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Dr John Myers 39 Balaclava Road Balaclava, Vic

10-12-2010

AND TO WHOM IT MAY CONCERN VCAT & DUE PROCESS OF LAW - etc John, 10 I may pass on a comment my wife Olga made that Jews are to assist each other and therefore as a Jew you acted in the circumstances appropriately assisting this woman to get out of hospital. . The question then is did the Medical Board and/or VCAT consider this issue as such? If you have a religious commitment to look after another person who is Jewish then the medical board and/or VCAT if not having considered this made an error in law by failing to consider something like that which was very relevant to the issue at hand. . The next point is that the constitution specifically separated the executives, the judiciary and the Parliament. As a tribunal is not part of the judiciary but is in fact an organ of the government then this cannot be deemed to be an independent court. As VCAT has that it is not bound to the rules that ordinary applies to a court it therefore undermines an accused of his/her rights ordinary provided for if the trial was in a court. In fact VCAT can somehow operate as a STAR CHAMBER COURT demanding answers whereas this is in conflict of the Imperial Interpretation Application Act 1980 (Vic) which holds any STAR CHAMBER COURT kind of proceedings to be unlawful. . VCAT by its nature not operating as a court and demanding answers and disregarding proper legal procedures clearly is not a court and therefore any appeal now limited to appeals on errors of law is a gross denial of NATURAL JUSTICE because it denies a review DE NOVO before a COURT OF LAW. In my view a review DE NOVO is an essential element to allow a tribunal to operate. Without a review De Novo the right of DUE PROCESS OF LAW is not provided for, this as a judicial officer of a tribunal can totally misconstrue matters but then still if not making an error in law can be deemed to apply his discretionary decision. As much as a Magistrates court decision is reviewable DE NOVO before the County Court of Victoria then I view likewise a VCAT (Victorian Civil and Administrative Tribunal) decision must be reviewable DE NOVO before the Supreme Court of Victoria. . Because the constitution has embedded separation of the judiciary, then it cannot be held that a limited appeal upon errors of law only allow DUE PROCESS OF LAW because the basics of the trial before a tribunal denied the impartial (separation) of the trial as it is before or under the directions of a government body. . While the s.101 Inter-State Commission was permitted to make decisions and then an appeal lies to the High Court of Australia on errors of law only, it should be kept in mind that this related to issues of State matters as to trade and commerce and not to individual. Always was it held that other matters against a individual would be before a court of law. Indeed, VCAT as a tribunal is not a court invested with federal jurisdiction.
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. Held that a State Court exercising federal jurisdiction when it erroneously applies Commonwealth Act to subject matter before the Court. Commonwealth v Cole, (1923) 32 C.L.R. 602 and Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85 . If ever you are again faced to be before VCAT the moment you claim, rightly or wrongly, federal issues, such as your federal constitutional rights, then automatically it is a federal trial and VCAT is not a tribunal invested with federal jurisdiction and therefore cannot proceed hearing the matters then but the matter then must be transferred to a court of law that can invoke federal jurisdiction. The High Court of Australia held that where a party pleads the non-application of a State Act because of Commonwealth legislation then the State Court is exercising Federal jurisdiction. (However only if the State Court can invoke jurisdiction, which VCAT cannot and neither is a court!) Troy v Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66. . Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act 1903 the Attorney-General for the Commonwealth or a State may apply for the removal into the High Court of a cause or part of a cause whether or not he is a party to the proceedings in which the cause arises, and if the cause really and substantially arises under the Constitution or involves its interpretation, the court MUST grant the removal as of right notwithstanding that the matter is apparently concluded by authority. Any distinct and divisible question may be “part” of such a cause within the meaning of this section. In re an Application by the Public Service Association of N.S.W. , (1947) 75 C.L.R. 430 . This refers to “the court” and not a “tribunal” and as such it must be clear that a tribunal was never intended to deal with such matters but clearly it occurs often and then the issue is can one hold that a tribunal can circumvent the constitutional and other legal rights of a citizen or that for this also the tribunal usage is not permissible? In my view, tribunals are not a form of court of law and therefore can only validly be operating if an “appeal DE NOVO” is permitted and is not limited to an appeal on errors of law only. Therefore, I view that the case was insufficiently argued both before the Supreme Court of Victoria and your “leave to appeal” to the High Court of Australia! Consider also some of the following; . Judiciary Act 1903 (Cth) 39 Federal jurisdiction of State Courts in other matters QUOTE (1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.

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Special leave to appeal from decisions of State Courts though State law prohibits appeal (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge. Exercise of federal jurisdiction by State Courts of summary jurisdiction (d) The federal jurisdiction of a Court of summary jurisdiction of a State shall not be judicially exercised except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State who is specially authorized by the Governor-General to exercise such jurisdiction, or an arbitrator on whom the jurisdiction, or part of the jurisdiction, of that Court is conferred by a prescribed law of the State, within the limits of the jurisdiction so conferred. END QUOTE . 39A Federal jurisdiction invested in State Courts by other provisions QUOTE (1) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether the investing occurred or occurs before or after the commencement of this section, including federal jurisdiction invested by a provision of this Act other than the last preceding section: (a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2) of the last preceding section; and (b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d) of that subsection (whether or not it is expressed to be invested subject to both or either of those provisions), so far as they are capable of application and are not inconsistent with a provision made by or under the Act by or under which the jurisdiction is invested; in addition to any other conditions or restrictions subject to which the jurisdiction is expressed to be invested. (2) Nothing in this section or the last preceding section, or in any Act passed before the commencement of this section, shall be taken to prejudice the application of any of sections 72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences. END QUOTE . From the above it already ought to be clear that a State Court, subject to certain provisions, can exercise Federal jurisdiction. . QUOTE Edwin Hale v. William Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906) The individual may stand upon his Constitutional Rights as a citizen. He is entitled to carry on his private business in his own way. ..His Rights are such as existed by the ‘law of the land’ [Common Law] long antecedent to the organization of the State, and can only be taken away from him by due process of law, and in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their Rights. END QUOTE .
http://www.austlii.edu.au/cgi bin/sinodisp/au/cases/cth/HCA/2003/65.html? stem=0&synonyms=0&query="State%20land%20tax"#fn9 10-12-2010 Page 3 PLEASE NOTE: Until our website Http://www.office-of-the-guardian.com has been set up to operate the website Http://www.schorel-hlavka.com will be the alternative website for contact details. help@office-of-the-guardian.com

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Paliflex Pty Ltd v Chief Commissioner of State Revenue (NSW) [2003] HCA 65; 219 CLR 325; 202 ALR 376; 78 ALJR 87 (12 November 2003)
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An enactment under the Constitution may not of course be used to construe the Constitution,
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. Hansard 25-3-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. O'CONNOR: You cannot ask a judge to serve two masters. END QUOTE Where the President of VCAT and Deputy Presidents are actually sitting judges of the County Court of Victoria then their oath of impartiality is compromised where as a Member of VCAT they are to serve the government’s agenda. . Hansard 1-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention), QUOTE Mr. OCONNER (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 beyond the possibility of suspicion; END QUOTE . Clearly where VCAT judicial officers are both judges of a court as well as serving at VCAT then their independence being compromise then cannot exercise judicial powers, and neither should any tribunal because a government body should never be permitted as such to exercise or quasi exercise judicial powers in the manner VCAT purports to do because VCAT was deliberately put together to circumvent judicial processes. . Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95 Criminal Law and Procedure - Statutes - Human Rights - Telecommunications - Law Reform [1995] NSWSC 154 (14 November 1995) QUOTE "It is well established that the Court should not impute to the legislature an intention to interfere with fundamental rights, freedoms or immunities; such an intention must be clearly manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437. ... The close link between the fundamental right to be secure against trespass and the right to privacy is illustrated by the observations by Lord Scarman in Morris v Beardmore (1981) AC 446 ... Parliament itself has ... recognised, in the context of telecommunications, the fundamental importance of protecting individual privacy, although also recognising that the value of privacy can be over-ridden where it conflicts with other significant community values, provided that detailed safeguards are observed. The recognition and protection of privacy in the Intercept Act, in my view, justifies a restrictive approach to the construction of the statutory exceptions to the prohibitions on interception. ... where there is a genuine doubt as to whether the statutory language authorises the use of intercept information for a particular purpose, that doubt should be resolved in favour of a narrow, rather than a broad construction of the statutory authorisation." END QUOTE . HANSARD 1-3-1898 Constitution Convention Debates
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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 . Hansard 8-3-1898 Constitution Convention Debates 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] Mr. ISAACS.-No. If it is ultra vires of the Constitution it would, of course, be invalid.

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END QUOTE . HANSARD 8-2-1898 Constitution Convention Debates QUOTE 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 . HANSARD 17-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.We must remember that in any legislation of the Commonwealth we are dealing with the Constitution. Our own Parliaments do as they think fit almost within any limits. In this case the Constitution will be above Parliament, and Parliament will have to conform to it. END QUOTE . 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 the Constitution we will have to wipe it out." END QUOTE . Therefore, regardless if the vcaata1998 was deemed for the good of the community it nevertheless infringed upon the rights of citizen to have a trial before a court of law and as such the vcaata1998 act must be deemed unconstitutional because the decision is not and cannot be deemed a trial before a court of law where any appeal is limited to errors of law and as such judicial competence of a court of law to deal with the matters as an appeal De Novo is denied. . The following will also make clear that the Framers of the Constitution intended to have CIVIL RIGHTS and LIBERTIES principles embedded in the Constitution; HANSARD 17-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. CLARK.for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him.
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END QUOTE . HANSARD18-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.The right of a citizen of this great country, protected by the implied guarantees of its Constitution, END QUOTE . HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. BARTON.-Our civil rights are not in the hands of any Government, but the rights of the Crown in prosecuting criminals are. END QUOTE . Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. ISAACS.That very question was dealt with in what are known as the Slaughter House cases in 1872,16 Wallace, 36, and in certain other cases. This is what the court said-

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The right of a citizen of this great country, protected by the implied guarantees of its Constitution, to come to the seat of government to assert any claim he may have upon the Government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions, free access to its sea ports through which all operations of foreign commerce are conducted, also to the sub-treasuries, land offices, and courts of justice of the several states. END QUOTE . Hansard 8-2-1898 Constitution Convention Debates QUOTE Mr. OCONNOR.There is only one portion of the Tasmanian amendment which I think should be preserved, and I prefer it in the form in which it stands as submitted by the Legislative Assembly of Tasmania. I think that the only portion of it which it is necessary to preserve is this-altering the wording slightly so as to make it read as I think it should readA state shall not deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws. So that any citizen of any portion of the Commonwealth would have the guarantee of liberty and safety in regard to the processes of law, and also would have a guarantee of the equal administration of the law as it exists. I think Mr. Isaacs will bear me out, that in the United States it has been decided that the title to equal treatment under the law does not mean that you cannot make a law which differentiates one class of the community from another; but, as has been decided, it means that in the administration of the laws you have made, all the citizens shall be treated equally. And that should be so. Whatever privilege we give to our citizens, the administration of the law should be equal to all, whatever their colour. The case I refer to is one of the Chinese cases-I forget the name of it. Mr. ISAACS.-The case of Yick Wo v. Hopkins. END QUOTE Hansard 8-2-1898 Constitution Convention Debates
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QUOTE Mr. ISAACS.-Yes, because we decided in transferring the provision in clause 53 to clause 52 to leave the states full power to legislate until overborne by federal legislation. If we retain this provision that no state is to be permitted under any circumstances to pass such a law, then what we have decided to be concurrent legislation becomes exclusive legislation on the part of the Federal Parliament. On that ground, and for the reasons I have stated, I say that we ought not to insert this provision as to the equal protection of the laws. That is a phrase that at once commands approbation, but when it comes to be practically applied it raises up almost insuperable difficulties. With regard to the other part of the clause, about due process of the law, there is an equal difficulty. I understand that Mr. O'Connor proposes to introduce that portion. What necessity is there for it? Under our state Constitutions no attempt has ever been made to subject persons to penalties without due process of law. [start page 688] 15 That provision was likewise introduced into the American Constitutions to protect the negroes from persecution, and dozens of cases have been brought in the United States courts to ascertain what was meant by due process of law. At one time it was contended that no crime could be made punishable in a summary way, but that in every case there would have to be an indictment and a trial by jury. That was overruled, and it was held that you might have process by information. If we insert the words "due process of law," they can only mean the process provided by the state law. If they mean anything else they seriously impugn and weaken the present provisions of our Constitution. I say that there is no necessity for these words at all. If anybody could point to anything that any colony had ever done in the way of attempting to persecute a citizen without due process of law there would be some reason for this proposal. If we agree to it we shall simply be raising up obstacles unnecessarily to the scheme of federation. I hope, therefore, that Mr. O'Connor will not press his amendment. The amendment was agreed to. Mr. OCONNOR (New South Wales). I beg now to move30 That the following words be inserted after the word "not"-"deprive any person of life, liberty, or property without due process of law." Dr. COCKBURN (South Australia).-Why should these words be inserted? They would be a reflection on our civilization. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilization. People would say-"Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice." Mr. OCONNOR (New South Wales).-I have mentioned before the reasons, and they appear to me to be very strong, why these words should be retained. The honorable member will not deny that there should be a guarantee in the Constitution that no person should be deprived of life, liberty, or property without due process of law. The simple object of this proposal is to insure that no state shall violate what is one of the first principles of citizenship. Mr. KINGSTON.-Is there not that guarantee now? 45 Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may
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lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth. 5 Sir JOHN FORREST.-Would not the Royal assent be withheld? Mr. OCONNOR.-I do not know that it would. The Royal assent is practically never refused to any Bill that deals with our own affairs, and it is highly improbable that it would be refused under any circumstances. 10 Mr. ISAACS.-Suppose a state wanted land for railway purposes, and took it compulsorily, there being a provision in one of the statutes that the amount to be paid should be determined by arbitration, would not that be taking the land without due process of law? Mr. OCONNOR.-No, it would not; and, as an honorable member reminds me, there is a decision on the point. All that is intended is that there shall be some process of law by which the parties accused must be heard. Mr. HIGGINS.-Both sides heard. Mr. OCONNOR.-Yes; and the process of law within that principle may be [start page 689] anything the state thinks fit. This provision simply assures that there shall be some form by which a person accused will have an opportunity of stating his case before being deprived of his liberty. Is not that a first principle in criminal law now? I cannot understand any one objecting to this proposal. Dr. COCKBURN-Very necessary in a savage race. Mr. OCONNOR.-With reference to the meaning of the term due process of law, there is in Baker's Annotated Notes on the Constitution of the United States, page 215, this statementDue process of law does not imply that all trials in the state courts affecting the property of persons must be by jury. The requirement is met if the trial be in accordance with the settled course of judicial proceedings, and this is regulated by the law of the state. If the state law provides that there shall be a due hearing given to the rights of the parties30 Mr. BARTON.-And a judicial determination. Mr. OCONNOR.-Yes, and a judicial determination-that is all that is necessary. Mr. ISAACS.-What is the good of it? It is an admission that it is necessary. Mr. OCONNOR.-Surely we are not to be prevented from enacting a guarantee of freedom in our Constitution simply because imputations may be cast upon us that it is necessary. We do not say that it is necessary. All we say is that no state shall be allowed to pass these laws. Mr. ISAACS.-Who asks for the guarantee? Dr. COCKBURN.-The only country in which the guarantee exists is that in which its provisions are most frequently violated.

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Mr. OCONNOR.-I think that the reason of the proposal is obvious. So long as each state has to do only with its own citizens it may make what laws it thinks fit, but we are creating now a new and a larger citizenship. We are giving new rights of citizenship to the whole of the citizens of the Commonwealth, and we should take care that no man is deprived of life, liberty, or property, except by due process of law. Mr. GORDON.-Might you not as well say that the states should not legalize murder? Mr. OCONNOR-That is one of those suppositions that are against the first instincts of humanity. Mr. GORDON.-So is this.

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Mr. OCONNOR.-No, it is not. We need not go far back in history to find cases in which the community, seized with a sort of madness with regard to particular offences, have set aside all principles of justice. If a state did behave itself in that way, why should not the citizens of the Commonwealth who did not belong to that state be protected? Dr. Cockburn suggested in so contemptuous a way that there could be no reason for this amendment, that I got up to state again what had been stated before. Dr. COCKBURN.-Not contemptuous. Mr. OCONNOR.-I know the honorable member meant nothing personal, but I thought it necessary to state the reasons of what, had it not been for the honorable member's statement, would have seemed to be a perfectly obvious proposition. Mr. Clark, of Tasmania, thought the amendment of importance, and pointed out that it had been put in the United States Constitution. It should also be put in this Constitution, not necessarily as an imputation on any state or any body of states, but as a guarantee for all time for the citizens of the Commonwealth that they shall be treated according to what we recognise to be the principles of justice and of equality. END QUOTE
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MAY JUSTICE ALWAYS PREVAIL®
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