in proportion
as those suggestions are good, the necessity for my learned friend's amendment diminishes;
but I submit that where a law bears on its face the evidence of an infraction of the
Constitution, we should be entitled not to allow the process of that law to be regulated by
10 mere methods of procedure, but to submit them to the determination of the court, because
of the evil which appears on their faces. Then, as regards the objections taken to clause 54,
I submit that under that clause the rights of the Senate and the House of Representatives are
correlative rights, but that we are not here to confer rights on Chambers, except by
way of making them instruments of the rights of the people-that so far as we assume to
15 do that we do that sufficiently under clause 54, a clause relating to procedure, without
invoking a judicial tribunal to interfere with mere matters of procedure; but that where the
matters are not only procedure, but go beyond procedure, so as to be matters which carry
on their face the evidence of distinct infractions of the Constitution, then, as we do under
clause 55, we do right to submit those matters to the judicial tribunal.
20 END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS.-Supposing that an Appropriation Bill is brought up from the House
25 of Representatives providing for the ordinary annual services, and providing,
amongst other things, for the payment of light-house keepers, the Senate might think
that this provision for the payment of the light-house keepers should not be carried unless a
provision was also inserted dealing with the light-house keepers who had been dispensed
with.

30 Mr. DOBSON.-We should put them in a separate Bill.


END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
35 It is said we have sought to establish a Constitution by analogy to the House of Lords
and the House of Commons in England. But we know that there is no analogy, or, if
there were an analogy, we should have to consider what would be a very solemn and
serious question-whether we should have federation or a general amalgamation.

Mr. MOORE.-Unification.
40 Sir JOHN DOWNER.-I hate the word "unification," and will not use it. I have said
before that there is much to be said for amalgamation. I can understand that there
might be an immense amount of money saved by amalgamation in the way of carrying
on the government of the country, and there might be an immense amount of force
from the head of the Commonwealth which you cannot get from the partial
45 disintegration which is involved even in federation. But it is not our mission to
establish an amalgamation of these colonies. We are here under Bills passed by our
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various colonies, and there is a claim for federation, and not a claim for merging the
colonies in one common concern.
END QUOTE
And
5 Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-I should hope that the expenditure caused by a bush fire would not be
part of an annual service.

Mr. MCMILLAN.-Would it not into the Appropriation Bill?


10 Mr. ISAACS.-Yes; but not as an annual service.

Mr. MCMILLAN.-The annual services of the Government are those which we


distinguish from special grants and from loan services. The difficulty is that we have
got rid of the phraseology to which we are accustomed, and instead of the words
Appropriation Bill, we are using the word law.
15 Mr. ISAACS.-A difficulty arises in connexion with the honorable members proposal
to place expenditure incurred for bush fires in the ordinary, it would not be annual,
and it would not be a service.
END QUOTE
And
20 Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-Higher up in the clause you will see that it says that, whatever is taken
over, the state is to "indemnify the Commonwealth."
Mr. HOLDER.-If the words I have quoted have the meaning which Mr. Reid says they
25 have, it disposes of my first point. My next point is that in clause 52, it is provided that the
Federal Parliament shall have the power of "borrowing money on the public credit of the
Commonwealth"; and there is no provision anywhere that I know of in this Constitution to
limit the expenditure of money so borrowed. There are limits to the expenditure of
revenue. It would be quite impossible during the five years to render special aid to, any
30 state under the clause we have agreed to to-day, because the revenue is appropriated. But
the provision I have quoted deals with borrowed money, and I know [start page 1114] of
nothing in this Constitution which would limit or control the expenditure of borrowed
money except the Loan Act of the Federal Parliament which authorizes the loan.

Mr. ISAACS.-You are referring to paragraph (4) of clause 52?


35 Mr. HOLDER.-Yes.

Mr. OCONNOR.-But that money could not be spent upon any object the Federal
Parliament thought fit.

Mr. HOLDER.-I want an expression of opinion which shall be authoritative on the point.
I see that, according to the provision I have quoted, there is power given to the Federal
40 Parliament to borrow money on the credit of the Commonwealth, and I say again that I do
not know of any limitation of the expenditure of that money except the limitation which
would be specified in the Loan Act authorizing the borrowing of the money. Of course,
these words cover the raising of the money for the building of railways for instance, and in
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such a case the limitation would be the terms of the Loan Act. But is there anything
anywhere to prevent a Loan Act being passed by the Federal Parliament authorizing the
raising of a certain sum of money, the proceeds of which loan might be divided according
to the terms of the Act among the states according to their needs, or upon some other
5 principle?

Mr. GLYNN.-The first three lines of clause 52 affect that point.

Mr. ISAACS.-The money must be expended with regard to "the peace, order, and
good government of the Commonwealth," not of the states.

Mr. HOLDER.-The passage to which Mr. Glynn refers me is as follows:-


10 The Parliament shall, subject to the provisions of this Constitution, have full power and
authority to make laws for the peace, order, and good government of the Commonwealth,
with respect to all or any of the matters following.

Well, that includes the borrowing of money.

Mr. ISAACS.-It is the Commonwealth as distinguished from the state that is to borrow;
15 the money is only to be borrowed for the purposes of the Commonwealth.

Mr. REID.-Look at clause 81, where it is clearly set out that-

All revenues raised or received by the Executive Government of the Commonwealth,


under the authority of this Constitution, shall form one Consolidated Revenue Fund,
to be appropriated for the public service of the Commonwealth in the manner and
20 subject to the charges provided by this Constitution.

Mr. HOLDER.-With all due respect, I do not think that that clause applies.

Mr. REID.-Yes; it covers every appropriation issued from the Treasury.

Mr. HOLDER.-I do not think so. I think clause 81 deals with revenue.

Mr. REID.-You receive revenue, and you appropriate money for expenditure.
25 Mr. HOLDER.-I do not suppose it is intended that the term "Consolidated Revenue
Fund," used in clause 81, shall include both revenue and loan money. We are surely
going to keep these two separate.

Mr. REID.-There is no provision of that sort.

Mr. HOLDER.-Then I would suggest that words should be inserted in order to provide
30 that loan money and revenue shall be kept separate. I hope we shall have a Loan Account
and a Consolidated Revenue Account, and by no means mix up the two. I take it that
clause 81 does not refer to any loan fund at all, but simply to revenue. The term
"Consolidated Revenue Fund" defines it clearly. Of course, I am not expressing a legal
opinion in a chamber of lawyers such as this is. I should be unwilling to do that. I simply
35 rose with the object of putting forward these points with a view of obtaining a statement of
authoritative opinion in regard to them. It appears to me that the clauses I have mentioned
imply the possibility of some assistance being rendered to a state in difficulties. It
seems to me that, as no assistance could be rendered out of revenue, some assistance
might be rendered out of loans, or there might be a guarantee of a loan, [start page
40 1115] or some other way of rendering financial aid to a state that might be devised.
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But I hope Mr. Henry will withdraw his motion, because to state the matter so
broadly as that the Commonwealth shall come to the aid of a state might, I am afraid,
lead to very serious reckless financing on the part of some states under some possible
conditions.
5 Mr. SYMON (South Australia).-My honorable friend (Mr. Holder) has put the matter
with his usual clearness, and has very convincingly shown that at any rate there is very
considerable doubt as to the question which has been exercising our minds, as to whether it
would be an implied power in the Commonwealth to come to the assistance of a state in
financial straits. And, therefore, if the existence of the power is involved in doubt, it would
10 be exceedingly desirable that some provision-I do not say the provision moved by my
honorable friend, who is not wedded to the particular words of his amendment, or any
other-should be inserted, so as to make it clear that that power exists. Now, I was very glad
to hear Mr. Isaacs express his desire to eliminate from this discussion, although we may use
the word "insolvency," all idea of its being suggested that we contemplate the actual
15 insolvency of any particular state. We cannot discuss a subject like this without using
the common words "bankruptcy" and "insolvency," and if we have to speak of state
bankruptcy, or state insolvency, we do not mean to impute that any state of the
Commonwealth, under any set of circumstances, is likely to repudiate its obligations.
Mr. ISAACS.-Such a thing is absolutely impossible.

20 Mr. SYMON.-Therefore, while we use the terms "bankruptcy" and "insolvency" as


applying to a possible state of things which we wish to avert, it is not to be imagined
for a moment that we contemplate that such a state of things is going to exist, but we
mean that a state may be in such a condition of strait, or the Treasurer of that state
maybe in such a condition of administrative embarrassment, that it may be necessary
25 to have re-course to the Commonwealth for assistance in some shape or other. Now, I
also desire to say that I do not think it is necessary to determine, and it will be
impossible for this Convention to determine, whether or not this implied power exists
in the Constitution. There might be, and no doubt would be, a strong difference of
opinion upon the subject, and even if we, assembled here, were unanimous on the
30 subject, that fact would not assist the final determination of the question when the
exigency arose. But I agree with Mr. O'Connor that undoubtedly in the distribution of
the surplus, and in dealing with the financial condition of the states, the
Commonwealth would be animated by a desire to see that the states were placed in a
position to meet all their engagements. The difficulty which Mr. Henry sees, and to
35 which he directs his amendment, is as to the condition of things during the five years'
interval-during the bookkeeping period-when there is an express appropriation of the
surplus moneys. During that time Mr. Henry fears it is possible, without mentioning any
particular colony, that the Treasurer of one of the states might be unable to see his way to
meet his public engagements.

40 Mr. REID.-He could adopt Mr. Walker's proposal for capitalizing discrepancies.

Mr. SYMON.-That is one of those delightfully scientific proposals that appeal to the
mind of the statistician and the financier more than to the mind of a humble layman, and I
am sure that if there is one member of this Convention competent to solve the problem of
capitalizing a financial discrepancy it is Mr. Walker. However, I have pointed out what
45 seems to me to be the difficulty to which Mr. Henry has addressed his amendment, and I
feel that Mr. O'Connor's [start page 1116] argument, powerful as it is in reference to the
condition of things after the expiration of the five years, is absolutely without force as
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applied to the condition of things to which Mr. Henry's amendment is directed. But I go
further than that, and I take up the view which was dealt with by Mr. O'Connor on the
broad ground-and that is the position to which I wish to direct the attention of members of
the Convention-of whether it is politic or right to introduce this amendment into the
5 Constitution. If this power is implied in the Constitution, then the amendment merely
asserts and makes absolutely clear a power which the Commonwealth might exercise
if the necessity arose. On the other hand, if it is not implied in the Constitution, it
seems to me that it is a power that ought to be in the Constitution, so as to enable the
Commonwealth to do what I believe it would be the disposition of the Federal
10 Parliament to do, namely, to come to the aid of any state which sought its interference
to protect that state from financial disaster or financial strait. I admit all the
possibilities on the two grounds put by Mr. Holder-that there is a possibility of this
provision leading to reckless financing on the part of the states, and also the other
ground that it imposes an obligation on the Commonwealth, and a difficulty with
15 which the Federal Parliament and the Federal Executive may have to deal. But those
two things do not seem to me to outweigh the advantage of having this power clearly
expressed in the Constitution, to enable the Federal Parliament to give that assistance
which might be absolutely essential to the stability and even to the existence of a
particular state. Now, I will suppose the case of a state in which such a condition of
20 things has arisen. But again, I say, I do not believe that such a condition of things
would ever occur in any of the states of this Commonwealth. Still, suppose a state got
into financial embarrassment, and there was a tendency towards, or a talk of,
repudiation, why should not the Federal Executive and the Federal Parliament, in the
interests of the Commonwealth, come to the assistance and relief of that state? Would
25 it not be infinitely better that the Commonwealth should exercise a power of that kind
than that it should allow a blemish to be put on the honour and good faith of the
entire Commonwealth, which would result from any one state repudiating its
obligations? I admit that there are disadvantages and inconveniences on the one side,
but on the other there is the great principle that it is the duty of the Commonwealth to
30 maintain the existence, the integrity, and the solvency of every state. And I do say that
that is the function of the Commonwealth.

Mr. REID.-Then it had better be put in the Bill, and let the people know what they
are doing. If they are going to enter into a contract of that sort, the people had better
know it.
35 END QUOTE
And
Hansard 8-3-1898 Constitution Convention Debates
QUOTE
Dr. COCKBURN.-The whole proposal is foreign to the spirit of the Constitution.
40 The Constitution lays it down that the Commonwealth is to deal equally with all the
states whether it is in the matter of taxation, of bounties, or of trade, and we may as well
strike out the provision that all taxation shall be uniform throughout the Commonwealth
if we are to contemplate that after the taxation has been raised the proceeds may be handed
over to any one colony. The thing will not bear a moment's investigation, and I hope the
45 honorable member will not press his proposal to a division. It is a pity that the amendment
has been brought forward. There is no possibility, nor does any one contemplate the
possibility, of any of the states being in a worse financial position than they are in at the
present time. On the contrary, I believe that their financial position, good as it is now, will
be infinitely improved.

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END QUOTE
.
Hansard 17-2-1898 Constitution Convention Debates
QUOTE
5 Mr. ISAACS.-I am not prepared to answer that question, but when we look at clause 52
we find these governing words on the very forefront of that clause-

That Parliament shall, subject to the provisions of this Constitution, have full power
and authority to make laws for the peace, order, and good government of the
Commonwealth.
10 We see there that the Commonwealth is named as distinguished from the states. We
have our Constitution framed in this way with a Senate to guard what? The interests of the
states, so that the Commonwealth shall not intrude one inch into what is retained as
the executive rights and jurisdiction of the states.
END QUOTE
15 .
HANSARD 26-3-1897 Constitution Convention Debates
QUOTE
Mr. ISAACS: There is a line up to which concession may become at any moment a
sacred duty, but to pass that line would be treason; and therefore, when we are asked
20 solemnly and gravely to abandon the principle of responsible government, when we are
invited to surrender the latest-born, but, as I think, the noblest child of our constitutional
system-a system which has not only nurtured and preserved, but has strengthened the
liberties of our people-then,
END QUOTE
25 .
HANSARD 5-3-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
We have come here to frame a constitution, and the instructions that were given to us,
I am happy to say, are very clearly laid down by the hon. member, Mr. Baker, in the
30 book which he was good enough to distribute amongst us. He puts it in this form:
That it is desirable there should be a union of the Australian colonies. That is one of
the principles that has already been settled by all our parliaments. Second, that such union
should be an early one-that is, that we should remove all difficulties in the way in order that
the union should take place at as early a date as possible. Third, that it should be under
35 the Crown. Now, I am quite sure that is one of the most important conditions of all with
which we have to deal-that the union that is to take place shall be a union under the Crown.
Fourth, that it should be under one legislative and executive government. That also is
laid down by our various parliaments.
END QUOTE
40 .
Taxation upon certain profits of mining companies but not likewise upon the profits, say of
banks, clearly is not for the “whole of the Commonwealth” and as such fails to be
constitutionally valid.
In my view the Governor-General, as the Chief Executive Officer of the Commonwealth which
45 the Ministers of the Crown are serving, should have intervened long ago when it became clear
that the Federal government was plunging the Commonwealth of Australia in an unconstitutional
reckless spending as that is precisely the function of the Governor-General.
.
QUOTE 21-1-2010 CORRESPONDENCE TO THE GOVERNOR-GENERAL

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Mrs Q. Bryce 21-1-2010
Office of the Governor-General governor-general@gg.gov.au
5 .
AND TO WHOM IT MAY CONCERN
.
The issue of legal position of the Governor-General, etc
.
10 Madam,
As a CONSTITUTIONALIST it is of concern to me that there appear to be a
considerable misconception as to the powers, functions, duties and rights, etc associated with the
Office of the Governor-General. This document is not intended and neither must be perceived to
set out all relevant issues as my published books set out matters in far greater details.
15 As a CONSTITUTIONALIST, I expose the real application of the constitution, and as set out
below the Constitution Commission 1988 Report “assumed” certain legislative powers even so
none as such were included in the constitution for this!
.
HANSARD 17-3-1898 Constitution Convention Debates
20 QUOTE
Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
END QUOTE
.
25 Hansard 8-2-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
30 .
This correspondence will also be published by me in my books in the INSPECTOR-RIKATI®
series on certain constitutional and other legal issues and as such have included at times lengthy
quotations so that besides you the reader can become familiar with what the Framers of the
Constitution debated.
35 .
Some basic are that constitutionally there is a provision for a Governor-General, and the
Governor-General is the appointed representative, under whatever title, of Her Majesty Queen
Elizabeth the Second of the British Empire also now referred to of the United Kingdom, etc.
.
40 Hansard 1-2-1898 Constitution Convention Debates
QUOTE
Mr. HIGGINS (Victoria).-
We have no right, in this Constitution, to dictate to Her Majesty to who shall be her
agent. Her Majesty has a right to pick such agent as she thinks fit in any part of the
45 colony, and we have no right to say-"You shall not do so and so."
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END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a
5 clause in the American Constitution; but the President there is practically never absent from
the seat of government. This clause, however, would allow the governor-general to draw
his full salary during a year's leave of absence; and I would point out that that leave of
absence rests with the authorities in Downing-street. The clause, therefore, would allow
the Colonial Office to arrange that the governor-general should draw his full salary during a
10 year's absence, when an administrator would have to be appointed in his place, who would
have to be paid a large salary for doing the work. Who would pay him?
An HON. MEMBER: The governor-general!
Clause, as amended, agreed to.
.
15 The Framers of the Constitution made it abundantly clear that the Governor-General has only
prerogative powers within the Commonwealth of Australia and not beyond. As such, the moment
the Governor-General travels outside the boundaries of the Commonwealth of Australia then
he/she must have appointed a deputy who for the time of the absenteeism executes all duties and
obligations ordinary associated with the Office of the Governor-General and is for this paid for
20 by the Governor-General. The constitution does not permit for the payment of two or more
Governor-Generals, under whatever title he/she might be known.
It also means that the Governor-General leaving the boundaries of the Commonwealth of
Australia cannot draw any expenses associated with that travel because the deputy in the seat to
conduct the affairs of the Governor-General would instead incur the expenses associated with
25 official business.
.
HANSARD 26-3-1897 Constitution Convention Debates
QUOTE Mr. HOLDER:
To the State everything that is local and relating to one State, to the Federal power
30 everything that is national and of inter-State importance. I pass from these two general
principles to a discussion of the only other preliminary I shall have to touch, and that is the
question of the appointment of the representative of the British Crown in the person of the
Governor-General. I do not take it that the words of the Enabling Act requiring us to frame
a Constitution for a Federation "under the Crown" bind us in the matter of whether or not
35 we shall elect our own Governor-General, because I take it that the legal bonds which
bind us to the mother-country, to the great British Empire,
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
40 QUOTE
Mr. SYMON ( South Australia ).-
In the preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland , and under the Constitution hereby
45 established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not intended
there to have any relation whatever to the name of the country or nation which we are going
to create under that Union . The second part of the preamble goes on to say that it is
expedient to make provision for the admission of other colonies into the Commonwealth.
50 That is, for admission into this political Union, which is not a republic, which is not to

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be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
END QUOTE
.
5 HANSARD 26-3-1897 Constitution Convention Debates
QUOTE
Mr. HOLDER: Yes, of course; the Commission from Her Majesty lies dormant until it
is actually called into existence by the absence of the Governor; but we can at this moment,
if the necessity arises, appoint a new occupant to the Supreme Court Bench, and that would
10 qualify him to fill the office of Acting-Governor if need required it. Therefore I think it is
clear that to that extent it lessens the argument that the main link that binds us to the
mother-country is the appointment of the Governor, and shows that it is an argument which
has not half so much weight as some of the speakers would have us believe. But I take a
very strong position against the election of the Governor-General by the Federation, not
15 because I believe it would mean losing a link which binds us to England, but that we should
have a man of such power and authority, derived directly from the people, that he would
certainly clash with the other powers and authorities we propose to set up under this
Constitution.
END QUOTE
20 .
HANSARD 26-3-1897 Constitution Convention Debates
QUOTE Mr. LYNE:
First of all, he raised the question of the appointment of the Governor-General for the
Federal Executive. Now, I think there is no desire on the part of any large section of
25 this community to take what I may term the first step towards a severance from the
mother-country, but the first step would be in the election of the Governor-General
instead of allowing his appointment to be made by the Home Government. It is but a
small connecting link between the Australasian colonies-between a Federated
Australia and the mother-country-to allow the appointment to be made by the Home
30 Government; and I should like to know what power that Government would have
over any Governor-General elected in the manner desired.
END QUOTE
.
Hansard 17-2-1898 Constitution Convention Debates
35 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
and authority to make laws for the peace, order, and good government of the
40 Commonwealth.
We see there that the Commonwealth is named as distinguished from the states.
END QUOTE
.
HANSARD 10-03-1891 Constitution Convention Debates
45 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

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constituent bodies. They have not only the power of legislation, but the power of
amending their constitutions. That must disappear at once on the abolition of
parliamentary sovereignty. No parliament under a federation can be a constituent
body; it will cease to have the power of changing its constitution at its own will. Again,
5 instead of parliament being supreme, the parliaments of a federation are coordinate
bodies-the main power is split up, instead of being vested in one body. More than all
that, there is this difference: When parliamentary sovereignty is dispensed with,
instead of there being a high court of parliament, you bring into existence a powerful
judiciary which towers above all powers, legislative and executive, and which is the
10 sole arbiter and interpreter of the constitution.
QUOTE
.
Because The Commonwealth of Australia Constitution Act 1900 (UK) is the platform upon
which the Commonwealth of Australia was build there is no power to change this, being it by
15 smart talking lawyers and/or politicians because they like to use a purported backdoor way to
turn the Commonwealth of Australia into some REPUBLIC.
.
It should be understood that neither can the Commonwealth of Australia apply a de facto
constitution purporting to be identical to The Commonwealth of Australia Constitution Act
20 1900 (UK) because the moment one accept that the Federal parliament can create an alternative
constitution (identical or not) then it means the Federal parliament likewise can remove s.128
referendum powers and amend this purported constitution as it desires. It would then turn the
democratic Commonwealth of Australia, a POLITICAL UNION (see below) into a
dictatorship.
25 .
It should be understood that for politicians there is much to gain to try to turn the Commonwealth
of Australia from a “POLITICAL UNION” into a republic, even if it is deceptively claimed to
be under the Queen of Australia. After all if the Federal parliament can turn the “POLITICAL
UNION” into some purported monarchy then why not then the next step a REPUBLIC? After
30 all, those who accept a purported monarchy cannot then complain if it is instead turned into a
REPUBLIC. As they say what is good for the Goose is good for the Gander. Whereas Ministers
in the British government have unlimited powers within their portfolio a Minister in the
Commonwealth of Australia can exercise only powers “peace, order and good government”
and not beyond. It is therefore abundantly clear in that regard also that politicians want to do
35 whatever to broaden their powers and in whatever unconstitutional manner.
On 19 July 2006, after a 5-year epic legal battle I defeated the Commonwealth of Australia
comprehensively on all submissions based on constitutional matters, including those stated in the
2 December 2002 filed NOTICE OF CONSTITUTIONAL MATTERS and did so
comprehensively without challenge and in fact the Commonwealth of Australia consented for the
40 Court to unconditionally uphold both of my cases. As such, I have the courts adjudication against
the Commonwealth of Australia to support my views.
.
The Commonwealth of Australia Constitution Act 1900 (UK)
QUOTE
45 3 Salary of Governor-General
There shall be payable to the Queen out of the Consolidated
Revenue fund of the Commonwealth, for the salary of the
Governor-General, an annual sum which, until the Parliament
otherwise provides, shall be ten thousand pounds.
50 The salary of a Governor-General shall not be altered during his
continuance in office.

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END QUOTE
.
QUOTE
48 Allowance to members
5 Until the Parliament otherwise provides, each senator and each
member of the House of Representatives shall receive an
allowance of four hundred pounds a year, to be reckoned from the
day on which he takes his seat.
END QUOTE
10 .
QUOTE
66 Salaries of Ministers
There shall be payable to the Queen, out of the Consolidated
Revenue Fund of the Commonwealth, for the salaries of the
15 Ministers of State, an annual sum which, until the Parliament
otherwise provides, shall not exceed twelve thousand pounds a
year.
END QUOTE
.
20 The difference being that the Governor-General and the Ministers are employed by the Crown
whereas Members of both houses of Parliament are not, their “ALLOWANCES” (Not salaries,
as they are not employed) as such is directly payable from Consolidated Revenue Funds where as
Ministers and the Governor-General are in employ of the British Crown and Her majesty may
very well re-deploy a Governor-General to another colony/federation, etc. As Sir Grey made
25 known he had been after having been governor-General of South Africa. After all, one would not
want a Governor-General retiring with a life pension from the Commonwealth of Australia and
then being appointed as governor-General to Canada and claim another life pension and then as
retired governor-General of new Zealand collect yet another pension and on and on. Clearly, the
term of payments for a Governor-General rest with the period in office and even during
30 absenteeism then as set out below also the governor-General had to pay for his Deputy taking
care of his duties and functions and not that the taxpayers are paying for two or more governor-
Generals.
.
Indeed, the whole set up with the Senate was extensively debated that Senator-elect could not
35 draw an “ALLOWANCE” until the day he actually took up the seat for which he was elected as
otherwise there would be more senators in position of one seat then permitted. Hence, a Senator
can only draw an ALLOWANCE for the time actually holding the seat and no longer. Upon
retirement it is the end of payments. The same with Members of the House of Representatives.
.
40 QUOTE Governor-General Act 1974
3 Salary of Governor-General
The annual sum payable out of the Consolidated Revenue Fund for the salary of the
Governor-General shall be $394,000.
END QUOTE
45 .
It must be clear that this section is ULTRA VIRES, because by this the Federal Parliament has
interfered with the provisions of section 3.
.
QUOTE
50 3 Salary of Governor-General
There shall be payable to the Queen out of the Consolidated
Revenue fund of the Commonwealth, for the salary of the
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Governor-General, an annual sum which, until the Parliament
otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his
continuance in office.
5 END QUOTE
.
If the Governor-General draws directly from the Consolidated Revenue Funds any salary then
the Governor-General is not representing the Crown and as such cannot be deemed to exercise
any prerogative powers, which is needed to maintain the link with the Crown for providing
10 validly royal assent to Bills for them to become legislative provisions.
.
Her Majesty may very well decide that the functions and duties the Governor-General exercises
in regard of the Commonwealth of Australia may suit better to combine with the duties and
obligations as Governor-General for New Zealand and so provide a certain salary that is well and
15 above that of what is paid to her majesty from the Consolidated Revenue Funds of the
Commonwealth of Australia. If this were to be so then Her majesty as the principle employer has
every right to determine the level of total salary payable irrespective of what the Commonwealth
of Australia may deem relevant to the functions and duties relating to the commonwealth of
Australia only.
20 .
Below another abnormality where somehow the Commonwealth of Australia seeks to intrude
upon the prerogative powers of the Queen in a remarkable idiotic manner.
Somehow the Commonwealth provided that from Consolidated Revenue Funds (upon the death
of the Governor-General )“as the deceased person’s husband or wife or partner on a
25 permanent and bona fide domestic basis” “leaving more than one spouse” “to a spouse of the
deceased person under this Act among the spouses”
.
FAMILY LAW ACT 1975
QUOTE
30 43 Principles to be applied by courts

The Family Court shall, in the exercise of its jurisdiction under this
Act, and any other court exercising jurisdiction under this Act shall,
in the exercise of that jurisdiction, have regard to:
35 (a) the need to preserve and protect the institution of marriage as
the union of a man and a woman to the exclusion of all others
voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to
the family as the natural and fundamental group unit of society,
40 particularly while it is responsible for the care and education of
dependent children;
END QUOTE
.
Whereas in British legislation a newer act automatically overrides all previous conflicting
45 legislative provisions, other then any constitutional act, and likewise so any European Union
legislation automatically overrides any British legislation other then constitutional acts
.
The Commonwealth of Australia Constitution Act 1900 (UK) is a British Constitution Act and
as such considering the decision of Aggregate Industries UK Ltd., R (on the application of) v
50 English Nature and & Anor [2002] EWHC 908 (Admin) (24th April, 2002) and Judgments -
Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL for
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judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003]
EWCA Civ 168
It appears that the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) albeit not overriding constitutional law, is
5 complimentary to British (constitution) law, as the Commonwealth of Australia Constitution
Act 1900 (UK) is.
Legislation therefore includes all laws inhered from the United Kingdom, including the Magna
Carta, the Bill of Rights and other legislation. More over, it includes also that the legal provision
that the British Parliament can always amend its own laws remains applicable. Therefore the
10 United Kingdom by signing the European Union treaty and so its acceptance of its Constitution,
in effect has ensured that the right of the British Parliament to compliment The Commonwealth
of Australia Constitution Act 1900 (UK) was never extinguished.
The right of any Parliament to amend its own legislation, including seeking/proposing an
amendment of a constitution subject to s.128 referendum, provisions can only be limited by the
15 provisions of the constitution, but the right to provide complimentary legislation, such as the The
European Convention for the protection of Human Rights and Fundamental Freedoms
(“the ECHR”) is clearly not avoided, as any legislation applicable to British law automatically
applies to all British law, with the exception that constitutional law cannot be interfered with by
implied amendments.
20 The purpose of the The European Convention for the protection of Human Rights and
Fundamental Freedoms (“the ECHR”) is not to undermine the The Commonwealth of
Australia Constitution Act 1900 (UK) but rather is complimentary to the provisions of the
Constitution.
.
25 Therefore, in regard of the Commonwealth of Australia the provisions of the amended
Governor-General Act 1974 there is no such kind of automatically amendment to the Family
Law Act 1975.
Therefore for the Commonwealth proviing that from Consolidated Revenue Funds (upon the
death of the Governor-General )“as the deceased person’s husband or wife or partner on a
30 permanent and bona fide domestic basis” “leaving more than one spouse” “to a spouse of the
deceased person under this Act among the spouses” is a non legal enforceable provisions as it is
ULTRA VIRES.
.
Without seeking to select any particular religion, consider that some person married to five or
35 more wives was to be appointed governor-General and then claim for his entire harem of wives
and the dozens of children payments! It is a total absurdity and not at all what the Framers of the
Constitution contemplated.
.
It must be clear the Governor-General is to be employed by the British Crown and the
40 constitution provides for salaries payable to the Queen and no others. If Her Majesty then were to
appoint a person who has a harem and countless children then her majesty can feed the bill but
the Commonwealth of Australia would only be obligated to pay for the Governor-General a
salary and no more.
.
45 Another issue is that if I employ a contractor then it doesn’t matter how many subcontractors that
contractor engages in performing the job as ultimately I only pay the contractor regardless if he
pays his subcontractors or not. The contract is with the Contractor. Any subcontractor would
have no claim against me but against the contractor.
Likewise so the Governor-General, he/she must obtain any payments for m the Queen and cannot
50 so to say put his/her fingers in the till to steal monies from it as payment. A Cashier cannot put
her fingers in the till as to obtain wages but must await the employer to pay her wages.
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Therefore, the Governor-General can only obtain payments through Her Majesty Queen
Elizabeth of the British Crown (as set out further below) and if the Governor-General purports to
serve a Queen of Australia then there is no constitutional provision for payments because the
queen of Australia is a fictitious name of a non existing monarchy.
5 .
As quotations below clearly refers to “British crown” “British Empire” and not “Australian
crown” or “Australian empire” it must therefore be obvious that a Governor-General can only
legitimately represent the Queen and draw salary from the Queen provided she is appointed upon
recommendation of the Home Office (not the Commonwealth of Australia) by the British Crown.
10 .
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
QUOTE

Governor-General Act 1974


15 Act No. 16 of 1974 as amended

This compilation was prepared on 1 January 2009


taking into account amendments up to Act No. 134 of 2008
END QUOTE
And
20 QUOTE
An Act to make provision in relation to the Salary of the
Governor-General, and the Payment of Allowances to persons, and
to the spouses of persons, who have held the office of
Governor-General, to establish the office of Official Secretary to the
25 Governor-General, to provide for the employment of staff of the
Governor-General, and for related purposes
END QUOTE
And
QUOTE
30 (3)For the purpose of subsection (2), a person is to be regarded as ordinarily living with a deceased
person as the deceased person’s husband or wife or partner on a permanent and bona
fide domestic basis at a particular time only if:
END QUOTE
And
35 QUOTE
3 Salary of Governor-General
The annual sum payable out of the Consolidated Revenue Fund for the salary of the
Governor-General shall be $394,000.

40 END QUOTE
And
QUOTE

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4 Allowances
(1) Subject to subsection (4), where, after the commencement of this Act, a person ceases to hold
office as Governor-General, an allowance is payable under this section to him or her during
his or her life-time at such rate as is from time to time payable under paragraph (3)(a).
5
END QUOTE
And
QUOTE
4A Allowance payable when there is more than one spouse
10 (1) If a person who held office or had held office as the Governor-General (deceased person)
dies leaving more than one spouse, the Commissioner must allocate any allowance payable
to a spouse of the deceased person under this Act among the spouses.
END QUOTE
And
15 QUOTE
5 Appropriation
An allowance under section 4 is payable out of the Consolidated Revenue Fund, which is
appropriated accordingly.
END QUOTE
20 .
As I indicated the Commonwealth of Australia cannot interfere with the prerogative powers of
the Crown as exercisable by the Governor-General, however the Commonwealth of Australia can
provide for the additional powers to proclaim other matters, such as to what date an Act may
become applicable, provided it is on or past the date of it being Gazetted by the Governor-
25 General.
.
QUOTE
FAMILY LAW ACT 1975 SECT 40 40 Jurisdiction of Family Court
(1)
30 The jurisdiction of the Family Court under this Act shall not be exercised
except in accordance with Proclamations under this section.
(2)
The Governor-General may, by Proclamation, fix a date as the date on and after
which the jurisdiction of the Family Court under this Act may be exercised in
35 respect of all proceedings, or a class of proceedings, in such States and
Territories as are specified in the Proclamation.
END QUOTE
.
Likewise the Federal Parliament can provide other non-prerogative powers to the Governor-
40 General. It should however be understood that the Commonwealth of Australia and so the
federal parliament cannot interfere with the British Crown and how this applies to the
constitution and the High Court of Australia has judicial powers to adjudicate but cannot either
interfere or otherwise wise the true meaning and application of the constitution which as the
Framers of the Constitution made clear was “-"under the Crown of the United Kingdom of
45 Great Britain and Ireland”.
.
Below I have extensively canvassed therefore also this issue.
.
Hansard 2-3-1898 Constitution Convention Debates;
50
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Mr. SYMON (South Australia).-
I wish to clear away the misconception in the first place that I have any objection whatever
to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I
have no objection to that where it is confined to the expression of the political Union. In the
5 preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not intended
10 there to have any relation whatever to the name of the country or nation which we are going
to create under that Union. The second part of the preamble goes on to say that it is
expedient to make provision for the admission of other colonies into the Commonwealth.
That is, for admission into this political Union, which is not a republic, which is not to
be called a dominion, kingdom, or empire, but is to be a Union by the name of
15 "Commonwealth," and I do not propose to interfere with that in the slightest degree.
.
Safe to state that the Commonwealth of Australia is a POLITICAL UNION existing by the
legal provisions and referendums of the (then) colonies!
Further, the Framers of the Constitution made clear that there are no constitutional powers to turn
20 the Commonwealth of Australia into a Republic! As like the EUROPEAN UNION there is no
monarchy, republic, empire, etc, just a “POLITICAL UNION”
Those Frenchmen, Dutch, Germans, British, etc, are not now claiming their nationality is
“EUROPEAN UNION” as each retained their own nationality. Likewise Australians natural
born or naturalized, as set out below, also retained their British nationality albeit commonly
25 referred to as Australians.
.
“Australian Citizenship” is not and neither can be constitutionally a nationality as it is a political
status obtained AUTOMATICALLY when a person obtains “State citizenship”, this too has
been set out below to some extend.
30 .
HANSARD 2-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that
we are all alike subjects of the British Crown.
35 END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
I am proud of being a citizen of the great British empire, and shall never fail to be
40 proud of that position. I have no desire to weaken a single link binding us to that
empire, whether as regards the appointment of a governor-general or anything else. I
desire to hold those links sacred, and if possible to strengthen them, and I am satisfied
that in making his proposal the hon. member is not consulting the feelings of the
people of Australia.
45 END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
50 rest this Constitution on a foundation that we understand, and we mean that every
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citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship, except
with regard to one particular set of people who are subject to disabilities, as aliens, and so
on. Subject to that limitation, we ought not, under this Constitution, to hand over our
5 birth right as citizens to anybody, Federal Parliament or any one else, and I hope the
amendment will not be accepted.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
10 QUOTE Mr. BARTON (New South Wales).-
The only difference between the position before the institution of the Commonwealth and
afterwards is that, so far as there are additional political powers given to any subject or
citizen, be has the right to exercise these, and the method of exercising them is defined. So
far the right of citizenship, if there is a right of citizenship under the empire, is
15 defined in the Constitution. Now, each citizen of a state is, without definition, a citizen
of the Commonwealth if there is such a term as citizenship to be applied to a subject
of the empire.
END QUOTE
.
20 While the High Court of Australia in its 1996 Sue v Hill decision declared that somehow Heather
Hill was excluded from being a Member of Parliament (Senate) the truth is that it was a
fabrication of a non-existing Queen of Australia.
When I naturalised in 1994 I understood to be under the British Crown, and somehow in
1996 it is being claimed that retrospectively it is not the British Crown at all but a non-
25 existing Australian crown?
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. ISAACS.-It compels everybody who has obeyed the decision of the higher courts to
30 act, or refrain from acting. That is a position which none of us would willingly get into,
and the retrospective action is wrong.
END QUOTE
And
QUOTE Mr. ISAACS.-
35 Unless the honorable member is willing to amend his clause in that respect, we should only
complicate matters, and if retrospective operation were given to it we should be lending
ourselves to what would be, quite unintentionally on the part of the honorable
member, a gross injustice.
END QUOTE
40 .
Hansard 5-3-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
We have come here to frame a constitution, and the instructions that were given to us,
I am happy to say, are very clearly laid down by the hon. member, Mr. Baker, in the
45 book which he was good enough to distribute amongst us. He puts it in this form:
That it is desirable there should be a union of the Australian colonies. That is one of
the principles that has already been settled by all our parliaments. Second, that such union
should be an early one-that is, that we should remove all difficulties in the way in order that
the union should take place at as early a date as possible. Third, that it should be under
50 the Crown. Now, I am quite sure that is one of the most important conditions of all with
which we have to deal-that the union that is to take place shall be a union under the Crown.
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Fourth, that it should be under one legislative and executive government. That also is
laid down by our various parliaments.
END QUOTE
.
5 Hansard 1-4-1891 Constitution Convention Debates
QUOTE Mr. BARTON:
There can be nothing unsavoury in a title which means, according to the best
authority, "the nation, state, realm, the commonwealth"-the word being interposed
between "realm" and "republic," showing that it is used to signify the common good
10 and that it has that signification whether under a queen or a republic. "Nation, state,
realm, commonwealth, republic, commonweal, nationality." The words used by Roget as
synonymous are among others "national" and "public." If these are the expressions
associated by the highest authorities with the word commonwealth, why seek better? Shall
we take confederation or federation? I will not give all the words which are stated as
15 synonymous, because some of them express almost too much; but we find these, "league,
alliance, coalition, confederacy, confederation." These are not altogether what we wish to
express, because we know that although we have, embodied the operation of federal action
in this commonwealth, still we seek to constitute a national government for national
purposes. Our purposes of government may be national while we preserve the utmost
20 loyalty to the monarch whom the constitution sets over us. As the hon. member, Sir
George Grey, has expressed it, we have constituted the Queen a member, and the highest
member, of our parliament. The association of the Queen with the action of the
commonwealth is distinct, and is firmly embedded in the whole bill. If that is done,
there can be no association of the idea of republicanism with this bill.
25 END QUOTE
.
Again;
QUOTE
If that is done, there can be no association of the idea of republicanism with this bill.
30 END QUOTE
.
And again;
QUOTE
If that is done, there can be no association of the idea of republicanism with this bill.
35 END QUOTE
.
Hansard 10-3-1891 Constitution Convention Debates;
QUOTE Mr. DIBBS:
So long as we remain in our present position as individual colonies, we are imperially
40 federated, and we can be imperially federated in no stronger manner than in
connection with our relation to the mother country.
END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates;
45 QUOTE
Mr. SYMON (South Australia).-
I wish to clear away the misconception in the first place that I have any objection whatever
to the word "Commonwealth," or to the use of the word "Commonwealth," in this Bill. I
have no objection to that where it is confined to the expression of the political Union. In the
50 preamble honorable members will find that what we desire to do is to unite in one
indissoluble Federal Commonwealth-that is the political Union-"under the Crown of the
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United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established." Honorable members will therefore see that the application of the word
Commonwealth is to the political Union which is sought to be established. It is not intended
there to have any relation whatever to the name of the country or nation which we are going
5 to create under that Union. The second part of the preamble goes on to say that it is
expedient to make provision for the admission of other colonies into the Commonwealth.
That is, for admission into this political Union, which is not a republic, which is not to
be called a dominion, kingdom, or empire, but is to be a Union by the name of
"Commonwealth," and I do not propose to interfere with that in the slightest degree.
10 END QUOTE
.
Safe to state that the Commonwealth of Australia is a POLITICAL UNION existing by the
legal provisions and referendums of the (then) colonies!
Further, the Framers of the Constitution made clear that there are no constitutional powers to turn
15 the Commonwealth of Australia into a Republic!

Hansard 16-9-1897 Constitution Convention Debates


QUOTE
The Right Hon. G.H. REID: That is the point. Under this constitution, with the
20 leading principle in it that it is not to go beyond what is in it, no principle or subject
which is not expressed within its pages can be dealt with by the federal parliament.
Looking that in the face, I say it is possible to distinguish between the questions in which
the voice of the nation must be supreme, and questions in which the voice of the states must
be represented.
25 END QUOTE
.
What we have therefore is that the Governor-General can only be validly appointed upon
recommendation of the Home Office (10 Downing Street) any the Queen and any salary is
payable to the queen and the Governor-General simply has to sort out with the queen what salary
30 he/she is receiving from the Queen.
Fancy the Queen to appoint Prince Charles and then he is Governor-General and retires with a
lifetime pension only then to become King! Likewise so with Prince William!
The following quotations show that the Framers of the Constitution extensively debated the
appointment of a Governor-General and held that if a Governor-General was not appointed upon
35 the recommendation of the Home office by Her majesty then there was no legal link with the
Crown. What this means that effectively all and any purported royal assent given never was valid
as constitutionally the British crown only can give royal assent and not the queen of The
Netherlands, the Queen of Denmark, the Queen of any other nation but only the British Crown.
The delegates clearly opposed any appointment through the Commonwealth of Australia
40 government as it also feared that the Governor-General might then become a political instrument
for the government. Also it opposed an elected Governor-General as to avoid a power struggle.
.
It should be understood that the governor-General apart of ceremonial duties has in fact a very
important role to play. If there is a double dissolution and a battle for power then the Governor-
45 General, as at the time of federation, may very well as the CEO have to deal with matters,
including the payment of monies from Consolidated Revenue Funds to ensure that the entire
administration is not grinding to a halt. And there are numerous other roles to play but I do not
intend to refer to them in this document.
.
50 It also should be understood that constitutionally the Governor-General is the representatives of
the Queen in Her Majesty’s absenteeism and hence there is no such thing as some member of the
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royal family coming to the Commonwealth of Australia to act on behalf of the Queen because
not only would this be an insult to the governor-General but also would be in conflict with the
constitution!
.
5 Hansard 9-4-1891 Constitution Convention Debates
QUOTE
Application of provisions relating to Governor-General.
4. The provision of this Constitution relating to the Governor-General extend and

apply to the Governor-General for the time being or other the Chief Executive

10 Officer or Administrator of the Government of the Commonwealth,

by whatever title he is designated.

END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
15 QUOTE
Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a
clause in the American Constitution; but the President there is practically never absent from
the seat of government. This clause, however, would allow the governor-general to draw
his full salary during a year's leave of absence; and I would point out that that leave of
20 absence rests with the authorities in Downing-street. The clause, therefore, would allow
the Colonial Office to arrange that the governor-general should draw his full salary during a
year's absence, when an administrator would have to be appointed in his place, who would
have to be paid a large salary for doing the work. Who would pay him?
An HON. MEMBER: The governor-general!
25 Clause, as amended, agreed to.
END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
QUOTE
30 Mr. PLAYFORD: But the Queen has the power to refuse it!

Dr. COCKBURN: If the governor-general by letters patent is instructed to exercise


that power, he will do so. Unless something is definitely stated on this point, I imagine the
letters patent to the governor-general will be in this particular no different from the letters
patent to ,the governors of the different colonies; and I wish to ask the hon. member, Sir
35 Samuel Griffith, whether it is his intention, in connection with the commonwealth, with all
the presume which it will have, that an important matter such as the dissolution of
parliament, which is purely a local matter, should not be vested in those ministers who are
directly responsible on the spot to the people of the colonies?

Sir GEORGE GREY: I am afraid I shall lose my chance of moving an amendment to


40 this clause if I do not do it at this stage. I move:

That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted
with a view to the insertion of the words "There shall be."

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The intention is that the governor may be elected. I feel that in bringing this subject under
the notice of the Convention I am entering upon very delicate and very debatable grounds
But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the
manner in which this question is dealt with. This is a question of the interests of nearly
5 4,000,000 persons at the present moment who look to us; and it appears to me extremely
inexpedient that the power of appointing the governor-general to rule so vast a confederacy
should be left in the hands of any minister of the day in Great Britain. The terms used are
"the Queen shall appoint"; but we all know perfectly well that that means that the
minister for the time-being shall appoint such person as he pleases, whilst such
10 appointment might be absolutely obnoxious to her Majesty herself. The meaning of
the thing is that a friend or any other person chosen by the minister may be appointed
without the people of this great confederacy being in any way consulted. I understand
that the reason usually alleged for that by persons who support the appointment being
made by the Queen is that a social appointment is to be made. That is the term usually
15 applied-it is a social question, and not a political question. I contend that the question is
twofold, and those two things cannot be separated. The governor has political functions
to exercise and he has social functions to exercise, and in either case I hold that a
person so appointed is much less fitted to exercise those functions than a governor-
general chosen by the people of the country would be. I do not understand how it can
20 be said that any social ends whatever, or, at all events, of [start page 562] any
magnitude, are attained by the appointment of the governor-general by the Crown;
but I do hold that social ties and social questions of the strongest possible kind require
that the governor-general should be elected by the people of the confederacy. Take the
case of a widowed mother, herself well educated, perhaps brought up as a teacher in
25 one of your public schools, and possessing great ability; imagine her with her
orphaned children, deprived of a father, night after night teaching those children,
with a hope that the highest offices of the state of every kind may be open to them all.
Is not that a social question-a social gathering of the highest and noblest kind? And
hundreds, I may say thousands, of such social gatherings would be witnessed every
30 night in this great commonwealth, if all the highest offices of state were filled by
election by the people. If you follow it out, you will find that in all social relations of
the family-fathers, mothers, children, brothers, sisters-this question is intimately
concerned as being something which binds the whole family together for common
objects, and opens paths of distinction to every one of them, if they prove themselves
35 great and deserving men. Why should you say to all these 4,000,000 of people, "No
one of you, nor any one of the other millions who are to occupy this country, shall
have the slightest chance of ever attaining to an honor of that kind"-that it shall
always be open, as it certainly, or almost certainly would be, to distant persons with
no claim whatever upon the inhabitants of this country, all of whom would be shut out
40 from so great an opening as that of which I speak? It is more materially necessary that
we should consider this point now, and that we should come to a just decision upon it,
because I will show hereafter, as the discussion on the bill proceeds, that in every instance
all hope is shut out from the great masses of the colony to succeed to any one of the
important posts which under this bill will be open to the people of Australia. I say that,
45 looking to our duty to our Sovereign, we owe it to her to select the worthiest man we
know to represent her here-to be certain that the man so chosen is worthy to represent
her; and in no other way than by his being chosen by ourselves from people whom we
know can we be certain that the worthiest man will be chosen to represent the Queen
within the limits of the great confederacy which we are about to constitute.
50 Considering the openings that would be given to every inhabitant of Australasia
under such a system as I propose, with so many families, as will necessarily do it,
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directing their every exertion and effort to raise up children worthy of the great
opportunities laid open to them, I ask whether this is not to us a greater social
question than a few balls and dinners given at Government House, at which none but
those in the immediate vicinity can be present? I ask what comparison is there
5 between these two things-one great and far-reaching, extending to millions, the other
a mere sham, as it were, representing what passes in another place, as if one were
looking through the wrong end of a telescope at some procession that was going on?
All matters connected with Government House are diminished here as compared with
Great Britain and the influence exercised there. There it is the influence of an
10 hereditary monarch descended from a long line of ancestors. There it is the influence
belonging to certain professions-the army and navy-who look to receiving honor from
the hands of such a sovereign. Here there are no ties whatever of that kind; and yet
for a mere imaginary show, or what is called the performance of social duties-
entertaining strangers and also citizens immediately surrounding the vice-regal court,
15 which are the only benefits that are abso- [start page 563] lutely gained-all those
benefits that I speak of are lost. Let us look at it in another way, which is also worthy
of our consideration. What is the necessary consequence of having a governor-general
of this kind, with an enormous salary, and vast expenditure upon various subjects-a
salary more than adequate to the duties to be performed? You will find set down in
20 this bill a salary of £10,000 a year.

The VICE CHAIRMAN: I ask the hon. member not to discuss that matter, as the
question of salary is dealt with in the next clause.

Sir GEORGE GREY: I find a difficulty in separating the two questions. They may be
separated in clauses; but the one argument will hardly carry the full meaning of what it is
25 necessary for me to say so that the matter maybe understood. I hardly see how it is possible
for me to divide the subject, because if I admit that the governor-general should be
appointed by the Crown, what is the use of my afterwards arguing about the salary? If,
whilst I am arguing upon what must follow upon the appointment of governor-general, I
cannot refer to the salary, how can I make the matter thoroughly understood? I would
30 submit, sir, that this is a case in which clearly it is impossible to separate the two.

Mr. FYSH: Go on!

Sir GEORGE GREY: Well, I can allude generally to the subject of powers and
functions. Limiting myself, then, to the use of the term large, salary, may I say, without
naming the exact amount, that the President of the United States, until but lately, received
35 £6,000 a year for his salary for ruling 40,000,000 people, and at the present time I believe
his salary is £10,000 a year for ruling 60,000,000 people, and daily augmenting in number.
Here we are expected to pay at least as large a salary as is paid to the President of the
United States for ruling 60,000,000 people, and to pay a governor-general nominated by the
Crown. I ask is it just whilst so many poor people have to be taxed to pay their share
40 of that salary, to deprive them of the honor, and, I may say of the just pride, of
themselves electing some worthy man, known throughout so great an extent of
country as Australia, to occupy that honorable post, with the certainty that such an
example will operate upon every individual of the community, stirring noble faculties
in many men, giving hope, perhaps, to some thousand or more of the people that they
45 may possibly attain to such an honor? Is it right to make the people pay such sums of
money, and to deprive them of honors to which they ought justly and rightly to look?
And when, as I shall prove by-and-by, as we go on with the bill, each office is closed
by some restriction or other to all chance of fair competition in the country, let us, at
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the very first, indicate in this clause that this great office shall be open at all times to
that man in Australia who is deemed the greatest, and worthiest, and fittest to hold so
noble a post, and to satisfy his fellow-citizens that they have wisely chosen one who
will be an honor to the whole community. Can any of us believe that if at the time of the
5 disturbances in the United States in regard to slavery a man had to be chosen by the British
ministry of the day in London, there was the slightest hope that such a man as Lincoln
would have come to the front to achieve the great and noble objects which he
accomplished? I am sure the universal admission must be that there would have been no
hope of such a thing. Yet from the forests of the United States there came one who had
10 been a mere splitter of timber, worthy justly and rightly to exercise the highest power for a
time in the United States and to accomplish the great ends at which he aimed. Are we in
Australia to be told that also can find no man worthy to succeed to a post of that
kind? Are we to be told that we must [start page 564] forego the chance of selecting a
man of that sort, and that some thousands a year must be expended unnecessarily,
15 when the money might be applied to great and good objects? And if it should be so
expended will it be for the benefit of the people? No. I say it will be to their detriment,
by depriving them of such just objects of ambition-objects just in themselves, find
which would soon be dear to the hearts of all. To my mind, to subject the people of
this new federation to a rule of this kind is to degrade, and not to ennoble; is to lower
20 them in their own estimation, instead of raising them in their own estimation; is to say
that they are not worthy to compete with their fellow-men in other parts of the world.
As far as it rests with myself, I know that I am venturing upon dangerous ground. I
know that I must raise enmity in many minds by what I am doing.
Hon. MEMBERS: No!

25 Sir GEORGE GREY: But I feel it my duty to run this risk in order to tell what I
believe to be impregnable truths, and to try to lead this Convention to do that which I
am confident will stamp greatness upon every man who assists in obtaining that
benefit for his country. I believe that those who force this clause into this bill, instead
of not having done good to Australia, will virtually have conferred a great benefit
30 upon the country by creating a necessity for a discussion of this question. If, now that
the question has been raised, it is decided in favour of the people of Australasia-if they
are told that this great boon is open to them; if this night we send a thrill from one
part of the country to the other with the news that this great object has been attained,
I say it will have been for all those who have aided in it one of the happiest days in
35 their lives, and that they will be benefactors to countless generations yet to come in
having obtained so great and good an object for them. And further than that, I say
that to attain this object, to gain this principle will be to ensure for a long period of
time the love of Australasia for England; to remove to a greater distance all chances of
separation between the two countries, and to lead me, and I believe many others, to
40 rest assured that a step of the strongest kind has been taken to strengthen the great
union of Australasia for yet centuries to come, instead of endangering it, as I am
certain will be the case, by blocking that union with the disastrous admission that we
must take from Great Britain such governor-generals as she may please to send out,
and that none of the citizens of this country may hope to obtain that great and, shall I
45 call it, magnificent office. Actuated by these sentiments, I have felt it my duty to raise
this question, and I trust that I shall have some support, if not a majority of the
Convention, ill favour of that which I ask for.

Amendment proposed.

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Mr. MUNRO: I am rather surprised at the hon. member, Sir George Grey, bringing this
question forward at the present time.

Dr. COCKBURN: He mentioned it in the former debate!

Mr. MUNRO: The hon. gentleman was a member of the committee which drafted the
5 bill. Was not the matter thrashed out by the committee?

Sir SAMUEL GRIFFITH: We are not bound by the report!

Mr. MUNRO: I do not say we are; but the hon. gentleman told us that the arguments
made use of in the committee were sufficient to convince him that he was wrong, and I
thought the same course might have been followed on the present occasion, because if he
10 was wrong in his views then most assuredly he is wrong now. The hon. member tells us
that one of the great effects of electing our own governor-general would be to put him in
the position of Abraham Lincoln-to give him similar [start page 565] powers and a similar
position. Under our form of government that position is occupied by the Prime
Minister, and no matter whether the governor-general were elected or not, he could
15 not under constitutional government exercise the functions which Abraham Lincoln
exercised. No governor-general could undertake that responsibility, whether
appointed by the Crown or not. If the hon. member's argument were carried out to its
legitimate issue the people of England ought to elect their sovereign. That is really
what it means. The governor-general is to appear here as the representative of the
20 Queen. Under our constitution the Queen is to be in some sense present among us.
The only way in which we can have her present is through her representative, and if
her representative is to be elected by us, and not by herself, he will be not her
representative, but ours. To carry the hon. member's argument to its legitimate issue,
therefore, he ought to say that the people of the empire should elect their own
25 monarch. That is what it means. If the hon. member is not prepared to say that, he
ought not to go to the extent to which he wishes to go. I do not think, however, that
this is a matter to which we ought to devote much time at this stage; because, since we
have already agreed-and we have done so that we are to have a form of constitutional
government under the Crown, we must allow the Crown the power of being
30 represented in the union. If we carry out the proposal of the hon. member, the result
would be that we must abandon the proposed union, and have a union in a different
direction, certainly not under the Crown. The hon. member said the result of his
proposal would be to strengthen the union with England; but I think few persons will
agree with him in that respect. I think the people of Australia will agree with me that
35 the result of his proposal would be to weaken the union. We should, in fact, begin to
ask why we were connected with England at all. If we could appoint our own
governor-general, if we could carry, on all our legislation, and do the whole of our
business, the question would soon be asked what we had to do with England, and then
where would the connection be? I do not see the necessity for considering the hon.
40 member's proposal at the present time. I am proud of being a citizen of the great
British empire, and shall never fail to be proud of that position. I have no desire to
weaken a single link binding us to that empire, whether as regards the appointment of
a governor-general or anything else. I desire to hold those links sacred, and if possible
to strengthen them, and I am satisfied that in making his proposal the hon. member is
45 not consulting the feelings of the people of Australia.

Sir GEORGE GREY: I wish to answer a few of the arguments raised by the hon.
member. I understood him to say that Abraham Lincoln would not be wanted here.
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Mr. MUNRO: I did not say that. I said that our governor-general could not do what
Abraham Lincoln did in America!

Sir GEORGE GREY: And that in that way he would have been unnecessary.

Mr. MUNRO: That be would be unable to do what Abraham Lincoln did!


5 END QUOTE
.
Hansard 1-4-1891 Constitution Convention Debates
QUOTE
Sir JOHN DOWNER: Listening as I do, with the greatest pleasure to everything
10 that falls from the hon. member, Sir George Grey, I should be anxious in every way to
agree with him if I could by any means bring myself to concur in his views. If the hon.
gentleman had commenced his argument by asking what was the necessity for a
governor-general, or for a governor at all, he might have appealed to the sympathies
of a good many of us, because, as Mr. Deakin said, the office both of governor-general
15 and of the local governors must in the nature of things be so much of the character of
ceremonials, and have so little substantial authority, [start page 572] that had the hon.
gentleman suggested that we should dispense with these-as some persons might consider
them-baubles, there might have been a good deal to be said in favour of the proposition.
But when the hon. gentleman, who I think generally believes in the British Constitution, at
20 the same time advocates with such earnestness, eloquence, and seriousness the appointment
from amongst ourselves, and from our own population of the gentlemen occupying the
position of governor-general, I would ask him in what position will the governor-
general be when he is elected? If he is elected by the voice of the people, does the hon.
gentleman assume that history will not repeat itself, and that the governor-general
25 will not assume a position something like that of the President of the United States, so
that the cry amongst political parties will be, "Who is for the president, and who is
against him?" If what we want to do is to get rid of the authority of the Queen, and to
make the real substantial authority of the realm the person in the position of
governor-general, the way to do it is to appoint the governor-general in the way the
30 hon. gentleman suggests; but if we want to retain the authority in the people-apart
from the question whether it is to be in the senate or in the house of representatives,
or in both co-ordinately-subject to the authority of the Sovereign, it would be inviting
at once an interference with that authority to put at the head of the government a
person elected by the people, and who, from the very nature of his election, would
35 speak with authority, and assume a dominion over the commonwealth, which we are
certainly not prepared to concede. I think the hon. gentleman must not attribute to any
one of us the slightest disrespect, or feel hurt because we do not arrive at the same
conclusions as be has arrived at, because, although, as the hon. member, Mr. Deakin, said,
as a general principle, we think that all authority should come from the people, and that all
40 officers should be elected by the people, we are not prepared to interfere with the cardinal
principle of our constitution, and that is, that the nominal head of the government should be
only the nominal head of the executive, and not become a real, substantial, legislative force
in the community.
END QUOTE
45 .
Hansard 1-4-1891 Constitution Convention Debates
QUOTE

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Clause 3. The annual salary of the governor-general shall be fixed by the Parliament from
time to time, but shall not be less than ten thousand pounds, and the same shall be
payable to the Queen out of the consolidated revenue fund of the commonwealth. The
salary of a governor-general shall not be diminished during his continuance in office.
5 Mr. BARTON: I propose to omit the words "the same" as being quite unnecessary. The
alteration will, I think, improve the bill.

Sir HARRY ATKINSON: I should like to see all the words after "from time to time"
omitted, for I do not see why we should fix the amount at £10,000. I therefore move:

That the words "but shall not be less than ten thousand pounds" be omitted.
10 Mr. GILLIES: I should like to know from the hon. member the object of omitting the
words. Is it that there shall be no salary at all?

Sir HARRY ATKINSON: No; it is that the federal parliament shall be left perfectly free
to deal with the question of salary itself.

An HON. MEMBER: I suppose the hon. member would do the same with the
15 ministers?

Sir HARRY ATKINSON: I should do exactly the same with the ministers!

Mr. MUNRO: I feel that the hon. member, Sir Harry Atkinson, cannot have considered
what he proposes to do. The governor-general must be appointed before the parliament is
called into existence, and does the hon. member think that any one will take the office
20 without some assurance that he will get a salary of some sort? Surely the governor-general
ought to know Something about the office be is to fill and the emolument attached to, the
position! If the amendment be made the result will be that the appointment will be made
without any assurance as to the emolument which the holder is to receive. The hon.
member says he will make a similar proposal with regard to the ministers of the Crown. I
25 venture to say that the two proposals are really unwise, and that we ought now to attach
some decent salary to the office giving power to the parliament to vary it, but not to reduce
it during the term of office of the gentleman appointed afterwards. My conviction is that a
salary of £10,000 is altogether inadequate for the office. My feeling is that the gentleman to
be appointed ought [start page 579] to be equal to the gentleman appointed as governor-
30 general of India. He ought to be a gentleman capable of being a cabinet minister in
England, and for that purpose the salary ought to be very much larger than what is
proposed. I do not think it is to the advantage of the colonies to hawk this position about in
such a way that no man of good standing or position will take it. When the Constitution of
Victoria was agreed to many years ago, I think the population of the colony was about only
35 250,000, and yet they fixed the governor's salary at £10,000, with an allowance of £5,000,
making it £15,000 in all. Since then it has been reduced to £10,000 a year, but a house is
provided furnished, so that practically the emolument comes to £15,000 a year now. Now,
this Convention, representing the whole of Australia, is going to give the governor-general
a salary equal to what is given to the Governor of Victoria at the present time.

40 Mr. CLARK: You will reduce yours!

Mr. MUNRO: No, we do not intend to reduce ours. We think the Governor of Victoria is
entitled to the salary, and perhaps more, if we could afford it. At any rate, I think that
instead of striking out these words, and making the amount indefinite-in fact, making no

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provision at all-the words ought to be struck out with the view of increasing the amount
very considerably.

Sir SAMUEL GRIFFITH: Another reason why the words should not be struck out is
not only the importance of the first governor-general knowing how much be is to get-a very
5 important consideration in choosing him-but that the federal parliament might simply by
reducing the salary cut the connection with Great Britain altogether. Supposing that it were
to reduce the salary to £100 or £1,000 a year! That is the reason why in all the constitution
acts there has been the reservation of a fixed sum, which is made payable to her Majesty,
so that she has always money to pay her governor-general, and therefore can always
10 secure the appointment in the country of her representative with an adequate salary. I
agree with the hon. member, Mr. Munro, that the salary is too small, having regard to the
salary given to the Governor of Victoria.

Sir JOHN BRAY: I think it is desirable to fix the salary of the first governor-general.
The clause says that the salary shall not be less than £10,000. It is very possible, I think,
15 that that expression may lead to very serious misunderstanding. It is an intimation to the
governor-general that he shall get £10,000 a year, and probably a good deal more than that.
He ought to know when appointed what his salary is to be, and I think, therefore, that the
salary of the first governor-general should be fixed in the bill. The words "but shall not be
less than" should therefore be omitted.

20 Sir SAMUEL GRIFFITH: That would enable the federal parliament to reduce the
salary to £1,000!

Sir JOHN BRAY: No, because the clause provides that the salary shall not be
diminished during the governor's continuance in office. But I am astonished to hear it
suggested that the federal parliament would be so supremely ridiculous as to fix a
25 nominal salary for a governor-general. It is to my mind utterly out of the question to
imagine that such would be the case. If we leave the clause as it stands we say to the federal
parliament, "We cannot trust you to fix the salary; we will fix it at not less than £10,000,
whatever the circumstances of the federal government may be." Surely if we give the
federal government the powers which it is proposed to give them we can trust them to see
30 that proper provision is made for the salary of the governor-general. I think we should fix
the salary, of the first [start page 580] governor-general at £10,000, leaving it to the federal
government to fix the salary subsequently.

Sir SAMUEL GRIFFITH: The hon. member, Sir John Bray, surely could not have
heard my argument. Does he suggest that the framers of the constitutions of the various
35 colonies did not understand their business? This reservation in regard to the salary of
governors is made in the whole of the acts.

Sir JOHN BRAY: But there is power to alter the act!

Mr. GILLIES: Only by a certain majority!


Sir SAMUEL GRIFFITH: The salary cannot be diminished unless by an amendment of
40 the act, and that is the object of the reservation. The idea is to secure the means of
providing a representative of the Queen in the colony with an adequate salary. I will put
this illustration. If you give to the federal parliament absolute power to reduce the salary,
some persons may be constantly endeavouring to earn a little cheap popularity by
proposing reductions. You will have continual agitations for the reduction of the salary to

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£8,000, or £6,000 or less. It would, perhaps, be regarded as a very popular move on the part
of some persons.

Dr. COCKBURN: Is that not rather a serious reflection upon public opinion?

Sir SAMUEL GRIFFITH: I have heard of persons who, in order to gain a little cheap
5 popularity have been capable of that sort of thing. I think the proposed amendment would
be a great mistake. The salary of course could be altered as part of the constitution; but then
it would be only by the deliberate action of a majority of both houses, and with the
approval of the states.

Sir JOHN BRAY: Why not leave the salary to the federal parliament?
10 Sir SAMUEL GRIFFITH: It might then be determined by an accidental majority
perhaps at the end of the session.

I understood the hon. member to suggest that the salary should not be either increased or
diminished during the governor's tenure of office, and to argue that if the words "but shall
not be less than" were retained, the governor would perhaps expect more than £10,000. I
15 hope, for the reasons I have given, that the Committee will not omit the words.

Mr. DEAKIN: There is another contingency possible, if the hon. member, Sir John Bray,
feels that there is force-and there is force-in the remarks of Sir Samuel Griffith as to the
necessity for protecting the salary of the governor-general against hasty reduction, allowing
it to be reduced only by the machinery provided for an amendment of the constitution. The
20 hon. member can yet press-and very properly-an amendment omitting the words "not less
than," because while this renders it impossible to diminish the salary without altering the
constitution, it leaves it perfectly possible to increase it by means of an ordinary bill.

Sir SAMUEL GRIFFITH: That is as the clause stands now!


Mr. DEAKIN: If it were desired to provide £12,000 or £15,000, the extra amount could
25 be appropriated by an ordinary act of parliament, because it would not alter the
constitution. I think, therefore, that the hon. member, Sir John Bray, is justified in pressing
his amendment to the point of rendering it necessary to alter the constitution, if it be wished
to raise or diminish the salary of the governor-general.

Sir SAMUEL GRIFFITH: Why for the purpose of raising it?


30 Sir GEORGE GREY: I entirely differ from the hon. member, Sir Samuel Griffith, in
thinking that the power of reduction would be exercised for the sake of popularity. It is to
suppose that a majority of the federal parliament would make an alteration from an
unworthy motive. It might [start page 581] be thought that the salary was much too large,
and that it was injurious to the interests of the colony to pay such a large salary. The salary
35 of the governor-general should be reduced whenever Parliament so desires, and should be
increased at any time parliament may see fit to increase it. I think parliament ought to have
the fullest power in fixing the salary.

Sir JOHN BRAY: I understand that if the amendment of the hon. member, Sir Harry
Atkinson, is put, and it is determined that the words shall stand, the amendment I desire to
40 move cannot be put.

The CHAIRMAN: That is the case.

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Sir HARRY ATKINSON: With the permission of the Committee, I should like to
withdraw my amendment.

Amendment, by leave, withdrawn.

Sir JOHN BRAY: I move:


5 That the words "but shall not be less than," line 3, be omitted with a view to insert in lieu
thereof the words "and until so fixed shall be."

Sir SAMUEL GRIFFITH: That is exactly the same amendment; it strikes out the
minimum!

Sir JOHN BRAY: It is not the same. My proposal is that the salary of the governor-
10 general shall be £10,000 until it is fixed by the federal parliament. Surely we ought to
intrust the federal parliament with the power of making proper provision for the salary of
the governor-general, and ought not to make it necessary to alter the constitution act in
order to alter the salary paid to that official. If we have any faith whatever in the federal
parliament, we ought not to hesitate to empower them to either reduce or increase the salary
15 as may appear to them to be necessary.

Mr. GILLIES: I should have been pleased if the hon. member, Sir John Bray, had
replied to the statements made on the other side by the hon. member, Sir Samuel Griffith, in
reference to what has been the universal practice. The hon. member must surely know that
the salaries of judges and other high officials are fixed by act so that they may be generally
20 known: but this does not prevent parliament from altering them. If the proposed words are
inserted the federal parliament may consider it its duty, as soon as it met, to consider the
whole question of salary. If we are to have a suitable person to occupy the position of
governor-general both he and we ought to know what salary he is to receive.
Sir HARRY ATKINSON: It will be fixed permanently for his term of office!

25 Mr. GILLIES: I beg pardon; we have not yet gone far enough in the clause to decide
that question. The proper thing for us to do is to adhere to the practice in all constitutional
colonies by which the salary of the governor is fixed. It can be altered by parliament, as has
been done in Victoria, in the proper way, provided by the constitution. As my hon.
colleague, Mr. Munro, has said, it was fixed at £10,000 a year, and £5,000 a year for
30 allowances. But the salary could not be altered except in the way provided by the
constitution. That is the case not only with the salary of the governor, but with the salaries
of other high officials, such as the judges. That is a rational proceeding. This course is not
proposed because there is any fear or doubt as to the honor or uprightness of the federal
parliament. It is only proposed because it is desirable in the public interest that every
35 person who is called upon to occupy a very high position in the state should know what his
salary and emoluments are. If it is found desirable afterwards in the public interest to
reduce or increase that salary it can be done by the legislature; but it must be done in
the way provided by the constitution. If we pass the clause including the words which
prevent the salary from being altered so long as the gentleman who first fills it occupies the
40 position, but leaving it open to the parlia- [start page 582] ment to resolve that the salary
shall be reduced immediately he ceases to hold that position, I venture to think that what
the hon. member, Sir Samuel Griffith, has indicated might happen. There might be a
gentleman extremely anxious to be popular, or who might honestly believe that the salary
could be reduced without disadvantage, and he might take steps to reduce the salary
45 forthwith. Why should we not leave this question to be dealt with by the federal parliament,
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but make it necessary to carry out the alteration in the same way as other important
alterations in the constitution have to be made? Why should we leave it to a chance vote of
the legislature to decide this question? I believe that it would be a mistake to do so-not
because I have any fear of the federal parliament, but because I think we should adhere to
5 the practice hitherto followed in constitutional colonies. If it is desired to alter this
provision, let it be altered in the same way as other fundamental provisions of the
constitution are altered.

Mr. KINGSTON: I understand that the contention of the hon. member, Mr. Gillies, is
this: that if in future there is a desire to alter the salary of the governor-general it should be
10 passed in the mode prescribed in the last part of the bill that is, a convention should be
called to consider the question, and there should be no power whatever to give effect to the
desire of the federal parliament, unless by a reference to conventions of the various states
its action was approved. I utterly fail to see the necessity for the course suggested. I am in
sympathy with the amendment proposed by the hon. member, Sir John Bray, to give power
15 to the federal parliament to deal with this matter as from time to time they may think fit. In
the first instance, the amount has to be fixed some how or other, and I have no objection to
the amount now proposed, and it is also rendered impossible to alter the salary which is
payable to a governor-general during his tenure of office. Something has been said with
regard to the practice that obtains in other colonies with reference to the alteration of
20 salaries of this description. So far as Canada is concerned, it appears to me that section 105
of the British North America Act gives to the Canadian Parliament the power to do what is
proposed by the hon. member, Sir John Bray. The provision is:

Unless altered by the Parliament of Canada, the salary of the Governor-General shall be
£10,000 sterling.

25 Dr. COCKBURN: And they did alter it-they reduced it!

Mr. KINGSTON: With regard to Canada, hon. members who have referred to the
practice of other colonies will find from the passage I have quoted that they are not
consistent in their contention. Similarly, with reference to our own little colony, no doubt
we have a provision that certain clauses in our Constitution Act cannot be altered unless the
30 bills for the alteration are assented to by specified majorities. So far as South Australia is
concerned, this restriction of the powers of the legislature only applies to alterations in the
constitution of the two houses, and we have the fullest power by any act of Parliament-
subject, of course, to the royal veto-to deal with this question of the salary payable to the
governor in such manner as we think fit. It appears to me that the precedents referred to
35 support the contention of the hon. member, Sir John Bray. Why, then, should we proceed to
tie the hands of the federal parliament and prevent them from dealing with this question as
they may think fit? I am not going to take exception to the amount of salary proposed. I
have listened with a great deal of interest to the arguments which have been advanced on
the subject of the position of the governor-general, and a late division in this Committee
40 [start page 583] proves that a very large majority of the Convention are impressed with the
idea so eloquently urged by various delegates, that the position of governor-general is
utterly unfit for, and unworthy of acceptance by, every citizen of the Australian
commonwealth. Under these circumstances, there is reasonable ground for doubting
whether or not we are not erring on the side of excessive liberality in fixing the amount to
45 be paid to the first occupant of the office at £10,000 per annum. There is no fair ground
either in precedent, or point of principle, for insisting on the necessity of tying the hands of
the federal parliament in fixing the salary to be paid to the governor-general. There are
much more important questions with respect to which they have a free hand. It is
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inconsistent to give them the fullest power to deal with those important questions while we
refuse to do so with regard to this question of the salary of the governor-general. Subject to
the qualifications that the amount in the first instance shall be specified, and that it shall not
be altered during the continuance in office of any governor-general, I shall do my utmost to
5 give the fullest power to the federal parliament to deal from time to time with the salary.

Sir SAMUEL GRIFFITH: I would call the attention of the hon. member, Mr.
Kingston, to this consideration-does he or does he not intend to make the Queen a
permanent part of this parliament? Does he intend that the commonwealth of
Australia is to be presided over by the Queen? If he does, I ask, does he intend to
10 provide that distinctly by the constitution, and does be wish it to be a real connection,
or that it may, by a passing whim of the parliament, be made merely a nominal one?
This guarantee of £10,000 a year is the only thing reserved to the Queen under this
constitution. We say that the Queen is part of the-parliament, that she is the head of
the commonwealth. We wish her to exercise this function in the commonwealth; but
15 we leave it entirely to the parliament to say whether we shall give her any allowance
for doing so. I maintain that that is wrong in principle. If the Queen is to be part of
the parliament, and to exercise authority in the commonwealth, we must have a
deputy, and we are bound to say that we intend to make provision for the payment of
his salary. That must be part of the constitution, otherwise there need be no salary,
20 and the governor-general may be a mere shadow.
Mr. KINGSTON: I decline to recognise the connection between Australia and the
mother country as resting on such a slender thread as the payment or non-payment of a sum
of £10,000 as the salary of a governor-general; and I say, with all respect to the hon. and
learned member, that it is unfair to put the position in a contrary light. The maintenance of
25 the connection with the mother country was not in the slightest degree endangered by the
provision which we find in the Constitution of Canada.

Sir SAMUEL GRIFFITH: Yes!

Mr. KINGSTON: I have quoted the clause.


Sir SAMUEL GRIFFITH: I believe they tried to reduce the salary, and the act was
30 disallowed!

Mr. KINGSTON: The connection was not in the slightest degree endangered by the
insertion in the Canadian Constitution of the provision which we seek to have embodied in
this bill. Sir John Bray's amendment seeks to give effect to the same principle, and the
power reserved to her Majesty to assent or withhold her assent to Canadian acts, will
35 apply equally to acts passed by the federal parliament of Australia.

Sir SAMUEL GRIFFITH: Has the hon. member considered what a serious thing that is-
disallowance?

[start page 584]

Mr. KINGSTON: No doubt it is a serious thing, and it would be a serious thing if the
40 federal parliament were likely to disregard the obligation to provide a suitable sum for the
gentleman selected for the office of governor-general. But I say we have no right to
consider it probable that they would disregard that obligation. We have had no experience
which will warrant such a supposition. We have no experience to warrant the suggestion
that they will lightly disregard the obligations imposed on them. We have had power in our

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colony to make any regulations on the subject which we might think fit, and I am sure that
the discretion observed in that colony, as in other places where similar laws prevail, will be
sufficient to rebut the suggestion that the power is likely to be abused by a legislature
which should be trusted with it.
5 Question-That the words proposed to be omitted stand part of the clause-put. The
Committee divided:

Ayes, 24; noes, 12; majority, 12.


END QUOTE
.
10 It is “EMBEDDED” within the Commonwealth of Australia Constitution Act 1900 (UK);
Hansard 12-3-1891 Constitution Convention Debates
QUOTE Mr. MOORE:
I feel that this is a question pretty easy of solution. There is no doubt that the command of
the federal forces should be vested in the governor-general of the federated dominion. The
15 whole of the forces should, of course, be under the federal government
END QUOTE
And
Hansard 12-3-1891 Constitution Convention Debates
QUOTE Mr. ADYE DOUGLAS:
20 But here the words used are, "as shall be appointed." Appointed by whom? It can only be
by the governor-general, because I suppose no one here entertains the idea that the
governor-general should be the appointee of the people at large, or of the federal parliament
or any portion of that parliament. The governor-general must be the representative of
the Queen by direct appointment from her Majesty, and that being the case, the
25 government will be carried on in federated Australia in the way usually adopted now in the
different colonies.
END QUOTE
Hansard 1-4-1891 Constitution Convention Debates
30 QUOTE Mr. MUNRO:
The governor-general is to appear here as the representative of the Queen. Under our
constitution the Queen is to be in some sense present among us. The only way in which
we can have her present is through her representative, and if her representative is to
be elected by us, and not by herself, he will be not her representative, but ours.
35 END QUOTE
.
Again;
Hansard 1-4-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
40 and if her representative is to be elected by us, and not by herself, he will be not her
representative, but ours.
END QUOTE
.
The Queen herself could not even alter this, as it is “EMBEDDED” in the Constitution, and it
45 would therefore require a REFERENDUM to approve the amendment of the Constitution to
have a Governor-General appointed any other way.
It would be absurd to hold that the Queen could somehow ignore constitutional provisions,
enacted by the British Parliament, merely upon what the Australian Parliament may desire and so
erode the very security “EMBEDDED” in the Constitution. Now, we do not want an “elected”

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Governor-General (or whatever other name of title he may us) to go in a political battle with an
unelected Prime minister and then claim the moral high grounds, etc. Neither do we desire a
unelected Governor-General who is appointed by an unelected Prime Minister, so that the
electors themselves have absolutely no control over the two men who are wielding power.
5 .
Hansard 1-4-1891 Constitution Convention Debates
QUOTE Mr. FITZGERALD:
Another case I understood the hon. member, Sir George Grey, to put was that be
favoured the appointment of the governor-general of the future dominion of Australia
10 being a colonial appointment. But as long as this country is united to the Crown of
England-and I hope that it is a very long day off indeed when it shall cease to be so-I
maintain that the governor-general of the future dominion of Australia must be the
appointee of her Majesty the Queen, our sovereign, who is the apex of that structure,
and whose name we revere and respect in this colony equally as in any other [start
15 page 165] part of her Majesty's dominions.
END QUOTE
.
See also Chapter 534 Kerr wrong when sacking Withlam
.
20 QUOTE
The Queen is the umpire and can withdraw her commission of a Governor-General if she holds
this required. The Governor-General can withdraw his commission to the Prime Minister if this
is deemed required. John Kerr proved to do so but did it in an unconstitutional manner to appoint
Malcolm Fraser and allow him to pass a bill through the Senate and then call an election. That
25 was not the system embedded in the constitution. The system provides that the Governor-
General, when intervening he does so to call a double dissolution!
.
* Excuse me but what then if there is no money to pay for the ordinary cost of Government like
salaries, paying pensions, pay for the hospitals, to fund an election, etc because the Supply Bills
30 (Appropriation Bills) have not been passed?
.
**#** There is an embedded constitutional power that the Governor-General can draw from the
Consolidated Revenue any funds required in case of such an emergency and the new parliament
then later approves this. Actually, this was the very basis upon which the federation was formed,
35 because there was no Parliament existing when the federation commenced as no elections were
then held. It was the then Governor-General who authorized all expenditure in accordance as the
Framers of the constitution already had contemplated he would. As such, John Kerr could at the
time of the Withlam crisis have simply withdrawn his commission for Gough Withlam and any
other Ministers and proclaimed for a DOUBLE DISSOLUTION and have held elections while
40 authorizing funds to be drawn in the mean time from the consolidated Revenue.
It is a constitutional powers that exist and was used from the federation until the first parliament
passed its Appropriation bills but was ignored by John Kerr and neither seem to have been raised
by others as an existing power.
.
45 For example, after federation had commenced there was an executive but no Parliament. The
Minister had to provide for a federal election and funds for this had to come from somewhere. As
such the Governor-General provided the funds by his authority to draw against the Consolidated
Revenue. Now you may ask where did this money come from. Well, for example Department
transferred to the Commonwealth, which were listed in Section 69 of the Constitution, would be
50 using moneys and as such incurring expenditure as well as receiving monies. As such, monies
were being spend and raised even so no specific commonwealth legislation had been established
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since federation because the time to hold elections, and have the first sitting of Parliament means
that for the time being the Commonwealth operated using state legislative provisions until it was
able to have its own legislation in place.
.
5 As such, the Governor-General has the constitutional powers to draw monies from Consolidated
Revenue provided that subsequently the monies are accounted for in appropriation bills by the
subsequent parliament. Also, monies must be for annual expenditure of the Commonwealth and
cannot be simply because a Governor-General fancy purchasing himself some elaborate and
expensive retreat to reside in.
10 .
If the popular branch of the legislature is not satisfied with ministers, it expresses that
in very clear and unmistakable language; and if that is not sufficient for ministers-if
they want a little more-what the house does is to address the governor, and inform his
Excellency that ministers do not possess the confidence of Parliament.
15 .
As such you cannot have a Minister who is part of the Senate as a Member of the Senate
(Senator) is not accountable to the House of Representatives. It is sheer and utter nonsense that a
Senator, representing State interest is placed in a conflict of interest to be a Minister of State for
the Federal Government as a Federal Executive. The Framers of the Constitution embedded in
20 the constitution that a Minister should be accountable to the House of Representatives and could
be voted upon to be ousted as Minister, and this would not be applicable with a Minister being a
Senator. The House of Representatives has no power to vote about a Senator and neither visa
versa! Hence all Senators appointed by the Governor-General as Ministers are unconstitutionally
appointed!
25 The Federal Executive must be drawn from the federal elected representative of the House of
Representatives and not from a narrowly elected State representative of the Senate!
.
In immediately starting the business of the commonwealth, it is provided that certain
powers may be taken over at once by the executive government of the commonwealth,
30 namely, as to customs, excise, posts and telegraphs, military and naval defence, ocean
beacons and buoys and ocean lighthouses and lightships, and quarantine. Other
matters are left to be dealt with by the federal legislature from time to time as they
may think fit.
.
35 The meaning of this statement relates to Section 69 of the Constitution which placed these
Department under control of the Federal executive without the need of legislation where as other
provisions within Section 51 of the Constitution are legislative powers, not executive powers,
and as such can only be accessed by the Federal Executive upon legislation providing this power.
Indeed this was also the issue of Debate in 1898 when it was then pointed out by a Delegate that
40 Section 51 provides for executive powers but not legislative powers.
.
It also means that the Federal Executive cannot unlimited exercise powers merely because a
subject is within Section 51 of the constitution but can only exercise such powers as are
permitted by legislation within that section and then the Minister can only be provided executive
45 powers within limited legislation by the Parliament for the “peace, order and good
government” and not beyond.
.
Hence, a Minister has no executive powers to just legislative powers for anything that is not for
the “peace, order, and good government. This as any legislation that purports to be beyond the
50 powers to legislate for the “peace, order and good government” is ULTRA VIRES, and as such

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cannot be relied upon by the Minister as giving him executive powers. This issue has also been
canvassed in other previous mentioned Chapters.
.
Hansard 2-4-1891 Constitution Convention Debates
5 Sir JOHN BRAY: I quite agree with Sir Samuel Griffith, that if we are not to overlook
this question entirely it ought to be settled somewhere in this clause, and if the hon.
gentleman sees no strong objection to such a course I shall move the insertion at the
beginning of the second paragraph of the words "for the purposes of this section." It would
be manifestly absurd in regard to the first election of senators to say that if a man is elected
10 in September or October the term of his service shall begin from the preceding January, and
that he shall be entitled to all the privileges of a senator from that date. It is quite possible
that this may not be the best amendment that can ultimately be made, but it seems to me
clear that the second paragraph was drawn with the idea, that it applied to this section only
and not to other portions of the bill. I beg, therefore, to move as an amendment:
15 .
What is clear is , as was later adopted, that you cannot have a person benefiting from
“allowance” or other parliamentarian benefits before having taken up a seat in the Parliament.
Yet, we saw that since the 2007 federal elections elected persons but not having taken up their
seat in parliament somehow then were provided with “allowances” the Constitution only permits
20 for sitting members of Parliament!
.
Hansard 6-4-1891 Constitution Convention Debates
Clause 58. When the governor-general assents to a law in the Queen's name he shall by
the first convenient opportunity send an authentic copy to the Queen, and if the Queen-in-
25 Council within two years after receipt thereof thinks fit to disallow the law, such
disallowance being made known by the governor-general, by speech or message, to each of
the houses of the parliament, or by proclamation, shall annul the law from and after the day
when the disallowance is so made known.
Dr. COCKBURN: I think the period of disallowance is larger than is necessary. It was
30 all very well many years ago, when the communication with England was long and tedious;
but now we have such rapid means of communication that I think two years is too long. I
think it might very well be reduced by one-half or one-fourth. Six months or a year would
be quite sufficient. There is nothing more vexatious than uncertainty in these matters. I
think we should also lay down upon what subjects the power of veto is to be exercised. We
35 shall all agree that in questions of domestic legislation-

Mr. GILLIES: We are not all agreed on the question of the establishment of a
republic!

Dr. COCKBURN: There is no question of that. We want to establish such a


commonwealth as will exist with the least strained relations with the mother country.
40 Nothing gives rise to such vexation as a veto upon questions of domestic legislation. Take
the case of Canada.

Mr. MUNRO: Two years is the period fixed under their Constitution!
.
QUOTE 14-5-2005 CORRESPONDENCE
45 WITHOUT PREJUDICE
The Bulletin 14-5-2005
C/o Gary Linnell, Editor.
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54 Park Street, Sydney 2000
Fax 02 9267 4359
AND TO WHOM IT MAY CONCERN
Gary,
5 I read both you Editor note and the article of Jennifer Burney, both lacking to even
remotely produce a real picture of Hollingworth as Governor-General and the real reason
Hollingworth may have resigned, but kept secret!
Even if you ignore the entire sexual abuse issue scandal, Peter Hollingworth had to go, as I view
he was but the most incompetent Governor-General!
10 As author of various books under the INSPECTOR-RIKATI® trademark, such as;

INSPECTOR-RIKATI® on CITIZENSHIP
A book on CD about Australians unduly harmed.
ISBN 0-9580569-6-X
15
This book in fact then set out the legal issues why Pauline Hanson was wrongly convicted, and
5 weeks later (November 2003) the Court of Appeal used those very grounds to overturn her
convictions!
And not to forget what I have set out in;
20
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25 INSPECTOR-RIKATI® & There is no Government to go to war

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30
INSPECTOR-RIKATI® on the battle SCHOREL-HLAVKA v BLACKSHIRTS
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35 I noted the comment on page 22 of The bulletin 187 may 2005;


“No, I am not a politician. I didn’t think the role [of governor-general] was going to be
political, and I was naïve.”

Few people would understand certain constitutional issues as extensive as I do, and I wish to
40 make it very clear that the Framers of the Constitution (Constitution Convention Bill 1898)
likely never would have proceeded with Federation had they been expecting the tyranny
Hollingworth would allow.

Firstly, Hollingworth himself accepted a POLITICAL appointment by John Howard, totally


45 unconstitutional, as the Framers of the Constitution made clear that a Governor-General was to
be appointed by the Monarch upon recommendation of the Home Office at Downing Street!
The debated and rejected for the Prime Minister of Australia to be involved in any appointment
of a Governor-General as they feared, and rightly so, that it would be a political appointment.

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The Framers of the Constitution made clear that if there was some jack-in-office, then a
Governor-General was to be without political bias and act upon what was in the best interest of
the general public, even if this was to reject the advise of his Minister. Therefore, when John
Howard, through Robert Hill wanted a war against Iraq, Hollingworth seemingly refused to
5 gazette a DECLARATION OF WAR. Hence, there was no constitutional power for Robert Hill,
as minister of Defence, to deploy any Australian troops in regard of a armed murderous invasion
into the sovereign nation Iraq. Still, John Howard, without having any constitutional position to
do so, declared to invade Iraq. Hollignworth there and then ought to have removed his
commission for John Howard, Robert Hill and others to act as Federal Executives and replaced
10 them, and indeed ought to have them charged for TREASON, this Hollingworth failed to do.
Likewise, he failed to stop the unconstitutional federal election on 10 November 2001, when I
complained about its validity. As Governor-General he was to first publish in the Gazette the
Proclamation for the prorogue of the Parliament and the dissolution of the House of
Representatives before any writs could be constitutionally issued. However, writs were issued on
15 8 October 2001, where as the Proclamation was not published until 9 October 2001 (Canberra)
and as late as 22 October 2001 in Tasmania. Hollingworth was made aware of problems, but he
decided to ignore those issues.

I took the matter before the Courts, such as on 7 November 2001 but the case was railroaded by
20 Marshall J of the Federal Court of Australia, and subsequently by the High Court of Australia on
3 October 2003, and also the High Court of Australia on 18 February 2003 and again on 18
march 2003 (a day before the invasion commenced) refused to hear my Section 75(v) of the
Constitution applications.

25 Mr Peter Hanks QC, for the Australian Electoral Commission, the Government (and later also
for Peter Hollingworth- as Governor-General), made false and misleading statement to the Court
as to pervert the course of justice.
While I had my case outstanding against the then governor-General Peter Hollingworth before
the High Court of Australia, I discovered that all judges had a visit to the residence of the
30 Governor-General. Clearly highly inappropriate for judges to have some get together with one of
the parties of a case before them. No wonder my case was railroaded subsequently!

In my view, Peter Hollingworth made the Office of the Governor-General political by siding
with John Howard with his unconstitutional conduct, rather then to fulfil his duties as a
35 Governor-General.
When Governor Green was appointed as acting Governor-General (Administrator)
constitutionally it was for Peter Hollingworth to pay the salary of the acting Governor-General
Green!

40 Neither is it constitutionally permissible for a former Governor-General to take superannuation


from the Consolidated Revenue in regard of his past position as Governor-General!

While many people are wondering why Mark Latham, returning from holidays in 2004 suddenly
announced to cut down superannuation for politicians, and John Howard soon afterwards
45 followed suit without discussing this with the members of his party, the truth is that they sought
to protect their own hide, because they knew from my December 2003 submission that it is
unconstitutional for any Federal parliamentarian and so any Minister of the Crown also to have a
superannuation scheme from Consolidated Revenue in relation to being in Parliament.

50 For a Minister of the Crown, and for this a Governor-General, wants a superannuation then it is
for the Monarch (the queen) to provide for this, nothing to do with the Commonwealth of
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Australia as they are not and were not in employ with the Commonwealth of Australia. Likewise,
Members of parliament are not employed by the Commonwealth of Australia, and are only
entitled to an “allowance” in relation to loss of income while engaged in parliamentarian duties.

5 Perhaps, Jennifer Byrne and yourself ought to be less “bleeding hearths”, so to say, for Peter
Hollingworth and do some real journalistic reporting that shows the reality of Peter
Hollingworth.
Because of deformation laws, I have to be very careful to not make deliberate allegations that
may tarnish a person unduly, hence, I do my homework and then make the claims based upon
10 evidence.

Don’t you think that Mr Peter Hanks QC by now would have sued my but off, so to say, if I
was to make claims he made false and misleading statement to the Court if this was untrue?
Unlike your organization having millions behind you to pay for any deformation claim, I do not
15 have this, hence, need to make sure that whatever I claim is backed up as to avoid , so to say,
having my shirt taken of my back. Yet, somehow The Bulletin seems to lack proper journalism
as to show if the politicising of the Office of the Governor-General was because Peter
Hollingworth himself may have been guilty of doing so!

20 For the record, I never had any formal education in the English language and neither was it my
native language and I did not attend to any journalistic education facility but I view that when it
comes to providing an article you and Jennifer Byrne may still be able to learn a lot from me as
to how get all relevant facts for a story as to avoid it being bias.
When did The Bulletin ever address appropriately the constitutional validity of invading Iraq,
25 such as I placed before the Courts? Sure, the Courts may have prevented matters to be heard
upon their MERITS, but that did not and does not defeat my constitutional challenges against
Hollingworth, Howard, Hill and others.

Come to think of it, you may unlikely have Australian citizenship, albeit may be an Australian
30 national, but that is another story. Citizenship is State legislative powers and ”naturalization” is
Commonwealth legislative powers. Natural born nationals do not fall under either State of
commonwealth legislative powers, as they are inherently entitled to Australian nationality, such
as children born to refugees. Then again, that was one of the constitutional issues I was
challenging before the Courts, and clearly undesirable for the Court to rule upon. Hence my
35 cases were railroaded for this also. Would it not be good if The Bulletin could produce some real
journalistic reporting about those issues? It might even make my membership worthwhile!
See also http://www.schorel-hlavka.com.

Awaiting your response, G. H. SCHOREL-HLAVKA


40 END QUOTE 14-5-2005 CORRESPONDENCE
Hansard 17-3-1898 Constitution Convention Debates
Mr. DEAKIN.-
In this Constitution, although much is written much remains unwritten,
45 As the Framers made clear, the Constitution had to be interpreted as to what was debated during
the Constitution Convention Debates.

When is a proclamation published?


50 Hansard 28-1-1898 Constitution Convention Debates
Mr. BARTON.-
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If we make it read that it shall take place on the date of the proclamation by the Governor-
General it will only take place when the Governor-General will take that action by
publishing a proclamation. Then it would follow the action of the Commonwealth.
Again; will take that action by publishing a proclamation
5 It shows; “Then it would follow the action of the Commonwealth”!

Re: AUSTRALIAN CAPITAL EQUITY PTY. LTD. And: ROGER DAVID BARNARD
BEALE, SECRETARY TO THE DEPARTMENT OF TRANSPORT AND
COMMUNICATIONS; ROBERT LINDSAY COLLINS, MINISTER OF STATE FOR
10 TRANSPORT AND COMMUNICATIONS and THE COMMONWEALTH OF AUSTRALIA
No. WA G14 of 1993 FED No. 141 Legislation (1993) 114 ALR 50 (1993) 41 FCR 242 (1993)
30 ALD 849 (extract)
His Honour concluded that in the case before him the publication of the
instrument was essential to the valid exercise of the power and that no
15 distinction could be drawn between the publication of the notice and the
exercise of the power.

Hansard 1-3-1898 Constitution Convention Debates


The question has been asked whether the Parliament cannot make laws affecting the
20 prerogative. The answer is-"Yes" and "No." The Parliament can make laws affecting
the prerogative in respect of any matter in which it has express power of legislation or
a power necessarily implied. It cannot make laws affecting the prerogative in matters
with respect to which it has no power to make laws.
Mr. FRASER.-Can it not get authority?
25 Mr. BARTON.-Not unless it gets the power in this Act.
By this, where the Federal parliament has legislative powers to provide for elections, then the
manner in which a Proclamation is to be deemed to be published is within its legislative powers
provided it does not interfere with the intentions of the Framers of the Constitution that a
Proclamation only comes into effect when published in the Gazette.
30 As such, the old version of the Act Interpretation Act 1901, as it was previously was
constitutionally valid, and the new version is not where it purport that no publication in the
Gazette is required.
As such, Act Interpretation Act 1901, as it was,
17 Constitutional and official definitions [see Note 2]
35 In any Act, unless the contrary intention appears:

(j) Proclamation shall mean Proclamation by the Governor-General


published in the Gazette;

Was in accordance with constitutional requirements.


40 The new version is now;

Acts Interpretation Act 1901


Act No. 2 of 1901 as amended
This compilation was prepared on 28 February 2005
taking into account amendments up to Act No. 8 of 2005
45
(j) Proclamation shall mean Proclamation by the Governor-General that is
published in the Gazette or entered on the Federal Register of Legislative Instruments
established under the Legislative Instruments Act 2003;

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Now, this means if any Proclamation is not Gazetted then it is and remains unconstitutional and
so ULTRA VIRES, because the Federal parliament posses no constitutional powers to override
the intentions of the Framers of the Constitution (Delegates of the Constitution Convention)! In
fact, the Framers made clear that not even action could be taken upon any Proclamation of the
5 Queen until it was published!
WATSON v_ LEE (1979) 144 CLR 374;
BARWICK C.J.
To bind the citizen by a law, the terms
10 of which he has no means of knowing,
would be a mark of tyranny.
How on earth would anyone know when a document is on a Federal Register, where today I was
unable for about 2½ hours (4.30 am till 7 am) to access it via the Internet. And, in any event
15 Federal Register or not, it cannot overcome the constitutional requirement that it must be
published in the Gazette before it has any legal force! Therefore the wording “or entered” is
deceptive and misleading and may result that Proclamations are registered on the Federal
Register of legislative Instruments and then are found to be ULTRA VIRES because of the
failure to appropriately according to constitutional requirement to publish it in the Gazette and
20 make it available over the counter when required.
Did you ever look at what is shown on the Gazettes? Have you noticed that it states; “Published
by the Commonwealth of Australia”?
Now, lets have a look at what the Act Interpretation Act 1901 states;
25 17A Paper or document purporting to be printed by Government Printer
For the purposes of an Act in which reference is made to a paper or document purporting to
be printed by the Government Printer, the words “Government Printer of the
Commonwealth”, “Government Printer of the Commonwealth of Australia”,
“Commonwealth Government Printer” or “Government Printer of Australia” appearing on a
30 paper or document shall be deemed to refer to the Government Printer.

As I am a registered Publisher, I know too well that “Publishing” and “Printing” are two different
things. Anyone can be a “Printer” by just printing something out of a computer, to print a picture,
etc. However, to be a “Published” means that for example in book publishing you required to act
35 in a certain legal manner. For example obtain a ISBN number for whatever he publishes. Printers
may print “pictures” with floral design or other items on them but simply then hand them over to
the customer without being a “Publisher”. CanPrint, who is a “Printer”, therefore is not
necessarily the “publisher” of certain material they print, if all they do is to print and forward it
to others who then publish it. For example, the “Printer” sending it of in the past to InfoShop to
40 publish Gazettes, (that was until that system was vandalised by the government) and as such
InfoShop were the actual publishers, as they were the one selling the Gazette’s. Therefore,
constitutionally, it is not when the “Printer’ prints Gazettes but when the “Publisher” actually
makes the Gazette available for sale that it is deemed to be Published. If the Publisher, simply
put the Gazette’s in a cellar and withhold it from the general public then it cannot be deemed to
45 have been “Published”.
The Commonwealth of Australia, so its Parliament has no constitutional powers to undermine the
intentions of the Framers, and they made it very clear;

it will only take place when the Governor-General


50 will take that action by publishing a proclamation.
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As such, any recording on some Federal register will not have any effect upon it being published.
As such, the term “or entered” is deceptive, false and misleading and ought to be amended to
“and may be entered” which would mean that it is optional but not relevant to the exercise of the
5 prerogative power.
I …. Do swear that I will be faithful and bear true alliance to Her Majesty Queen
Elizabeth the second, Her heirs and successors according to laws. SO HELP ME
GOD.”
10
Therefore, the governor-General is bound by the oath of his office to fulfil duties within the
boundaries of relevant legislative provisions.
CLAYTON v. HEFFRON (1960) 105 CLR 214

The reasoning of Fullagar J in Clayton v. Heffron (supra) in relation to the provisions of s


15 5B of the Constitution Act 1902 (NSW) is material in this context:
"A manner and form are prescribed by section 5B, and that manner and form must be
observed if a valid law is to be produced. Any prescription of manner and form may be
repealed or amended, but, while it stands, the process prescribed by it must be followed.
That was decided Trethowan's case and I think that the whole of what is prescribed by
20 section 5B relates to manner and form. It does not seem to me to be possible to say that
some of the requirements of the section are matters of manner and form while others are
not. The section describes one entire process - a series of steps, one following on another -
and only the completion of the entire process can produce a valid law." (Supra at 262)
A Governor-General only can be but appointed by the Queen, as the intentions was of the

25 Framers of the Constitution, and anything else will be unconstitutional.

QUOTE
.
Yet again:
Hansard 9-4-1891 Constitution Convention Debates
30 QUOTE
Application of provisions relating to Governor-General.
4. The provision of this Constitution relating to the Governor-General extend and

apply to the Governor-General for the time being or other the Chief Executive

Officer or Administrator of the Government of the Commonwealth,

35 by whatever title he is designated.

END QUOTE
.
Hansard 1-2-1898 Constitution Convention Debates

QUOTE Mr. SYMON.-


40 We know that the Governor is the chief executive officer,
END QUOTE

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Hansard 1-2-1898 Constitution Convention Debates
QUOTE
Sir JOHN FORREST (Western Australia).-
Of course, if it is said that there are no persons in the community, and are not likely to be
5 any, who are competent or suitable for this high office temporarily, it would be a very good
argument, and one having force with me; but unless that is the case-and I do not think it
will be the case and as we are not making this Constitution for to-day or to-morrow,
but for all time, it will be much better to keep altogether separate the judicial and
administrative parts of the Government.
10
END QUOTE
And
Hansard 1-2-1898 Constitution Convention Debates
QUOTE
15 Mr. OCONNOR (New South Wales).-
. It will therefore be altogether a wrong thing to put it in the power of the
Government to appoint to any office in which be will be brought into contact with the
Executive Government a high officer who may be called upon at any time to decide
such questions. The difference between the two positions is so strong that it appears to
20 me to be only necessary to point it out. I can see that there may be inconvenience in
following this course, but it is much better that inconvenience should occur in the
selection of persons to fill this appointment than that it should be within the power
neither of a judicial officer or of the Executive Government at any time to put the
Judiciary in a false position in regard to the Commonwealth. Because, as has been
25 said before, it is [start page 357] necessary not only that the administration of justice
should be pure and above suspicion, but that it should be beyond the possibility of
suspicion; and it would be impossible that a high judicial officer who had to decide
these questions, which may at any time become political questions, should also be in
the relation of having to be advised by the Executive Government-perhaps advised to
30 grant a dissolution of both Houses of Parliament in regard to a dispute which may
have arisen in relation to the validity of a statute; or be might have to decide a
question arising as between state and Commonwealth. On these grounds, I hope that
the essential difference between the Governor-General of this Commonwealth and the
Governor of the states will be recognised, and will prevent the committee from
35 altering the clause from its present form.
END QUOTE
And
Hansard 1-2-1898 Constitution Convention Debates
QUOTE
40 Mr. HIGGINS (Victoria).-
We have no right, in this Constitution, to dictate to Her Majesty to who shall be her
agent. Her Majesty has a right to pick such agent as she thinks fit in any part of the
colony, and we have no right to say-"You shall not do so and so."
END QUOTE
45 And
QUOTE
Hansard 1-2-1898 Constitution Convention Debates
Sir JOHN DOWNER (South Australia).-
From that point of view, we appoint a protector of the Constitution; that is, the
50 Supreme Court, which is to be in a calm ether of its own-removed from party strife
and political passion.
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END QUOTE
.
Hansard 1-2-1898 Constitution Convention Debates
QUOTE
5 Mr. BARTON.-I do not say that; but I have an impression that he would. The words are-
"No person holding any judicial office."
Mr. SYMON.-Any person in active service.

10 Mr. BARTON.-Yes, as my friend says, any person in active service-any Judge who is
not a retired Judge.
An HONORABLE MEMBER.-That would exclude a justice of the peace.
15 Mr. BARTON.-No, I do not think it would. Primarily a justice of the peace was a
ministerial officer who inquired into indictable offences, and committed or not, as there
might be a prima facie case. But a justice of the peace has since been invested by statute
with summary jurisdiction. I question whether that makes the office of justice of the peace
a "judicial office."
20 END QUOTE
The following quotation makes also very clear that 10 Downing Street decides if a
Governor-General is to stand aside, vacate his office, etc. It means that Governor-Generals
not appointed by the Queen of the British Crown are and not upon recommendation of the Home
25 Office at Downing Street are not duly and properly elected and therefore any Proclamation
issued by them or any writs issued by them are NULL AND VOID (ultra vires).
.
Hansard 1-4-1891 Constitution Convention Debates
QUOTE
30 Mr. HACKETT: I observe that the last line and a half is a virtual adoption of part of a
clause in the American Constitution; but the President there is practically never absent from
the seat of government. This clause, however, would allow the governor-general to draw
his full salary during a year's leave of absence; and I would point out that that leave of
absence rests with the authorities in Downing-street. The clause, therefore, would allow
35 the Colonial Office to arrange that the governor-general should draw his full salary during a
year's absence, when an administrator would have to be appointed in his place, who would
have to be paid a large salary for doing the work. Who would pay him?
An HON. MEMBER: The governor-general!
Clause, as amended, agreed to.
40 END QUOTE
.
This apparently did not occur when Governor Green was acting Governor-General!
.
We also have to consider that if the High Court of Australia were to be followed (Sue v Hill)
45 that anyone of the British Crown was ousted by s.44 of the constitution then we would have an
acting Governor-General Like Governor-Green was at the time who was not under the so called
Queen of Australia but under the British Crown as Governor and somehow at the same time as
acting Governor-General deemed to serve the Queen of Australia. Surely no one in his/her right
mind can accept this kind of reasoning to be correct. Yet as the can be demonstrated in the
50 Crown v Josepha van Rooy case His Honour Wood J (see below quotation) made clearly a
distinction between the Crown of the Commonwealth of Australia and that of the State of
Victoria. The Queen of Australia (a political union) is not the same as the British Crown and the

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Queen of Australia couldn’t be the Queen of the State of Victoria as this is the British Crown and
so likewise for Tasmania where I understood Governor Green came from.
.
As a subject of the British Crown I do not accept that a judgment of the High Court of Australia
5 can somehow alter my constitutional status and rob me of my British nationality and indeed the
Calvin's Case 7 Coke Report 1a, 77 also makes clear that this cannot be done towards any of
my natural born children who were born within the commonwealth of Australia. And, again the
constitution Committee 1988 report indicated that it merely “assumed” legislative powers and as
such obviously never bothered to check what the intentions of the Framers of the Constitution
10 actually was and what legal principles there were embedded in the constitution!
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-I would not put such a power in the hands of any Parliament. We must
15 rest this Constitution on a foundation that we understand, and we mean that every
citizen of a state shall be a citizen of the Commonwealth, and that the Commonwealth
shall have no right to withdraw, qualify, or restrict those rights of citizenship
END QUOTE
.
20 (Note; Citizenship governs the political rights of a person and has constitutionally nothing to do
with Australian nationality!)
And
Hansard 17-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.-
25 and I venture [start page 2477] to say there is no other way of securing absolute
freedom to a people than that, unless you make a different kind of Executive than that
which we contemplate, and then overload your Constitution with legislative provisions
to protect the citizen from interference.
30 END QUOTE
.
Hansard 28-1-1898 Constitution Convention Debates
QUOTE Mr. WISE (New South Wales).-
He lays down in express terms the principle which Judge Shipman used as the basis of his
35 judgment in the case I cited yesterday from 22 Blatchford, 131, that is to say, if a state
passes a law the effect of which is to injure the territory or property of persons outside the
state-that may not be the intention, but if the direct effect is to inflict injury upon the
territory or property of citizens in another state-then that law, although in so far as it only
affects citizens within the state that passes it, it is intra vires of the Constitution, it becomes
40 ultra vires in so far as it inflicts injury on the inhabitants of another state. That, I believe,
was the intention, although I feel some diffidence in insisting upon it. This was the view
which formed the basis of the judgment of Mr. Justice Shipman.
END QUOTE

45 Therefore legislative provisions are ULTRA VIRES for so far it trespasses upon the
constitutional limitations of legislative powers. Also, while in the above it was referred to about
the High Court of Australia declaring something to
be ULTRA VIRES, and this was in the HCA 27 of 1999 Wakim case regarding the purported
Cross Vesting Act, this was no more then but an official declaration but the parties were before
50 the Courts already and if the Cross Vesting Act was to be deemed only INTRA VIRES from

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when the High Court of Australia made its declaration then it would have been to little avail for
the party seeking this declaration. Clearly, it was ULTRA VIRES from onset.
.
Hansard 1-3-1898 Constitution Convention Debates
5 QUOTE Mr. GORDON.-
Once a law is passed anybody can say that it is being improperly administered, and it
leaves open the whole judicial power once the question of ultra vires is raised.
END QUOTE
.
10 Quick & Garran's "Annotated Constitution of the Commonwealth of Australia" more accurately
and more meaningfully says that;
QUOTE
"A law in excess of the authority conferred by the Constitution is no law; it is wholly
void and inoperative; it confers no rights, it imposes no duties; it affords no
15 protection.".
END QUOTE
.
Therefore, once a person makes a constitutional based objection then that is the end of it.
More over, the Sue v Hill decision by the High Court of Australia is in total conflict with
20 http://www.geocities.com/englishreports/77ER377.html Calvin's Case 7 Coke Report 1a, 77
ER at 396,
QUOTE
“And the usual and right pleading of an alien born doth lively and truly describe and
express what be 1s. And therein two things are to be observed. 1. That the most usual and
25 best pleading in this case, is, both exclusive and inclusive, viz. extra ligeantiam domini
Regis, &c. et infra ligeantiam alterius Regis, as it appeareth in (a) 9 Ed. 4. 7. b. Book of
Entries, fol. 244, &c. which cannot possibly be pleaded in this case, for two causes. 1. For
that one King is sovereign of both kingdoms. 2. One ligeance is due by both to one
sovereign; and in case of an alien there must of necessity be several Kings and several
30 ligeances.”
END QUOTE
And
QUOTE 7 Coke Report 18 b, 77 ER p399
subdito dato, of a donaison: for that is the right name, so called, because his legitimation is
35 given unto him; for if you derive denizen from deins nee, one born within the obedience
or ligeance of the King, then such a one should be all one with a naturalborn subject.
And it appeareth before out of the laws of King W. 1. of what antiquity the making of
denizens by the King of England hath been.
3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That
40 the parents be under the actual obedience of the King. 2. That the place of his birth be
within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he
cannot be a subject born of one kingdom that was born under the ligeance of a King of
another kingdom, albeit afterwards one kingdom descend to the King of the other.
END QUOTE
45 As the material of the UNREPRESENTED Defendant (Josepha van Rooy) did set out that
Heather Hill was born within the real of the British Crown, and the Commonwealth of Australia
is a “POLITICAL UNION” and never was a monarchy, dominion, republic, etc, then the title of
“Queen of Australia” is a fictitious title and cannot have any legal application.
END QUOTE
50 .

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Again, my children natural born within the realm of the queen cannot be somehow transformed
to a non-existing Australian citizenship nationality that is not even constitutionally permissible
and neither was with their consent.
Likewise, lawyers (so also judges) who were admitted to the bar under oath to the British Crown
5 somehow now would be serving a FICTIONAL Queen of Australia. It means that the current
Governor-General Q Bryce as a lawyer likely was admitted to the Bar under the British Crown
and natural born so and now without any change of oath somehow now is serving the purported
Queen of Australia!

10 His Honour Wood J County court of Victoria in the 6-2-2008 reason of judgment stated;
QUOTE
The sovereign power is Her Majesty the Queen in
right in the State of Victoria rather than Her Majesty the
Queen in right of the Commonwealth of Australia.
15 END QUOTE
.
QUOTE
As such, His Honour held that not the Queen of Australia but that it was the British Crown
itself
20 which provided sovereign powers. However, the colonial powers were provided by the
British Crown and the Federal Constitution, The Commonwealth of Australia Act
1900(UK) also was the British Crown. With the High Court of Australia however having
declared that since 1986 the “Queen of Australia” applies then it cannot be that laws
enacted by the State of Victoria are continuing under the British crown while the laws
25 enacted under the Commonwealth of Australia since 1986 are under the Queen of
Australia.
Indeed, where in Sue v Hill the High Court of Australia made clear that Heather Hill was a
“alien” being born under the British Crown then it cannot be that Commonwealth law
provides for Australian citizenship under the Queen of Australia and then the State using
30 the British Crown enforces this Australian citizenship to appoint police, judges, Members
of State Parliament, etc, as then the police, judges, Members of State Parliament all have
sworn alliance to the Queen of Australia and not having sworn alliance to the British
Crown in which name it seeks to enforce legislation in the name of the British Crown.
The UNREPRESENTED Defendant has also included on the CD filed on 15 November
35 2006 in the “Folder 41 other relevant material” the subfolder”78B 021204” which included
the document
“Form 69-78B-2.doc” being the Section 78B that was before the County Court of Victoria
and used by Mr. G. H. Schorel0-Hlavka in his successful appeals on 19 July 2006 which in
paragraph 17 refers to the Supreme Court Moller decision regarding the oath, etc.
40 While His Honour Wood J did not seem to understand and/or comprehend how critical the
federal issues were to the defence of the UNREPRESENTED Defendant, it was not for His
Honour Wood to assume because of Authorities, no matter how misconceived they were,
that therefore there was jurisdiction without canvasses in details the considerable set out the
UNREPRESENTED Defendant had placed before the Court in her submissions and upon
45 which His Honour Gullaci J based his 15 November 2006 orders.
END QUOTE
.
QUOTE
* So what was the Moller decision about?
50 .
**#** Well let quote a part of the judgment;
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Moller v Board of Examiners for Legal Practitioners [1999] VSCA 116 (30 July 1999)
QUOTE
Sometime during 1992 or 1993 the appellant made inquiries about becoming an
Australian citizen.
5 He then learned that it would be necessary for him to swear an oath of allegiance to Her
Majesty The Queen. The appellant is, however, a staunch republican and did not then
pursue his application to become an Australian citizen, believing that any oath of
allegiance should be to Australia rather than to the Queen.
END QUOTE
10 And
QUOTE
On 24 January 1994 the procedure for obtaining Australian citizenship changed so that
applicants were no longer required to swear an oath of allegiance to the Queen but were
instead required to make a pledge to Australia. Accordingly, in February 1995, the
15 applicant became an Australian citizen.
END QUOTE
.
The latter assumes that Moller became an Australian citizens as a NATIONALITY even so it is
not a nationality at all!
20
Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. KINGSTON (South Australia).-I shall also support the amendment of Dr. Quick,
and I trust that it will be carried. I cannot conceive that in the adoption of legislation on this
25 subject Parliament would do aught else than make the definition uniform and of general
application. If there was any necessity for making that clear, the insertion of the words
"uniform citizenship of the Commonwealth" would accomplish that, but I hardly think it is
necessary. I am impressed with the importance of taking power as occasion arises to
define what shall constitute citizenship of the Commonwealth; and the Bill at present
30 is altogether deficient in regard to giving any power to the Commonwealth Parliament
to legislate on this subject. It seems to me it is a very difficult matter, and one with which
we should not attempt to deal here, but rather should refer it to those who, when necessity
arises to adopt some legislation on the subject, will have all the facts before them, and may
reasonably be supposed to be able to make the best provision for the purpose in connexion
35 with the subject. My honorable friend (Mr. Glynn) referred to the principle which he said
obtained, I think, in Germany, where only native-born Germans, or those who are
naturalized in the empire, are admitted to the privileges of citizenship. I asked in the course
of his remarks how would that apply to citizens of the Commonwealth. It is a very difficult
thing to deal with. If you provide that only those shall be citizens of the Commonwealth
40 who were born in it or have been naturalized, you will undoubtedly be putting too strict a
limitation on citizenship. It would be simply monstrous that those who are born in
England should in any way be subjected to the slightest disabilities. It is impossible to
contemplate the exclusion of natural-born subjects of this character; but, on the other
hand, we must not forget, that there are other native-born British subjects whom we
45 are far from desiring to see come here in any considerable numbers. For instance, I
may refer to Hong Kong Chinamen. They are born within the realm of Her Majesty, and
are therefore native-born British subjects.

Sir EDWARD BRADDON.-Are British treaty ports British territory?

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Mr. KINGSTON.-Hong Kong is undoubtedly a British possession, and a Hong Kong
Chinaman is undoubtedly a native-born British subject. Thus, honorable members will see
what difficulties might arise if the privileges of citizenship of the Commonwealth were
extended to all British subjects. If that were done, we should be landed in a difficulty
5 against which it is well to provide. I think the very best, thing under all the circumstances is
to do-what is recommended by Dr. Quick, and give to the Federal Parliament power to,
legislate on this subject as occasion arises. I have no fear whatever but that they will make
wise provisions on the subject-provisions uniform throughout the Commonwealth-for
extending to all British subjects those privileges which they ought to possess, while at the
10 same time safeguarding the rights of the Commonwealth.

Mr. OCONNOR (New South Wales).-I would like to point out to Dr. Quick that he
proposes to give a power to the Commonwealth to legislate in regard to a matter which is
not mentioned from the beginning to the end of the Constitution. The word "citizen" is not
used from beginning to end in this Constitution, and it is now proposed to give power to
15 legislate regarding citizenship.

[start page 1761]


END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
20 QUOTE
Mr. SYMON (South Australia).-I only wish to say a word or two about this proposal. I
think that Dr. Quick will probably see that his amendment may be raising a very serious
difficulty on the one hand, or else that it is unnecessary on the other. I quite agree with him
as to the necessity under some circumstances of giving some definition as to what shall be a
25 citizen of the Commonwealth, but underlying the whole of that is this fundamental
principle: That the citizens of the states are the citizens of the Commonwealth. That is
the fundamental principle we must have regard to, and I ask my honorable friend to
say whether a citizen of the Commonwealth is not a citizen of the state?
END QUOTE
30 .
It should be clear that the citizenship issue is totally misconceived both by the judges of the High
Court of Australia, the judges of the Supreme Court of Victoria, politicians all around, etc. etc.
.
“CHAPTER 03 NOT VOTING IN BANANA REPUBLIC”
35
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ISBN 0-9751760-2-1

40 QUOTE
FORM 69

NOTICE OF A CONSTITUTION MATTER O 73 r 1 High Court Rules

45 UNDER SECTION 78B of the JUDICIARY ACT 1903


MAGISTRATES COURT AT HEIDELBERG
No. of 2002

GERRIT HENDRIK SCHOREL-HLAVKA Defendant


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and

AUSTRALIAN ELECTORAL COMMISSION Plaintiff


5

NOTICE OF CONSTITUTIONAL MATTER

1. The Defendant GERRIT HENDRIK SCHOREL-HLAVKA gives notice that the


10 proceedings involves a matter arising under the constitution or involving its interpretation
within the meaning of section 78B of the judiciary Act 1903.

2. That the Defendant objected to the jurisdiction of the Magistrates’ Court at Heidelberg to
hear the matters arising of the proceedings instituted by the applicant in regard of matters
15 relating to the PURPORTED Federal general election on 10 November 2001.

3. The said Magistrates’ Court adjourned matter, on 16 September 2002, for hearing of the
question of “legal jurisdiction” to be heard on 4 December 2002.

20 4. The outline of the case at hand and is as follows;


(a) The Defendant was born on 7 June 1947 in Rotterdam, The Netherlands of
parents being Dutch nationals and as such, the Defendant by birth was a Dutch
national.
END QUOTE
25 And
QUOTE

5. That I seek this Court to adjourn these proceedings and to place before the HIGH
COURT OF AUSTRALIA a CASE STATED as to have the High Court of Australia to
30 first determine the following matters;

(i) Can a person obtain “Australian citizenship” without first obtaining “State
citizenship” (Quasi States being Territories included)? If so, then by which
constitutional valid manner?
35
(ii) Does the Commonwealth have constitutional powers to define “citizenship”? If
so;
(a) under which provision? And
(b) in regard of aliens and immigrants; or
40 (c) in regard to any person within (b), as well as and including those born
within Australia?

(iii) Does the Commonwealth have constitutional powers to declare and/or grant
citizenship? If so,
45 (d) under which provision? And
(e) in regard of aliens and immigrants; or
(f) in regard to any person within (b), as well as and including those born
within Australia?

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(iv) Does the Commonwealth have the constitutional powers to determine the rights of
a resident in a State to obtain citizenship of such State? If so, by which
constitutional powers?

5 (v) If the adaptation by the State of Victoria of the Australian Citizenship Act 1948
were to be deemed valid, then has the Commonwealth by this the legislative
powers to determine the political rights of the citizens of the State of Victoria,
where purportedly they have no State citizenship. If yes, would then the
Commonwealth be able to dictate who shall be electors by what conditions and
10 override any Constitution provision that may exist within the Victorian
Constitution?

(vi) Where the Constitution of Victoria purports to adapt the Australian Citizenship
Act 1948, is then that part of the Victorian Constitution Federal law and can only
15 be amended or otherwise altered by Commonwealth legislation?

(vii) If the Australian Citizenship Act 1948 is ULTRA VIRES for so far it deals with
granting “citizenship” to any particular person, can then the adaptation of this part
by State nevertheless be held legally enforceable?
20
(viii) If the purported granting of Australian citizenship within the Australian
Citizenship Act 1948 is ULTRA VIRES, then is any State qualification based
upon the Australian Citizenship Act 1948 definition of Australian citizenship also
ULTRA VIRES?
25
(ix) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified State elector, where the purported
Australian citizenship granted to the Defendant on 28 March 1994 was ULTRA
VIRES.
30
(x) Where the Defendant was not a State citizen at the time of election being held,
then was the Defendant nevertheless a qualified Commonwealth elector, where
the purported Australian citizenship granted to the Defendant on 28 March 1994
was ULTRA VIRES.
35 END QUOTE
And
QUOTE
(xxxi) Where the framers held that political rights are obtained “arise by virtue his being a
citizen of a state” there is “dual citizenship” being both “State citizenship” and
40 “Australian citizenship”, then can the Commonwealth, for so far this is deemed to be
within its legislative powers grant any person Australian citizenship and so political
rights of voting (See section 41 Commonwealth Constitution) in Commonwealth
elections? If such voting rights in Commonwealth elections can’t be given is that then
a bar to granting Australian citizenship?
45
(xxxii) Does a person upon obtaining State citizenship AUTOMATICALLY obtain
“Australian citizenship”? If not, why not?
END QUOTE
.
50 Neither the Commonwealth of Australia, albeit submitting on 4 December 2002 to have the
matter transferred to the High Court of Australia, which with my consent was so ordered, albeit
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then the Commonwealth of Australia (as Prosecutor) failed to proceed with this, or the Attorney-
Generals of the States/Territories in any way whatsoever challenged my numerous submissions
and as referred to above finally on 19 July 2006 the County Court of Victoria made orders to the
effect to uphold my cases, without any reservations, including that constitutionally the
5 Commonwealth of Australia cannot force anyone to vote, as the Framers of the Constitution on
15-4-1897 specifically refused to give such legislative powers to the Commonwealth of
Australia.
.
There simply is no constitutional powers for the Commonwealth of Australia to define/declare
10 citizenship! And the Framers of the Constitution specifically defeated Dr Quick’s amendment to
provide such legislative powers!
.
Hansard 11-3-1898 Constitution Convention Debates
QUOTE
15 The CHAIRMAN.-I do not think I can rule this proposed amendment out of order.
Every clause, or nearly every clause, in a Bill in some way qualifies the preceding
clauses. They extend the operation of those clauses, and, in some instances they limit
the operation of the clauses. This is not a distinct negative, and I think it would be unduly
curtailing the power of the committee to arrive at such a conclusion as they may think fit if
20 I ruled this out of order.
END QUOTE
.
Hansard 6-3-1891 Constitution Convention Debates
QUOTE Mr. THYNNE:
25 The union of these colonies must take place in either one or two ways, namely, either by a
unification under one all-powerful parliament, or by a federation which gives to the central
federal parliament certain limited powers and reserves to the other parliaments all other
powers. As I think we may be in danger of overlooking some of the first principles
connected with federation, I may be pardoned if I briefly define some of the characteristics
30 of a federation. I shall quote from Mr. Dicey's recent work, which is very clear in its
language. He says:
One of the characteristics of a federation is that the law of the constitution must be
either legally immutable or else capable of being changed only by some authority
above and beyond the ordinary legislative bodies, whether federal or state
35 legislatures, existing under the constitution.
END QUOTE
And
Hansard 6-3-1891 Constitution Convention Debates
QUOTE Mr. THYNNE:
40 The constitution of this federation will not be charged with the duty of resisting
privileged classes, for the whole power will be vested in the people themselves. They
are the complete legislative power of the whole of these colonies, and they shall be so.
From [start page 106] them will rise, first of all, the federal constitution which we are
proposing to establish, and in the next place will come the legislative powers of the several
45 colonies. The people will be the authority above and beyond the separate legislatures,
and the royal prerogative exercised, in their interest and for their benefit, by the advice of
their ministers will be practically vested in them. They will exercise the sovereignty of the
states, they will be charged with the full power and dignity of the state, and it is from them
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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
5 within the authority conferred upon it by the constitution, but invalid and
unconstitutional if they go beyond the limits of such authority.
END QUOTE
.
Therefore the constitution cannot be amended by the Parliaments and/or the judges!
10 As the Framers of the Constitution made clear that if the High Court of Australia was to declare a
law to be INTRA VIRES then it was not because the High Court of Australia enlarged the
Constitution but merely declared what the constitution already all along provided for! Anything
else would be to amend the constitution in wording and/or application and this was beyond the
powers of the High Court of Australia to do so. Therefore any judicial decision of the High Court
15 of Australia has to be confined within what the Framers of the Constitution intended at the time
of federation and anything like a progressive change to independence not only never was
contemplated by the Framers of the Constitution but in fact made clear the constitution didn’t
permit and was prohibited by the way the Constitution was framed!
.
20 HANSARD 5-3-1891 Constitution Convention Debates
QUOTE Mr. MUNRO:
We have come here to frame a constitution, and the instructions that were given to us,
I am happy to say, are very clearly laid down by the hon. member, Mr. Baker, in the
book which he was good enough to distribute amongst us. He puts it in this form:
25 That it is desirable there should be a union of the Australian colonies. That is one of
the principles that has already been settled by all our parliaments. Second, that such union
should be an early one-that is, that we should remove all difficulties in the way in order that
the union should take place at as early a date as possible. Third, that it should be under
the Crown. Now, I am quite sure that is one of the most important conditions of all with
30 which we have to deal-that the union that is to take place shall be a union under the Crown.
Fourth, that it should be under one legislative and executive government. That also is
laid down by our various parliaments.
END QUOTE
.
35 Hansard 22-2-1898 Constitution Convention Debates
QUOTE Mr. SYMON (South Australia).-

That this is not like an Act of Parliament which we are passing. It is not in the position
which Mr. Barton has described, of choosing or setting up a code of laws to interpret the
common law of England. This Constitution we are framing is not yet passed. It has to
40 be handed over not to a Convention similar to this, not to a small select body of
legislators, but to the whole body of the people for their acceptance or rejection. It is
the whole body of the people whose understanding you have to bring to bear upon it,
and it is the whole body of the people, the more or less instructed body of the people,
who have to understand clearly everything in the Constitution, which affects them for
45 weal or woe during the whole time of the existence of this Commonwealth. We cannot
have on the platform, when this Constitution is commended to the people, lawyers on
both sides, drawing subtle distinctions, which may or may not be appreciated by the
people.
END QUOTE

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.
Hansard 19-4-1897 Constitution Convention Debates
QUOTE
Mr. CARRUTHERS:
5 This is a Constitution which the unlettered people of the community ought to be able
to understand.
END QUOTE
.
Fancy having 7 judges in the High Court of Australia still not being able to agree (Sue v Hill)
10 with each other what the constitution stands for and this after more then 100-years of federation!
This is precisely what the Framers of the Constitution sought to prevent! They tried to make it a
very simple constitution but lawyers as they are like to twist to infringe upon the constitution!
.
Hansard 17-3-1898 Constitution Convention Debates
15 QUOTE Sir EDWARD BRADDON.-
When we consider how vast the importance is that every word of the Constitution
should be correct, that every clause should fit into every other clause; when we
consider the great amount of time, trouble, and expense it would take to make any
alteration, and that, if we have not made our intentions clear, we shall undoubtedly
20 have laid the foundation of lawsuits of a most extensive nature, which will harass the
people of United Australia and create dissatisfaction with our work, it must be evident
that too much care has not been exercised.
END QUOTE
.
25 Hansard 8-2-1898 Constitution Convention Debates
QUOTE
Mr. OCONNOR (New South Wales).-The honorable and learned member (Mr. Isaacs)
is I think correct in the history of this clause that he has given, and this is [start page 672]
one of those instances which should make us very careful of following too slavishly the
30 provisions of the United States Constitution, or any other Constitution. No doubt in putting
together the draft of this Bill, those who were responsible for doing so used the material
they found in every Constitution before it, and probably they felt that they would be
incurring a great deal of responsibility in leaving out provisions which might be in the least
degree applicable. But it is for us to consider, looking at the history and reasons for these
35 provisions in the Constitution of the United States, whether they are in any way applicable;
and I quite agree with my honorable and learned friend (Mr. Carruthers) that we should be
very careful of every word that we put in this Constitution, and that we should have no
word in it which we do not see some reason for. Because there can be no question that in
time to come, when this Constitution has to be interpreted, every word will be weighed and
40 an interpretation given to it; and by the use now of what I may describe as idle words which
we have no use for, we may be giving a direction to the Constitution which none of us now
contemplate. Therefore, it is incumbent upon us to see that there is some reason for every
clause and every word that goes into this Constitution.
END QUOTE
45 .
Hansard 2-3-1898 Constitution Convention Debates
QUOTE Mr. BARTON.
If we are going to give the Federal Parliament power to legislate as it pleases with
regard to Commonwealth citizenship, not having defined it, we may be enabling the
50 Parliament to pass legislation that would really defeat all the principles inserted
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elsewhere in the Constitution, and, in fact, to play ducks and drakes with it. That is
not what is meant by the term "Trust the Federal Parliament."
END QUOTE
.
5 Hansard 3-3-1898 Constitution Convention Debates
QUOTE
Mr. KINGSTON.-How would you define the word "citizen"?
Mr. SYMON.-I do not think that it is necessary to frame a definition of "citizen." A
citizen is one who is entitled to the immunities of citizenship. In short, a citizen is a
10 citizen. I do not think you require a definition, of "citizen" any more than you require
a definition of "man" or "subject."
Mr. ISAACS.-Would you include a corporation in the term "citizen"?
Mr. SYMON.-Why not?
Mr. ISAACS.-Well, in America they do not.
15 Mr. SYMON.-I do not see why a corporation existing in one colony should not have the
rights of a corporation in another colony. Otherwise you defeat the objects of this
Constitution.
[start page 1783]
Mr. ISAACS.-I agree that that ought to be so, but the word "citizen" will not include a
20 corporation.
Mr. SYMON.-Well, in my opinion it should. I
END QUOTE
.
Once again:
25 HANSARD 2-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.-I did not say that. I say that our real status is as subjects, and that
we are all alike subjects of the British Crown.
END QUOTE
30 .
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Of course it will be argued that this Constitution will have been
made by the Parliament of the United Kingdom. That will be true in one sense, but
35 not true in effect, because the provisions of this Constitution, the principles which it
embodies, and the details of enactment by which those principles are enforced, will all
have been the work of Australians.
END QUOTE
And
40 HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. BARTON.- Having provided in that way for a free Constitution, we have
provided for an Executive which is charged with the duty of maintaining the
provisions of that Constitution; and, therefore, it can only act as the agents of the
45 people.
END QUOTE
.
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
50 Mr. DEAKIN.- In this Constitution, although much is written much remains
unwritten,
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END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE Mr. DEAKIN.-
5 What a charter of liberty is embraced within this Bill-of political liberty and religious
liberty-the liberty and the means to achieve all to which men in these days can
reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also
a charter of peace-of peace, order, and good government for the whole of the peoples
whom it will embrace and unite.
10 END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON (South Australia).- We who are assembled in this Convention are about
15 to commit to the people of Australia a new charter of union and liberty; we are about
to commit this new Magna Charta for their acceptance and confirmation, and I can
conceive of nothing of greater magnitude in the whole history of the peoples of the
world than this question upon which we are about to invite the peoples of Australia to
vote. The Great Charter was wrung by the barons of England from a reluctant king. This
20 new charter is to be given by the people of Australia to themselves.
END QUOTE
And
HANSARD 17-3-1898 Constitution Convention Debates
QUOTE
25 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
30 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
35 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
40 .
The politics is that the Commonwealth of Australia Parliament is very limited in its legislative
powers as being a POLITICAL UNION by the colonies (now States) and so trying to achieve
independence is that the politicians can exercise more powers like those in the British parliament.
Hence, their aim for so called independence is more for more power. When therefore the British
45 government declared that Australians were foreigners the Australian politicians grabbed the
opportunity to pretend that from now on Australians would be Australian nationals. The
nationalization act later was renamed nationalization act and citizenship act and later to
citizenship act. The fact that the Framers of the Constitution specifically denied the
Commonwealth of Australia to declare/define citizenship was of no concern to the ever power
50 hungry politicians.

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But in brief, "Australian citizenship" is a term coined by the Framers of the Constitution (as
such prior to federation) and referred to the status of a person to reside in Australia irrespective
of his/her nationality. At that time Colonies used to nationalise aliens to become British subjects
(British nationals) but those who didn't naturalise were still colonial citizens and so Australian
5 citizens. After Federation state citizens would automatically be Australian citizens, and again
nothing to do with nationality. Within the Subsection 51(xix) of the constitution the British
Parliament allowed the Commonwealth of Australia to naturalise aliens to become British
nationals, and this never was amended and as such remains in place. The Framers of the
Constitution specifically stated they were permitted to do so on behalf of the British
10 Government. “British subject”, “to make persons subjects of the British Empire.”, “with the
consent of the Imperial authority”,
For example, the Framers of the Constitution promised the Chinese, for example, that if they
voted for federation they still would retain their franchise (even so they were of Chinese
nationality. As such, at the time Chinese nationals who were Colonial citizens upon federation
15 became State citizens and so Australian citizens even so not being nationalised.
.
What therefore should be clear that the states with their internal legislative powers and the
Commonwealth with its external legislative powers could not abrogate the principles embedded
in the constitution to be a POLITICAL UNION under the British Crown. The judges of the
20 High Court of Australia may have fancied themselves to exercise judicial powers but the truth is
they didn’t. The Sue v Hill case is a NULLITY without legal force as it was not within the
judicial powers of the judges to determine matters in defiance of their judicial constrains to act
within the ambit of the constitution. The judges only can act as interpreters as to what the
intention of the Framers of the Constitution was and not how they fancy themselves to twist its
25 meanings.
.
EITHER WE HAVE A CONSTITUTION OR WE DON’T!
.
This is why the OFFICE-OF-THE-GUARDIAN (Don’t forget the hyphens!) is so vital, this as
30 it is intended to set up education facilities so when judges in future are to adjudicate on
constitutional issues they at least have some appropriate training as to constitutional matters and
never again a judge abstain from handing down a judgment on basis not knowing the
constitutional issues litigated before the Court. The nonsense of having the constitution amended
pending perhaps what kind of political background or association a judge may have never should
35 have been permitted to occur.
.
The Framers of the Constitution made clear that the Commonwealth Constitution of Australia
Act 1900 (UK) didn’t provide any option for a republic and it should therefore be clear that the
con-job of the High Court of Australia in the Sue v Hill case is one I view is a very serious
40 matter of TREASON.
.
HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of
the National Australasian Convention)
QUOTE Mr. ISAACS.-
45 The right of a citizen of this great country, protected by the implied guarantees of its
Constitution,
END QUOTE
People have a right to know their true nationality and not being conned into a misconception. It
may very well be that the nationality issue could be very critical when a child is orphaned and
50 then the nationality can determine who can exercise judicial powers as to the future of the child
and also as to the immediately care to be provided to a child. Likewise so with when an
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Australian is abroad and is in difficulties. Australians are Australians not because they reside in
the Commonwealth of Australia but because they reside in the continent of Australia. (If one can
call it a continent rather then landmass). Australians are not defined by their nationality as such
because as the Framers of the Constitution made clear that if (as was at the time an issue)
5 Queensland did not join the federation it didn’t then stop them being Australians. As such, being
an Australian has and had nothing to do with federation! It is not a nationality but merely
identifies a person to the place of residence.
.
Again in 1982 the High Court of Australia approved the deportation of Mr Pochi on the
10 basis he didn’t have “Australian citizenship” and this clearly was before the purported
Australian Act 1986 (Cth & UK) existed! Hence, it is utter and sheer nonsense to claim that
somehow the Australia Act 1986 gave us a nationality or independence, etc, because it was
and still is an elaborate con-job as Australians born in the Commonwealth of Australia or
naturalized are and remain to be British nationals. There is a lot more to it but I think you got
15 the picture.
.
QUOTE 7-1-2010 CORRESPONDENCE
Australian Government
Department of the Prime Minister and Cabinet
20 ONE NATIONAL CIRCUIT
BARTON

Reference: c09/54418

25 Mr Gerrit Schorel-Hlavka
107 Graham Road
VIEWBANK VICTORIA 3084

Dear Mr Schorel-Hlavka
30
Thank you for your email of 24 October 2009 to the Prime Minister regarding the
Commonwealth’s power to legislate over citizenship. I have been asked to reply on the
Prime Minister’s behalf. I apologise for the delay in doing so.

35 ‘Australian citizenship’ is defined in the Australian Citizenship Act 2007. Ordinarily, the
Government does not disclose its legal advice, including on constitutional issues, I refer
you, however, to the following passage from paragraph 4,179 of the Final Report of the
Constitutional Commission, 1988:

40 While the Federal Parliament has not been granted an express power to make laws
with respect to nationality and citizenship, it has been assumed that the Parliament
does have such a power. The power is either implied in section 51(xix) [of the
Constitution] or is one of the implied national powers. Its exercise by the Federal
Parliament, by enactment of the Australian Citizenship Act 1948… has certainly not
45 been called into question in any case before the High Court of Australia.
Yours sincerely

Brendan MacDowell
A/g Assistant Secretary
50 Legal Policy Branch
7 January 2010
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QUOTE 7-1-2010 CORRESPONDENCE
.
Hansard 8-2-1898 Constitution Convention Debates
QUOTE
5 Mr. SYMON (South Australia).-I think the honorable member (Mr. Wise) has expanded
the spirit of federation far beyond anything any of us has hitherto contemplated. He has
enlarged, with great emphasis, on the necessity of establishing and securing one
citizenship. Now, the whole purpose of this Constitution is to secure a dual citizenship.
That is the very essence of a federal system. We have debated that matter again and again.
10 We are not here for unification, but for federation, and the dual citizenship must be
recognised as lying at the very basis of this Constitution.
END QUOTE
.
In Macleod Lord Halsbury L.C. quoted (at p 458) the remarks of Parke B. in Jefferys v. Boosey
15 (at p 926 of HLC (p 725 of ER)):
QUOTE
(T)he Legislature has no power over any persons except its own subjects, that is, persons
natural-born subjects, or resident, or whilst they are within the limits of the Kingdom.

20 END QUOTE
.
Hansard 2-3-1898 Constitution Convention Debates
QUOTES
“What is meant is a dual citizenship in Mr. Trenwith and myself. That is to say, I am a
25 citizen of the state and I am also a citizen of the Commonwealth; that is the dual
citizenship.”, “we are all alike subjects of the British Crown.”
END QUOTES
.
The USA kind of citizenship is different then that of the Commonwealth of Australia and as such
30 do not confuse those. Like it or not, and regardless if the British Parliament and the
Commonwealth of Australia agree with it or not we are still British nationals! As such the
purported Australia Act 1986 (Cth & UK) did have no change into this because the
Commonwealth was already pretending there was an “Australian citizenship” as a nationality and
the High Court of Australia in the Pochi case of 1982 already then upheld the deportation (albeit
35 I view wrongly – but that is another issue) referring to Australian Citizenship being a nationality.
This was clearly 4-years before the introduction of the purported Australia Act 1986 (Cth & UK)
and as such people seeking to argue that because of the Australia act they now have a nationality
obviously do not comprehend they have been conned.
.
40 Hansard 2-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-The honorable and learned member is now dealing with another matter.
Would not the provision which is now before us confer upon the Federal Parliament the
power to take away a portion of this dual citizenship, with which the honorable and learned
45 member (Dr. Quick) has so eloquently dealt? If that is the case, what this Convention is
asked to do is to hand over to the Federal Parliament the power, whether exercised or not,
of taking away from us that citizenship in the Commonwealth which we acquire by joining
the Union. I am not going to put that in the power of any one, and if it is put in the power of
the Federal Parliament, then I should feel that it was a very serious blot on the Constitution,
50 and a very strong reason why it should not be accepted. It is not a lawyers' question; it is a
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question of whether any one of British blood who is entitled to become a citizen of the
Commonwealth is to run the risk-it may be a small risk-of having that taken away or
diminished by the Federal Parliament! When we declare-"Trust the Parliament," I am
willing to do it in everything which concerns the working out of this Constitution, but I am
5 not prepared to trust the Federal Parliament or anybody to take away that which is a leading
inducement for joining the Union.
END QUOTE
.
Now, take for example the judges who were presiding over the Sue v Hill cases. They all were to
10 my knowledge born before 1986 and also lawyers having pledged their alliance to the British
Crown. I am not aware that any of those judges in the Sue v Hill case renounced their alliance to
the British Crown, and in fact were sitting as judges under the British Crown. Then to me it was
TREASON for them to hand down the decision as they did against Heather Hill. The issue of
judicial powers also is that none of the judges exercise judicial powers within the provisions of
15 the constitution to declare the British Crown to be alien as they were bound to adjudicate within
the provisions of the Constitution and nothing in it gives any judicial officer powers to amend or
otherwise interfere with the application of the constitution. The argument that over passing of
time the Commonwealth of Australia became an independent country is sheer and utter nonsense.
The Commonwealth of Australia
20 .
Hansard 3-3-1898 Constitution Convention Debates
QUOTE
Sir JOHN FORREST.-What is a citizen? A British subject?
Mr. WISE.-I presume so.
25 Sir JOHN FORREST.-They could not take away the rights of British subjects.
Mr. WISE.-I do not think so. I beg to move- That the words "each state" be omitted, with
the view of inserting the words "the Commonwealth."
I apprehend the Commonwealth must have complete power to grant or refuse citizenship to
any citizen within its borders. I think my answer to Sir John Forrest was given a little too
30 hastily when I said that every citizen of the British Empire must be a citizen of the
Commonwealth. The Commonwealth will have power to determine who is a citizen. I
do not think Dr. Quick's amendment is necessary. If we do not put in a definition of
citizenship every state will have inherent power to decide who is a citizen. That was the
decision of the Privy Council in Ah Toy's case.
35 Sir JOHN FORREST.-He was an alien.
Mr. WISE.-The Privy Council decided that the Executive of any colony had an
inherent right to determine who should have the rights of citizenship within its
borders.
Mr. KINGSTON.-That it had the right of keeping him out.
40 .
Mr. BARTON.-No, but the definition of "citizen" as a natural-born or naturalized subject
of the Queen is co-extensive with the ordinary definition of a subject or citizen in
America. The moment be is under any disability imposed by the Parliament be loses
his rights.
45 Dr. QUICK.-That refers to special races.
END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE

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Mr. SYMON.-There is no man in Australia who is more profoundly versed in
constitutional law than Mr. Isaacs, and he knows that every point and every question has
been the subject of more or less debate and discussion, and will be until the end of time.
The words "subject," "person," and "citizen" can be made subjects of controversy at
5 all times if occasion requires it. At the same time, it does not affect the principle that
there should be a definition of "citizen," either in the form suggested by Dr. Quick or
by Mr. Barton. I will be quite content. The principle is what I am contending for: The
principle that our labours will be incomplete unless we make the rights of citizens or
subjects in one state to extend to the citizens of another state who may go from one state
10 to another. There ought to be no possibility of any state imposing a disqualification on a
person in the holding of property, or in the enjoyment of any civil right, simply
because be happens to belong to another state. That would not give us the uniformity of
citizenship we all desire, and therefore I am willing that the word "citizenship" should be
defined as Dr. Quick suggests, with perhaps some modification. I also support the
15 suggestion from the Chair that the two propositions might be considered together. The
clause would do something to meet the difficulty, not perhaps finally or conclusively, as
Mr. Isaacs, said, but at any rate to a large extent and almost completely.
[start page 1788]
END QUOTE
20 .
We find that while an Attorney-General is supposed to advise a Governor-General as to the
constitutional validity of proposed legislation submitted for royal assent the reality is that the
Attorney-General generally hasn’t got a clue as he doesn’t even know his own nationality!
Likewise despite the High Court of Australia 14-11-2006 WorkChoices decision reality is fast
25 different.
.
Hansard 20-4-1897 Constitution Convention Debates
QUOTE
Dr. COCKBURN: I have raised this point at every opportunity. I do not wish to take up
30 the time of the Convention, but I certainly shall move-an amendment, because the clause is
not in accordance with the general provisions of Federation. The States composing the
Federation should have full power to deal with local affairs. Essentially, all external
relations are taken out of their jurisdiction. I do think they ought to have the power
themselves to say what the Constitution under which they live shall be.
35 END QUOTE
.
Hansard 3-3-1898 Constitution Convention Debates
QUOTE
Mr. SYMON.-Of course, the absolute control by a state of everything within its own
40 borders is retained by this Constitution, except in respect to such matters as are
expressly handed over to the Commonwealth.
END QUOTE
.
Hansard 17-3-1898 Constitution Convention Debates
45 QUOTE Mr. BARTON.-
Providing, as this Constitution does, for a free people to elect a free Parliament-giving
that people through their Parliament the power of the purse-laying at their mercy
from day to day the existence of any Ministry which dares by corruption, or drifts
through ignorance into, the commission of any act which is unfavorable to the people
50 having this security, it must in its very essence be a free Constitution. Whatever any
one may say to the contrary that is secured in the very way in which the freedom of
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the British Constitution is secured. It is secured by vesting in the people, through their
representatives, the power of the purse, and I venture [start page 2477] to say there is
no other way of securing absolute freedom to a people than that, unless you make a
different kind of Executive than that which we contemplate, and then overload your
5 Constitution with legislative provisions to protect the citizen from interference. Under
this Constitution he is saved from every kind of interference. Under this Constitution
he has his voice not only in the, daily government of the country, but in the daily
determination of the question of whom is the Government to consist. There is the
guarantee of freedom in this Constitution. There is the guarantee which none of us
10 have sought to remove, but every one has sought to strengthen. How we or our work
can be accused of not providing for the popular liberty is something which I hope the
critics will now venture to explain, and I think I have made their work difficult for
them. Having provided in that way for a free Constitution, we have provided for an
Executive which is charged with the duty of maintaining the provisions of that
15 Constitution; and, therefore, it can only act as the agents of the people. We have
provided for a Judiciary, which will determine questions arising under this
Constitution, and with all other questions which should be dealt with by a Federal
Judiciary and it will also be a High Court of Appeal for all courts in the states that
choose to resort to it. In doing these things, have we not provided, first, that our
20 Constitution shall be free: next, that its government shall be by the will of the people,
which is the just result of their freedom: thirdly, that the Constitution shall not, nor shall
any of its provisions, be twisted or perverted, inasmuch as a court appointed by their
own Executive, but acting independently, is to decide what is a perversion of its
provisions? We can have every faith in the constitution of that tribunal. It is appointed as
25 the arbiter of the Constitution. It is appointed not to be above the Constitution, for no
citizen is above it, but under it; but it is appointed for the purpose of saying that those
who are the instruments of the Constitution-the Government and the Parliament of
the day-shall not become the masters of those whom, as to the Constitution, they are
bound to serve. What I mean is this: That if you, after making a Constitution of this
30 kind, enable any Government or any Parliament to twist or infringe its provisions,
then by slow degrees you may have that Constitution-if not altered in terms-so
whittled away in operation that the guarantees of freedom which it gives your people
will not be maintained; and so, in the highest sense, the court you are creating here,
which is to be the final interpreter of that Constitution, will be such a tribunal as will
35 preserve the popular liberty in all these regards, and will prevent, under any pretext
of constitutional action, the Commonwealth from dominating the states, or the states
from usurping the sphere of the Commonwealth. Having provided for all these things,
I think this Convention has done well.
END QUOTE
40 .
Hansard 1-3-1898 Constitution Convention Debates
QUOTE Sir JOHN DOWNER.-
I think we might, on the attempt to found this great Commonwealth, just advance one
step, not beyond the substance of the legislation, but beyond the form of the
45 legislation, of the different colonies, and say that there shall be embedded in the
Constitution the righteous principle that the Ministers of the Crown and their officials
shall be liable for any arbitrary act or wrong they may do, in the same way as any
private person would be.
END QUOTE
50 .
Hansard 8-2-1898 Constitution Convention Debates
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QUOTE Mr. BARTON.-
Under a Constitution like this, the withholding of a power from the
Commonwealth is a prohibition against the exercise of such a power.
END QUOTE
5 .
HANSARD 1-3-1898 Constitution Convention Debates
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
10 necessary or incidental to a power given.
END QUOTE
.
HANSARD 8-2-1898 Constitution Convention Debates
QUOTE
15 Mr. HIGGINS.-I did not say that it took place under this clause, and the honorable
member is quite right in saying that it took place under the next clause; but I am trying to
point out that laws would be valid if they had one motive, while they would be invalid
if they had another motive.
END QUOTE
20 .
HANSARD 9-9-1897 Constitutional Convention
QUOTE Mr. HIGGINS (Victoria)
There will, of course, be no funds in the commonwealth at that stage; but I apprehend
that the governor-general will act in the hope of being recouped any expenses
25 afterwards to which he may be put.
END QUOTE
.
Hansard 22-4-1897 Constitution Convention Debates
QUOTE Mr. GLYNN:
30 It is felt in the forms in our courts of justice, in the language of our Statutes, in the
oath that binds the sovereign to the observance of oar liberties, in the recognition of
the Sabbath, in the rubrics of our guilds and social orders, in the anthem through
which on every public occasion we invocate a blessing on our executive head, in our
domestic observances, in the offices of courtesy at our meetings and partings, and in
35 the time-honored motto of the nation.
END QUOTE
.
Hansard 2-4-1891 Constitution Convention Debates
QUOTE Mr. J. FORREST:
40 We propose to form a commonwealth of Australia, and are we to prohibit people of
our own race, born in other portions of the British dominions, from becoming
senators until they have been resident in the commonwealth for a certain period? No
such prohibition is placed upon Australians residing in the old country. Any
Australian, resident in England, can at once, if the electors desire, become a member
45 of the House of Commons, and I see no reason why a distinguished Englishman
coming to these colonies should not at once be eligible for the position of senator if the
legislature of one of the colonies desired his appointment.
END QUOTE
.
50 Hansard 1-4-1891 Constitution Convention Debates
QUOTE
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Sir SAMUEL GRIFFITH: If the hon. gentleman will look at the bill he will see that
the only laws which can apply are laws for the peace, order, and good government of
the commonwealth.
END QUOTE
5 .
Legislation such as the purported “Governor-General Act 1974” as to the conduct of the
Governor-General and those engaged by the governor-General within prerogative powers of the
Crown cannot be deemed “for the peace, order, and good government of the
commonwealth”, as it is in my view an attempt to interfere with the Governor-General’s right to
10 manage his/her office as may be desirable.
.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
Mr. WISE.-If the Federal Parliament chose to legislate upon, say, the education
15 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
20 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
25 few minutes in discussing it.
END QUOTE
.
Hansard 1-3-1898 Constitution Convention Debates
QUOTE
30 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
35 man in the Federal Parliament will be a sentry, and the whole constituency
behind the Federal Parliament will be a sentry.
END QUOTE
.
Thu, 31 Oct 2002
40 QUOTE
Dear Mr Schorel-Hlavka
Thank you for your letter.
There is no bias, any more than there would be for a woman judge sitting in a case
involving women or a male judge in a rape case.
45 Your views on the Constitution appear to have overlooked s 51(xxxvii) of the
Constitution. If that power were not enough, and none of the other heads of power
sufficed, it is true that an amendment of the Constitution might be required.
Alternatively, there are cooperative schemes for parallel legislation. Ours is a
cooperative federation, as the Constitution itself envisaged.
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Sincerely, Michael Kirby
END QUOTE
.
Week it seems to me that the Governor-Generals Act 1974 so to say is up the creek and that
5 without a referendum the commonwealth of Australia (so the Federal parliament) lacks certain
legislative powers and cannot interfere with what is essential a prerogative power of Her Majesty
the Queen to employ a person as she desires.

There are obviously numerous other issues, not related specifically to the office of the
10 Governor-General albeit the governor-General seems to provide purported royal assent where
none should be given to unconstitutional legislation such as in regard of the following:
The Constitution Convention Debates makes clear that WATER that falls on a property belongs
to the owner of that property. However, the usage of the WATER must be in such manner that it
does not interfere with the rights of others. More over, that by federation. it means that riparian
15 rights are applicable. I understand that the Commonwealth with agreement of the States has
discontinued the Inter-State Commission, but no such powers existed for the Commonwealth and
the State to do so and hence the Commonwealth of Australia itself is clearly at fault in that regard
also, as are the States. The Governor-General as CEO should address this issues also!
QUOTE
20 Commission obligatory.
END QUOTE
And
QUOTE
Mr. HIGGINS.-But the Inter-State Commission must be absolutely independent of
25 Parliament.
END QUOTE
.
While the Governor-General purportedly gave royal assent to legislation containing the terms;
“as the deceased person’s husband or wife or partner on a permanent and bona fide
30 domestic basis” “leaving more than one spouse” “to a spouse of the deceased person under this
Act among the spouses” reality is that the Federal Parliament cannot legislate as to the terms of
conditions how the Monarch appoints (That is in a valid manner according to the legal principles
embedded in the Constitution and not otherwise) as it is a prerogative power not subject to
legislation other then the amount of salary for the Governor-General while in office and not
35 beyond. I view it appalling that the term “leaving more than one spouse” even was considered
in the first place as making out that a governor-General now needs to have more then one
husband as if the Governor-General (at least implied as I view it) is some sex maniac. Surely we
can do without such inferences?
I have for long pursue that what is need is that under the Governor-General (not under the
40 Government as to avoid political interference) there must be funding for the OFFICE-OF-THE-
GUARDIAN (Don’t forget the hyphens!) so that finally the governor-General is able to obtain
non-political clouded advice what really is constitutionally applicable and prohibited, and also
how really the office of the governor-General exercises its powers, duties, etc.
.

45 MAY JUSTICE ALWAYS PREVAIL®


.
Awaiting your response, G. H. Schorel-Hlavka
END QUOTE 21-1-2010 CORRESPONDENCE TO THE GOVERNOR-GENERAL
.

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What must be clear is that this ongoing reckless spending and so unconstitutional and the pork
barrelling by governments of all persuasions had plunged the Commonwealth of Australia in
severe financial debts and this all could have been avoided had the Commonwealth and so also
the States/Territories used the OFFICE-OF-THE-GUARDIAN as to consult about the
5 constitutional validity of any proposed legislation and/or expenditure.
.
Those who criticise Iran for being behind in western standards ought to keep in mind that it does
have any proposed legislation checked first as to its constitutional validity, and we could take a
lesson from this.
10 .
Corporate lawyers may not be interested to fight the kind of constitutional battles I have
been pursuing, (And so unpaid!) but they also should understand that the billions of dollars that
now would be sucked out of the mining companies would by far exceed the cost of dealing with
constitutional validities.
15 It should also be understood that lawyers who are trained during legal studies , regardless of
claiming to be open minded, will find that when they read the same Hansard records they do not
pick up what I do because their minds simply are trained in a manner to accept certain situations
regardless that it might be completely incorrect. I find this time and again in the courts where I
defeat lawyers because they simply cannot comprehend the true meaning of what the constitution
20 stands for and when they finally do it is because they lost their cases.
.
In my view any lawyer who takes the position that “Australian citizenship” is a nationality
should hand in his law decrees and get some real education in legal matters as if a lawyer
doesn‘t even know that “Australian citizenship” isn’t at all a nationality and is not within
25 constitutional powers of the Commonwealth of Australia then clearly the lawyer fails to
understand and comprehend the basic issues about his own status.
.
QUOTE 7-1-2010 CORRESPONDENCE
Australian Government
30 Department of the Prime Minister and Cabinet
ONE NATIONAL CIRCUIT
BARTON

Reference: c09/54418
35
Mr Gerrit Schorel-Hlavka
107 Graham Road
VIEWBANK VICTORIA 3084

40 Dear Mr Schorel-Hlavka

Thank you for your email of 24 October 2009 to the Prime Minister regarding the
Commonwealth’s power to legislate over citizenship. I have been asked to reply on the
Prime Minister’s behalf. I apologise for the delay in doing so.
45
‘Australian citizenship’ is defined in the Australian Citizenship Act 2007. Ordinarily, the
Government does not disclose its legal advice, including on constitutional issues, I refer
you, however, to the following passage from paragraph 4,179 of the Final Report of the
Constitutional Commission, 1988:
50

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While the Federal Parliament has not been granted an express power to make laws
with respect to nationality and citizenship, it has been assumed that the Parliament
does have such a power. The power is either implied in section 51(xix) [of the
Constitution] or is one of the implied national powers. Its exercise by the Federal
5 Parliament, by enactment of the Australian Citizenship Act 1948… has certainly not
been called into question in any case before the High Court of Australia.
Yours sincerely

Brendan MacDowell
10 A/g Assistant Secretary
Legal Policy Branch
7 January 2010
QUOTE 7-1-2010 CORRESPONDENCE
.
15 No such thing exist as to “ASSUME” legal powers and the above makes this very clear and
a Constitutional Commission cannot amend the application of the constitution merely by
having “ASSUMED” there is legislative powers. As such, if “Australian citizenship” is not a
nationality then ask yourself what is your nationality then? And forget about the bogus
REPUBLIC referendum because s.128 cannot provide for this but this and numerous other
20 issues are canvassed extensively in my published books and as such no need to repeat the
same. Just that it might be wiser to accept from a person who has no extensive titles as
those referred to on the BHP website may in the end be smarter then the lot who have all
their titles because at least I am a person living in reality and then to think I moved from
The Netherlands as an alien to learn to know the constitutional meanings and applications
25 better then most if not all other Australians. Do understand that one can refer to one selves
being an Australia not as a nationality but living in Australia!
.
For the above I would urge you to make sure you discover what your real nationality is and also
what really is constitutionally applicable, even if you have to learn it from a person who holds no
30 special titles like myself being a CONSTITUTIONALIST which I view is a more important
title then any other title. And look at it this way, learning what is constitutionally permissible you
might just save your company and others billions of dollars in the process, something all
corporate lawyers may themselves not understand can be done!
..

35 MAY JUSTICE ALWAYS PREVAIL®


.

(Our name is our motto! )


.

Awaiting your response, G. H. Schorel-Hlavka

40
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