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Mr Michael Harmer, Harmers Workplace Lawyers 24-7-2012 Sydney Office Melbourne Office Level 28, 31 Market St Level 40, 140 William Street Sydney NSW 2000 Melbourne VIC 3000 Telephone: (02) 9267-4322 Telephone: (03) 9612 2300 Facsimile: (02) 9264-4295 Facsimile: (03) 9612 2301 Email: sydney@harmers.com.au Email: melbourne@harmers.com.au
Cc: Nicola Roxon MP Commonwealth Attorney-General Nicola.Roxon.MP@aph.gov.au

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Mr Kevin Foley principal of FOLEYS LAWYERS kevin@foleyslawyers.com.au 120724-Ashby v Commonwealth Sir/Madam, I understand that there are legal proceedings between your client JAMES ASHBY and the Commonwealth of Australia (Mr Slipper). As a CONSTITUTIONALIST having read the media report that the issue is as to political freedom, as I understand it submitted by Counsel Mr Michael Lee SC for your client, I make hereby comments which may or may not be of assistance. The Framers of the Constitution stated;
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Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention) QUOTE Mr. ISAACS.We want a people's Constitution, not a lawyers' Constitution. END QUOTE
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Hansard 19-4-1897 Constitution Convention Debates QUOTE Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand. END QUOTE

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Therefore the true meaning and application of the constitution must be what a FAIR MINDED PERSON may understand from what was stated by the Framers of the Constitution intended to mean POLITICAL LIBERTY, and not that lawyers (including judges) are seeking to make out some kind of application that is not ordinary born-out by the Framers of the Constitution.
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Hansard 8-3-1898 Constitution Convention Debates 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. END QUOTE
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p1 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

Page 2 Here the reference to state includes the Commonwealth when it is operating as a sovereign for and on behalf of the States in federal matters.
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HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS: 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. END QUOTE
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HANSARD 10-03-1891 Constitution Convention Debates QUOTE Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary sovereignty. No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body. More than all that, there is this difference: When parliamentary sovereignty is dispensed with, instead of there being a high court of parliament, you bring into existence a powerful judiciary which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter of the constitution. END QUOTE
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HANSARD 11-03-1891 Constitution Convention Debates QUOTE Mr. CLARK: What we want is a separate federal judiciary, allowing the state judiciaries to remain under their own governments. END QUOTE
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HANSARD 1-3-1898 Constitution Convention Debates QUOTE Mr. SYMON.Then, I think myself, some confusion may arise in consequence of the reference to the state in the words "Proceedings to be taken against the Commonwealth or a state in all cases within the limits of the judicial power." Now, it does not appear to me that we ought to interfere in any way with the functions of a state to regulate the proceedings which it, as a quasi-independent political entity, may prescribe for the regulation of its own legal proceedings. END 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 clauseThat 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 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

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Clause 52 is now section 51 of the constitution. We find however that too often the Commonwealth interferes with state jurisdiction matters, for example where within s51(xxxvii) the Commonwealth legislate on behalf of the State(s) and then
p2 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

Page 3 invoke jurisdiction never referred to it and neither had the consent of the State electors by way of State referendum as is required.
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HANSARD 17-4-1897 Constitution Convention QUOTE Mr. DEAKIN: They both desire to retain for their Several States for all time the privilege of controlling industrial disputes within their own borders. END QUOTE
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HANSARD 19-4-1897 Constitution Convention QUOTE Mr. CARRUTHERS: 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. END QUOTE
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HANSARD 27-1-1898 Constitution Convention Debates QUOTE Mr. SYMON.The relations between the parties are determined by the contract in the place where it occurs. END QUOTE HANSARD 27-1-1898 Constitution Convention Debates QUOTE 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. END QUOTE 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 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 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 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. END QUOTE

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Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. OCONNOR (New South Wales).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

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Therefore, the position of any Workplace contract within a territory is governed by a Territory as a quasi-State. Here Commonwealth other than the State is bound however by s116 and therefore cannot put any religious requirements upon a contract whereas the States can do so. While the Territory is deemed a quasi-State nevertheless within s122 it is bound by s116.
Hansard 7-4-1891 Constitution Convention Debates QUOTE p3 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

Page 4 Clause 5. Upon the establishment of the commonwealth, all officers employed by the government of any state in any department of the public service the control of which is by this constitution assigned to the commonwealth, shall become subject to the control of the executive government of the commonwealth. But all existing rights of any such officers shall be preserved.

END QUOTE Hansard 21-4-1891 Constitution Convention Debates QUOTE

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Mr. BARTON: There is no obligation on the Commonwealth to continue the services of officers which the proper administration of the departmant does not require to be continued. Where the services are inchoate, and where the Commonwealth finds that its necessities require a continuance of the services of an officer the right of that officer becomes a perfect one under the Commonwealth and must be dealt with. That part of his service which was a contract with the State must be dealt with by the State, and that part which becomes a contract with the Commonwealth must be dealt with by the Commonwealth. As to the argument that this will create pension or superannuation laws I would point out that if the Commonwealth does not provide for such it will become clear that [start page 1049] these are expiring rights, and that there must come a time when they will die out, and therefore they are no burden on the Commonwealth. It is in the hands of the Commonwealth to provide for a pension list or not. Mr. FRASER: They may not take over the civil servants at all.

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Mr. BARTON: The two departments which will be taken over employing the most officers will be the Customs and post and telegraphs, and in connection with the latter most of the officers, I presume, will be taken over. Owing, however. to the abolition of the border duties many of the Customs officers must disappear, and, although there may be a distribution of the officers, it is generally admitted that their rights must be conserved. These rights, however, will gradually die out under the Commonwealth, and there can be no continuation of them, because there are only one or two colonies where these contracts, as I prefer to call them, exist, and it will be very easy to earmark officers, say, from New South Wales or Western Australia, and say that they are subject to these existing contracts. END QUOTE

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From the above it must be clear that any contract of a person with the Commonwealth is within the structure of the Commonwealth employment condition. We now have to turn to the issue of the Parliament itself. I will refrain to include numerous other relevant statements safe to quote some of the following:
Hansard 6-3-1891 Constitution Convention Debates QUOTE Mr. BARTON: As a possible working out in time. I do admit that there is a great deal of force in the suggestion that there are certain phases of constitutional development which, to a great extent, must be left to the working-to that which express provisions will evolve from themselves, rather than to attempt to define them too strictly at the outset; but I fail to see how the working of any such constitution as is likely to be framed will result in a limited ministerial responsibility of that kind. I take it that we [start page 99] shall be shut up to the choice of one of two things, the American system of dissociation of the executive, or the adhering to that which we individually have found to work as well as anything else can work in the present stage of political development, that is, the ordinary principle of constitutional government. In that respect I think that, irrespective of any question of a referendum, which I have heard suggested, we shall find ourselves safer in relying on the old lines of constitutional responsibility at the hands of one chamber, although it may not take unto itself the whole of the representative principle, than we shall be by attempting either to weld two chambers together for executive purposes-which I think would be a clumsy expedient-or by venturing upon the dissociation of the executive from the representative body, the segregation of ministers from parliament, resulting, as we know it has resulted elsewhere, in a body of ministers not possessing indeed the whole executive power, and whose working is hampered to this extent: that, being individually amenable to a president, they are only in the very slightest degree animated by a common policy so far as regards their common action. That is a state of things which I do not think would conduce to good government, and I therefore think, notwithstanding the embodiment of the federal principle in our second chamber, notwithstanding the embodiment of a proportion of the representation of the country in it, we must give up the idea that we are to dissociate our executive from our parliament. We shall be much safer in taking our p4 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

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Page 5 stand upon the solid constitutional ground of responsibility to one house alone. And there is a reason for it in this case to be found in this way: that the chamber to which it is proposed that ministers should be responsible, is that chamber which is most charged with the conservation of the general rights of which the executive is the exponent: that is to say, viewing the federal executive in its distinction from the various executives of the provinces, the chamber which has most to do with the conservation of the powers and functions of that executive, and within the lines of which it will oftenest act in its relation to the individuals of the state, will be the house of representatives; and if we work upon that line, I think we shall find it to be, perhaps, by no very great stretch of principle a decided gain in the working of our political system, and we shall find it possible to conserve the principle of ministerial responsibility, and responsibility to that house alone. END QUOTE
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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 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 Hansard 2-3-1898 Constitution Convention Debates QUOTE Mr. SYMON ( South Australia ).In the preamble honorable members will find that what we desire to do is to unite in one indissoluble Federal Commonwealth -that is the political Union-"under the Crown of the United Kingdom of Great Britain and Ireland , and under the Constitution hereby established." Honorable members will therefore see that the application of the word Commonwealth is to the political Union which is sought to be established. It is not intended there to have any relation whatever to the name of the country or nation which we are going to create under that Union . The second part of the preamble goes on to say that it is expedient to make provision for the admission of other colonies into the Commonwealth. That is, for admission into this political Union, which is not a republic, which is not to be called a dominion, kingdom, or empire, but is to be a Union by the name of "Commonwealth," and I do not propose to interfere with that in the slightest degree. END QUOTE
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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 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
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It must be clear that the Commonwealth of Australia is not at all some country but a POLITICAL UNION (Compare with the European Union) and that the Parliament is a POLITICAL ENTITY within it and Ministers and its officials are legally liable. Having established this, the question then is if Mr Ashby had a perceived political liberty or other rights/duties to reveal/disclose details, if he did do so?
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. BARTON.-this Constitution is to be worked under a system of responsible government END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE 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. END QUOTE p5 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

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Page 6 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 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 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 people. END QUOTE
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HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.- In this Constitution, although much is written much remains unwritten, END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. DEAKIN.What a charter of liberty is embraced within this Bill-of political liberty and religious liberty-the liberty and the means to achieve all to which men in these days can reasonably aspire. A charter of liberty is enshrined in this Constitution, which is also a charter of peace-of peace, order, and good government for the whole of the peoples whom it will embrace and unite. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE Mr. SYMON (South Australia).- We who are assembled in this Convention are about to commit to the people of Australia a new charter of union and liberty; we are about to commit this new Magna Charta for their acceptance and confirmation, and I can conceive of nothing of greater magnitude in the whole history of the peoples of the world than this question upon which we are about to invite the peoples of Australia to vote. The Great Charter was wrung by the barons of England from a reluctant king. This new charter is to be given by the people of Australia to themselves. END QUOTE HANSARD 17-3-1898 Constitution Convention Debates QUOTE 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 Constitutionthe Government and the Parliament of the day-shall not become the masters of those whom, as to the Constitution, they are bound to serve. What I mean is this: That if you, after making a Constitution of this kind, enable any Government or any Parliament to twist or infringe its provisions, then by slow degrees you may have that Constitution-if not altered in terms-so whittled away in operation that the guarantees of freedom which it gives your people will not be maintained; and so, in the highest sense, the court you are creating here, which is to be the final interpreter of that Constitution, will be such a tribunal as will preserve the popular liberty in all these regards, and will prevent, under any pretext of constitutional action, the Commonwealth from dominating the states, or the states from usurping the sphere of the Commonwealth. END QUOTE

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In my view, Mr Ashby not only has a right but a duty to disclose details that he held were contrary to the legal principles embedded in the constitution.
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Hansard 1-3-1898 Constitution Convention Debates QUOTE

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Mr. HIGGINS.-Suppose the sentry is asleep, or is in the swim with the other power? p6 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

Page 7 Mr. GORDON.-There will be more than one sentry. In the case of a federal law, every member of a state Parliament will be a sentry, and, every constituent of a state Parliament will be a sentry. As regards a law passed by a state, every man in the Federal Parliament will be a sentry, and the whole constituency behind the Federal Parliament will be a sentry.

END QUOTE
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This may underline that Mr Ashby had a duty as a sentry to expose any what he may have deemed inappropriate conduct. Indeed, if he had remained silent he very well may have been subjected to the following authority:
Sorell v Smith (1925) Lord Dunedin in the House of Lords QUOTE In an action against a set person in combination, a conspiracy to injure, followed by actual injury, will give good cause for action, and motive or instant where the act itself is not illegal is of the essence of the conspiracy. END QUOTE
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If I were to be aware or suspect someone commits a crime and I remain silent then I could be held as much liable as the person committing the crime. Albeit I am not a lawyer as author of books in the INSPECTOR-RIKATI series on certain constitutional and other legal issues it is always of concern to me that I reflect what I deem is the true meaning and application of the constitution. .

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In my view, if Ms Ashby did disclose details, this is not an issue for me to determine, then I view he would have done so in what the Framers of the Constitution intended as a Parliament that operates for the people. Political Liberty must be understood to be as what the Framers of the Constitution at the time perceived what it was and they also debated that the media ought to report matters so the People would be aware of what went on. Judicial decision must therefore reflect this kind of Political Liberty. Again
Hansard 31-1-1898 Constitution Convention Debates 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 . Hansard 1-2-1898 Constitution Convention Debates 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
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Awaiting your response,

G. H. Schorel-Hlavka O.W.B.

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Note: The author comprehensively defeated the Commonwealth of Australia on 19 July 2006 in the County Court of Victoria as to FAILING TO VOTE where some 50 submissions upon constitutional matters including a s78B NOTICE OF CONSTITUTIONAL MATTERS remained UNCHALLENGED.

MAY JUSTICE ALWAYS PREVAIL

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Our name is our motto!)

p7 24-7-2012 G. H. Schorel-Hlavka O.W.B. INDEPENDENT Consultant (Constitutionalist) to; FOLEYS LAWYERS, Email: Kevin@foleyslawyers.com.au INSPECTOR-RIKATI about the BLACK HOLE in the CONSTITUTION-DVD A 1st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0 PLEASE NOTE: You may order books in the INSPECTOR-RIKATI series by making a reservation, See also Http://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati